Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. Enns, 2019 NSSC 323

Date: 20191029

Docket: 482274

Registry: Halifax

 

Between:

 

 

Her Majesty the Queen

 

v.

 

Christopher Enns

 

Constitutional Challenge to s. 5(2) of the CDSA and the ACMPR

 

 

Judge:	The Honourable Justice Joshua Arnold
Heard:	August 14, 15, 16, 19, 20, 21, 22, 26 and 28, 2019, in Halifax, Nova Scotia
Counsel:	Leonard MacKay, for the Crown Jack Lloyd, for the Defence

 

 

 

By the Court:

Overview

[1]             Christopher Enns is charged under s. 5(2) of the Controlled Drugs and Substances Act with having in his possession, for the purpose of trafficking, not in excess of three kilograms of Cannabis (Marihuana) and not in excess of three kilograms of Cannabis (Resin), as well as having in his possession Canadian currency of a value exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 354(1)(a) of the Criminal Code.  The offence date is “on or about November 8, 2017”. 

[2]             During the relevant time period, medical cannabis was regulated by the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230, which were repealed effective October 17, 2018, by SOR/2018-147 (“ACMPR”). 

[3]             Mr. Enns runs a cannabis dispensary called Farm Assist.  He says that during the relevant time period his customers, medically prescribed cannabis users, could not lawfully access the cannabis and cannabis derivatives they required.  He argues that in order for those people to receive their medically prescribed cannabis he had to break the law to supply them.  A number of medical cannabis users testified that they rely on Mr. Enns’ dispensary to provide them with their medical cannabis and derivatives due to restrictions relating to supply, access, quality, strains, cost, method of consumption, and product choice created by the ACMPR  and s. 5(2) of the CDSA.

[4]             Mr. Enns has made a motion in accordance with s. 7 of the Charter of Rights and Freedoms, requesting that the ACMPR and s. 5(2) of the CDSA be declared unconstitutional on the ground that restrictions on access to medical cannabis impact liberty and security of the person by interfering with the physical and psychological integrity of his customers, contrary to the principles of fundamental justice.

[5]             The Crown brought a Vukelich application in relation to Mr. Enns’ motion requesting that his s. 7 Charter challenge be dismissed.  The Crown said the evidence Mr. Enns proposed to call could not establish that the ACMPR had restricted access to cannabis for medical cannabis users such that it interfered with s. 7 Charter rights. Similarly, the Crown said that Mr. Enns’ proposed evidence could not establish that s. 5 of the CDSA  infringed s. 7 of the Charter in these circumstances.  On July 11, 2019, I denied the Crown’s Vukelich application (see R. v. Enns, 2019 NSSC 207).

Standing

[6]             Although Mr. Enns is not claiming that his own s. 7 rights have been infringed, he has standing to bring this Charter challenge in keeping with the principles espoused in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Parker (2000), 49 O.R. (3d) 481 (Ont. C.A.); and R. v. Smith, 2015 SCC 34.  In Smith, the court stated, regarding a similar challenge to the Medical Marijuana Access Regulations, which pre-dated the ACMPRs:

[12]  This overlooks the role the MMARs play in the statutory scheme.  They operate as an exception to the offence provisions under which Mr. Smith was charged, ss. 4 and 5 of the CDSA.  As the majority of the Court of Appeal said, the issue is whether those sections of the CDSA, “as modified by the MMARs, deprive people authorized to possess marijuana of a constitutionally protected right by restricting the exemption from criminal prosecution to possession of dried marijuana” (para. 85).  Nor does the fact that Mr. Smith is not a medical marihuana user and does not have a production licence under the regime mean he has no standing.  Accused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them: see R. v. Morgentaler, [1988] 1 S.C.R. 30; Big M Drug Mart.  Nor need accused persons show that all possible remedies for the constitutional deficiency will as a matter of course end the charges against them. In cases where a claimant challenges a law by arguing that the law’s impact on other persons is inconsistent with the Charter, it is always possible that a remedy issued under s. 52 of the Constitution Act, 1982 will not touch on the claimant’s own situation: ...

[13]  In this case, the constitutionality of the statutory provision under which Mr. Smith is charged is directly dependent on the constitutionality of the medical exemption provided by the MMARs ...  He is therefore entitled to challenge it.

[Emphasis added]

[7]             Similarly, the constitutionality of the statutory scheme under which Mr. Enns is charged is directly dependent on the constitutionality of the medical exemptions provided by the ACMPR.  He is therefore entitled to bring this challenge.

Brief History of the Medical Cannabis Regulations

[8]             Prior to the decision in Parker, medicinal cannabis users were at risk of criminal prosecution for possession if they were unable to receive an exemption under s. 56 of the CDSA.  Section 56, as implemented by S.C. 1996, c. 19, s. 56, permitted the Minister to allow an exemption “on such terms and conditions…[etc.]”  In Parker, Rosenberg J.A., for the court, made the following determinations:

[10] I have concluded that the trial judge was right in finding that Parker needs marijuana to control the symptoms of his epilepsy. I have also concluded that the prohibition on the cultivation and possession of marijuana is unconstitutional. Based on principles established by the Supreme Court of Canada, particularly in R. v. Morgentaler, … where the court struck down the abortion provisions of the Criminal Code, … and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 17 C.R.R. (2d) 193, where the court upheld the assisted suicide offence in the Criminal Code, I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person. I have also found that these violations of Parker's rights do not accord with the principles of fundamental justice. In particular, I have concluded that the possibility of an exemption under s. 56 dependant upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice. I have not dealt with the equality argument raised by the Epilepsy Association because that argument was not raised at trial.

[Emphasis added]

[9]             As a result, Rosenberg J.A. struck down the CDSA prohibition on marijuana possession, with a delayed declaration of invalidity.  Parker was granted a personal exemption from the offence for possession for medical needs.  In giving his reasoning on the s. 7 Charter issue, Rosenberg J.A. said:

[108] In his reasons in Morgentaler, Dickson C.J.C. described the infringement of security of the person in these terms at pp. 56-57:

At the most basic physical and emotional level, every pregnant woman is told by the section that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations. Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress. Section 251 clearly interferes with a woman's bodily integrity in both a physical and emotional sense. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person. Section 251, therefore, is required by the Charter to comport with the principles of fundamental justice.

[Emphasis by Rosenberg J.A.]

[109] The same may be said of the marijuana prohibition in this case. That prohibition tells Parker that he cannot undertake a generally safe medical treatment that might be of clear benefit to him. Under the former Narcotic Control Act there was no procedure that he could effectively access that would allow him to grow or possess marijuana without threat of criminal sanction. Under the Controlled Drugs and Substances Act, the Crown submits that there are lawful means by which he can possess marijuana. I will deal with this aspect of the case below in considering the principles of fundamental justice and s. 1 of the Charter. It is sufficient to say that those procedures involve criteria unrelated to Parker's own priorities and aspirations. They involve criteria concerned with much larger questions of drug policy and controls unrelated to Parker's own needs.

[110] Finally, the marijuana prohibition infringes Parker's security of the person in the same way as explained by Sopinka J. in Rodriguez. That holding, similar to the holding of Beetz J. in Morgentaler, protects the right to make choices concerning one's own body and control over one's physical and psychological integrity free from interference by criminal prohibition. Preventing Parker from using marijuana to treat his condition by threat of criminal prosecution constitutes an interference with his physical and psychological integrity.

[111] Accordingly, Parker established that the marijuana prohibition in the two statutes deprived him of his right to security of the person. Again, in light of this finding it is unnecessary to consider the impact upon other patients seeking to use marijuana to treat their illnesses. However, as with the right to liberty I would have found that Parker established that the marijuana prohibition deprives other persons of their security of the person because it prevents them on pain of criminal prosecution from using medication found to be effective to treat the symptoms of their very serious illnesses.

[10]         In his discussion of whether the prohibition was consistent with the principles of fundamental justice, Rosenberg J.A. said:

[144] The blanket prohibition on possession and cultivation, without an exception for medical use, does little or nothing to enhance the state interest. To the extent that the state's interest in prohibiting marijuana is to prevent the harms associated with marijuana use including protecting the health of users, it is irrational to deprive a person of the drug when he or she requires it to maintain their health. As in Morgentaler, the court must consider the actual effect of the legislation. While the exemption for therapeutic abortions was designed to preserve the pregnant woman's health, it had the opposite effect in some cases by imposing unreasonable procedural requirements and delays. If the purpose of the marijuana prohibition is to protect the health of users and thereby eliminate the related costs to society, the overbroad prohibition preventing access to the drug to persons like Parker, who require it to preserve their health, defeats that objective. Other harms, such as impaired driving, must be considered in context. For example, prohibiting the small number of seriously ill patients who require it from having access to marijuana does little to enhance the state interest in the safety of the highways.

[145] It is also fair to take into account the extent of harm the marijuana prohibition is designed to protect against. As McLachlin J. said in Cunningham v. Canada at pp. 151-52, fundamental justice requires that a fair balance be struck between the interest of the person who claims his liberty or security interest has been limited and the protection of society. If the harm against which society must be protected is relatively limited, less limitation on the liberty and security interests will be tolerated especially when the infringement on the person's rights is grounded in a risk to life and health. The evidence at trial demonstrated that the side effects of marijuana use are almost trivial compared to the side effects of the conventional medicine Parker also takes. As pointed out, no one has ever died from ingestion of marijuana.

[11]         As a result of the decision in Parker, Canada was required to create a constitutionally sound exemption to the prohibition of the possession of cannabis for individuals with medical approval.  Therefore, in 2001, the Medical Marihuana Access Regulations were promulgated.  Under the MMARs, if medically approved, an individual could apply to Health Canada for an Authorization to Possess dried cannabis.  The MMAR also allowed for a Personal Use Production Licence or a Designated-person Production Licence to produce cannabis.  The MMAR only allowed for the production and supply of dried cannabis, but not for other forms of cannabis, such as edibles, topical products, or other derivatives.  The purchase or sale of cannabis was also prohibited.

[12]         The MMARs were the subject of several successful constitutional challenges.  In Hitzig v. Canada (2002), 171 C.C.C. (3d) 18, [2003] O.J. No. 12 (Ont. Sup. Ct. J.), Lederman J. found the MMARs to be unconstitutional, since they did not allow “seriously ill Canadians to use marijuana because there is no legal source or supply of the drug…” (para. 179).  Justice Lederman said that the MMARs “fail to provide individuals who have a serious medical need to use marijuana with a legal source and safe supply of their medicine” (para. 8).  He described the methods used to obtain cannabis under the MMAR:

[38]      The MMAR provide two ways for adult holders of ATPs to obtain marijuana for their medical needs. Either the holder of an ATP can apply for a Personal-use Production Licence (PPL) to grow his or her own marijuana, or he or she can apply for a Designated-person Production Licence (DPL) to authorize someone else to grow for his or her therapeutic needs.

[13]         As Lederman J. noted:

[41]  …  Although s. 54 permits the holder of a licence to produce marijuana in common with up to two other licence holders, larger scale “compassion club” type arrangements remain illegal under the MMAR.

[14]         In discussing some of the gaps in the practical use of the MMARs, Lederman J. stated:

[45]  The supply issue is a crucial aspect of the MMAR.  Although Health Canada’s description of “How the Regulations Work” assures holders of ATPs that they can obtain their medicinal marijuana by growing it themselves, having a designated person grow it for them, or possibly acquiring it from a licensed supplier in the future, the reality is somewhat different.

[46]  In order to grow or obtain marijuana, licensed users and growers ultimately have no choice but to turn to the black market to get seeds, plants, or dried marijuana.

[47]  While s. 51 of the MMAR permits the Minister (or a designated person) to import and possess marijuana seed “for the purpose of selling, providing, transporting, sending or delivering” it to licensed dealers or the holders of a licence to produce, the Minister is not required to do so and has not exercised her discretion in this respect.  The result is something of an “absurdity,” as Madame Justice Acton noted of the old s. 56 exemption process in R. v. Krieger, 2000 ABQB 1012 (CanLII) (Q.B.) at para. 36:

[I]n order to obtain the product, that individual is required to participate in an illegal act, since whoever sells the exempted person either the raw cannabis marihuana or the seeds to grow their own, does so in breach of s. 5(2) of the CDSA.

[48]  In the absence of a government supply, those who have been authorized to use marijuana or have been granted licences to produce it are forced to seek it on the street and rely on criminal drug dealers.  The truth of this assertion is borne out by the testimony of the applicants, as described below.  This sad state of affairs is at odds with both drug control and compassionate access objectives underlying the MMAR, and has significant ramifications for the legal analysis below.

[15]         In dismissing the Crown’s appeal, at (2003), 231 D.L.R. (4^th) 104, [2003] O.J. No. 3873, the Ontario Court of Appeal stated:

[103]  The medical exemption scheme puts those people at risk of prosecution and imprisonment when they use the medication they need but do not have an ATP or cannot observe its conditions.  Moreover, the MMAR provide them with very limited and ineffective access to marihuana through their own PPL or from a DPL holder.  Apart from this, the criminal prohibition in s. 5 of the CDSA applies to anyone who would supply them with marihuana.  The reality of supply thus is that this criminal sanction stands between those in medical need and the marihuana they require.  That is the effect of the MMAR.

[104]  Even apart from these criminal sanctions for non-compliance, the MMAR constitute significant state interference with the human dignity of those who need marihuana for medical purposes.  To take the medication they require they must apply for an ATP, comply with the detailed requirements of that process, and then attempt to acquire their medication in the very limited ways contemplated by the MMAR.  These constraints are imposed by the state as part of the justice system’s control of access to marihuana. As such, they are state actions sufficient to constitute a deprivation of the security of the person of those who must take marihuana for medical purposes.  They are state actions within the administration of justice that stand between those in medical need and the marihuana they require.

[105]  In summary, we conclude that the MMAR constitute a scheme of medical exemption which deprives those who need to take marihuana for medical purposes of the rights to liberty and security of the person. This is a threshold violation of s. 7.  We are therefore required to turn to the question of whether this deprivation is in accordance with the principles of fundamental justice.

…

[107]  Context is crucial to both the identification of the operative principles of fundamental justice and the determination of whether any threshold violation of an individual’s rights under s. 7 is consistent with the principles of fundamental justice at play:  R. v. White, supra, at 436-40.  The Hitzig applicants assert the right to make a fundamental personal decision concerning how best to treat serious symptoms associated with life threatening medical problems:  R. v. Parker, supra, at 228-29.  The Government has recognized since 1999, that for some seriously ill individuals, marihuana is a medically useful and appropriate medication.  The Government has accepted that those individuals must be able to obtain and use marihuana for medical purposes without fear of criminal prosecution.  At the same time, however, the Government is obliged to protect the public health and safety of all of its citizens through the regulation of the medicinal use of substances like marihuana.  The Government contends that public health and safety concerns include potential health risks from long-term use, the Government’s need to comply with stringent international controls on the use and distribution of marihuana, and the Government’s obligation to combat the criminal drug trade, which includes the illicit distribution of marihuana for non-medical purposes.

…

[127]  The previous appellate decisions dealing with the constitutionality of medical exemptions to the prohibition against marihuana possession point directly at the result reached by Lederman J. on the supply issue.

[128]  Thus, we conclude that in setting up a scheme of medical exemption which depends on an illicit source of supply, the MMAR do not accord with the principles of fundamental justice.

[16]         The MMARs were amended at least a half-dozen times after they came into force.  They were ultimately repealed effective 2014 (SOR/2013-119, s. 267) and replaced with the MMPRs.  The MMARs were the subject of another Charter challenge in R. v. Boehme, 2016 BCSC 2014, where Baird J. outlined the issue as follows:

[2]  This is a ruling on Mr. Boehme’s challenge to the constitutionality of the Medical Marihuana Access Regulations, … the legislative scheme by which, until its repeal on March 31, 2014, Parliament purported to create a constitutionally adequate medical exemption to the near-total CDSA prohibition against possession and distribution of marihuana.

[3]  The question is whether the CDSA prohibition as modified by the MMAR in effect at the time of Mr. Boehme’s arrest violated the right of any affected individual to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. This right is guaranteed to all citizens by s. 7 of the Canadian Charter of Rights and Freedoms.

[17]         In denying Mr. Boehme’s s. 7 application, Baird J. found:

[29]  The constitution recognises no free-standing right to use or supply marihuana. The government has the authority and is bound by international obligation to control the circulation of this substance except for medical or scientific purposes. It may do this by recourse to its criminal law power. The government must ensure, by whatever means it deems suitable, that there is an adequate exemption for authorised medical marihuana patients, but otherwise criminal prohibition is constitutionally acceptable. A legal framework that incorporates a reasonable medical exemption will accord with the principles of fundamental justice. One that does not will violate those same principles by depriving patients of medicine or forcing them to break the law to get it.

…

[66]  The combined object and purpose of the CDSA and the MMAR was the protection of public health and safety... For the reasons given above, the evidence does not establish that ATP holders were compelled to resort to illegal supply sources because of MMAR supply restrictions, or that there was an insufficient supply to meet the needs of ATP holders. Because of this absence of evidence, I am unable to conclude the law was not capable of fulfilling its purpose, did not further the public good, or limited individual rights in a manner that bears no connection to its objects.

…

[74]  ... There is no doubt that Parliament has the constitutional authority, in the interests of public health and safety, to prohibit the circulation of marihuana outside a licenced commerce created by regulatory exemption for authorised medical use. While it seems that this long-standing government policy may soon be changed — Parliament has the power to legalize as well as criminalize — for present purposes I will simply say that unregulated, unlimited patient choice in the matter of medical marihuana is not constitutionally mandated. No unlicensed individual has a constitutional right to produce, distribute or use marihuana.

[18]         Justice Baird undertook a detailed review of caselaw where applicants alleged violation of s. 7 of the Charter regarding access to medical cannabis, starting with Parker and R. v. Krieger, 2000 ABQB 1012, affirmed 2003 ABCA 85:

[10]  In R. v. Parker [and] R. v. Krieger … the near-total prohibition against possession of marihuana was struck down as it related to individuals with a proven need to use the substance to manage serious illnesses. In both cases the court held that criminalisation of urgent palliative treatment amounted to an unsalvageable denial of s. 7 of the Charter of Rights and Freedoms by forcing the litigants, essentially, to choose between health and imprisonment.

[11]  Parliament responded by enacting the first of several iterations of the MMAR under which patients declared by their medical practitioners to be suffering from specified categories of major illness, in circumstances where all conventional treatments had been tried or considered, could now be granted an Authorization to Possess (“ATP”) marihuana for medical purposes.

[12]  The MMAR provided for two types of production license: a Personal Use Production License to cultivate marihuana for the grower’s own authorised medical use, and a Designated Person Production License permitting the grower to cultivate marihuana for another authorized individual’s medical use. An authorized individual could acquire one licence or the other but not both. A particular production site could not be used for more than three production licenses.

[19]         Justice Baird went on to discuss Hitzig, and its challenge to the constitutionality of the MMARs.  He pointed out that the court in Hitzig had held that the “gatekeeper” function of doctors was constitutionally valid, but reached a different conclusion on “the supply side”:

[14]  On the supply side, however, the court ruled that the MMAR failed to provide a constitutionally adequate exemption permitting the lawful production of sufficient quantities of marihuana to meet the prescribed needs of ATP holders. The evidence established that many ATP holders were incapable of growing their own marihuana because of serious illness or physical limitation — not surprising, perhaps, as the symptoms deemed to be treatable by the MMAR were mostly associated with terminal illness (Category 1) or cancer, AIDS, multiple sclerosis, spinal cord injury, epilepsy, and severe forms of arthritis (Category 2). The court also found that designated producers were hard to come by, not least of all because they were forbidden from charging for their services or adequately pooling their resources. The regulatory scheme also omitted to deal with “startup” issues — ATP holders were permitted to grow their own marihuana, for example, but there was no lawful means of acquiring seeds written into the regulations.

[15]  This combination of factors led to a dearth of supply which the court concluded had the effect of forcing patients into the black market. The court said at para. 71:

The record here makes clear that these limitations on supply in the MMAR present real and significant challenges to ATP holders. Many individuals who establish the requisite medical need under the MMAR and obtain ATPs will have to go to the black market on a more or less regular basis to maintain their supply of medical marihuana. As the Government acknowledged in argument, the MMAR scheme assumes the existence of the black market in marihuana. Indeed, it depends on the black market. Without the black market, the scheme set out in MMAR would be a sham. In short, in their actual operation, the MMAR require what is, as far as we know, a unique partnering of the Government and the black market to fill serious and recognized medical needs.

[16]  The principles of fundamental justice, the court held, include not just the state’s obligation to obey the law, but its duty not to be complicit in law-breaking. The unconstitutional effect of the inaugural version of the MMAR scheme was that it relied on criminals to supply medicine to patients, compelled patients to engage in unlawful activity, and contributed to the very illegal trade that the CDSA was enacted to prohibit. In short, it corrupted patients and brought the law into disrepute.

[17]  The court’s solution was to unfetter designated producers by striking down the MMAR prohibitions against compensation, growing for more than one ATP holder (“the 1:1 producer to consumer ratio”), and cultivating marihuana in common with more than two other designated producers. The ruling also recognised the constitutional reality that it was for Parliament to devise the best means of addressing supply shortages, including placing reasonable limits on the remedies presently ordered by the court — for example, by restricting the size of marihuana grow operations that designated producers could undertake — or, for that matter, by returning to the drawing board and enacting an entirely new scheme of regulations.

[20]         Justice Baird noted that Health Canada had begun responding to the deficiencies in the MMARs while Hitzig was still before the court system:

[18]  Before the appeal judgment in Hitzig was handed down, in fact, Health Canada had already instituted an interim policy for the supply of marihuana and seeds to ATP holders. This policy introduced into the supply mix, in addition to personal and designated production, the option of acquiring marihuana through Health Canada from a contract supplier called Prairie Plant Systems (“PPS”). The Ontario Court of Appeal in Hitzig was made aware of this policy but the government restricted its argument on the appeal to the adequacy of the MMAR exemption then on the books — the exemption, that is, that had been ruled upon by the trial judge.

[19]  When the Hitzig appeal decision confirmed the unconstitutionality of the MMAR provisions previously discussed, the new seed and dried marihuana policy was officially incorporated by amendment into the MMAR. Henceforth, ATP holders could acquire their supply of medical marihuana by previously permitted means or from PPS through Health Canada. The government clearly considered that this innovation would cure the supply deficit identified in Hitzig, because other than the prohibition against designated producers charging for their services, the supply-limiting restrictions of the MMAR that the court had struck down were simply re-enacted.

[20]  On the present application, counsel for Mr. Boehme argued that this re-enactment was a form of legislative cheek or provocation. The less emotional or partisan view is that the federal government considered the combination of personal production, designated production, and PPS supply would yield enough medical marihuana for everyone authorised to use it. I would note in this connection the absence of evidence or argument before me that PPS failed to produce adequate quantities, or that a particular form, strain or type of marihuana was reasonably required to be medically exempted.

[21]         Justice Baird went on to consider the post-Hitzig authorities:

[21]  A couple of months after publication of Hitzig, the Supreme Court of Canada handed down its reasons in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74... This case confirmed that the distribution and possession of marihuana continued to be appropriate for Parliament’s control and proscription using the criminal law. Palliative medical use by seriously ill patients on the advice of their medical practitioners was one thing, but for everyone else the court endorsed the view that marihuana is an untested psychoactive drug that causes alteration to mental functions raising legitimate issues of public health and safety. The judgment made clear that there is no freestanding constitutional right to use marihuana for recreational or non-medical purposes, and criminal sanctions may continue to be constitutionally applied to users, traffickers, and growers operating outside lawfully prescribed exemptions.

[22]  Thereafter things seem to have trundled along happily enough until Sfetkopoulos v. Attorney General, 2008 FC 33, a decision that once again declared unconstitutional the 1:1 producer to consumer ratio. Strayer D.J. observed that the only change in the MMAR since Hitzig was the advent of PPS, which was not enough, he said, because even four years after its introduction the evidence showed that only 20 per cent of ATP holders purchased from this source. Strayer D.J. acknowledged that PPS marihuana broadened supply and specifically declined to pass judgement on its quality or medical effectiveness, but nevertheless he ruled at paras. 19 and 20 as follows:

[19]  In my view it is not tenable for the government, consistently with the right established in other courts for qualified medical users to have reasonable access to marihuana, to force them either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers. At the moment, their only alternative is to acquire marihuana illicitly and that, according to Hitzig, is inconsistent with the rule of law and therefore with the principles of fundamental justice.

[20]  I also find that [the 1:1 producer-consumer ratio] is inconsistent with the principles of fundamental justice because it is arbitrary in the sense that it causes individuals a major difficulty with access while providing no commensurate furtherance of the interests of the state.

[23]  This decision was upheld in the Federal Court of Appeal (see 2008 FCA 328) and leave to the Supreme Court of Canada was denied (see [2008] S.C.C.A. No. 531). Faced with the immediate absence of any legislative restriction on the number of licences a designated producer could hold, the government amended the MMAR by setting a 1:2 producer to consumer ratio (one producer could now provide marihuana to a maximum of two patients instead of one).

[24]  Before the Sfetkopoulos amendment took force, medical marihuana was back in court in R. v. Beren and Swallow, 2009 BCSC 429. In that case Mr. Beren was charged with production and possession of marihuana for the purposes of trafficking. He challenged the constitutionality of MMAR supply restrictions on the basis that they continued to fail to provide ATP holders with adequate practical access to their medicine. The Crown's position, as in the present case, was that the MMAR created a sufficient lawful supply and those who were not getting their marihuana from legal sources were doing so by choice rather than necessity. Such a choice, the Crown specified, was not constitutionally protected.

[25]  Koenigsberg J. rejected the Crown’s argument. Relying on Hitzig and Sfetkopoulos she declared unconstitutional not only the 1:1 producer to consumer ratio, but also the provision restricting designated producers from growing marihuana at a single location with more than two other licence holders. In her view the medical marihuana jurisprudence suggested that a constitutional scheme of regulation might be to licence private producers to supply different strains of marihuana to multiple clients. She said at para. 133 that for such a scheme to have a reasonable prospect of constitutional survival, “it must be done without unduly restricting the ability of such [licenced producers] to take advantage of economies of scale, carry out research on the efficacy of varying strains of cannabis, and/or other desirable activities directed toward improving access to medical treatments to eligible patients.”

[22]         Finally, Baird J. took note of the substitution of the MMPRs for the MMARs, and the subsequent caselaw:

[26]  Eventually this advice was heeded in general terms in the form of the Marihuana for Medical Purposes Regulation, SOR/2013-119 (MMPR) which replaced the MMAR. But this was not until March 2014, fully five years later. During the interval, after leave to appeal Beren to the Supreme Court of Canada was denied (see [2009] S.C.C.A. No. 272), the MMAR were amended to permit a maximum of four designated licence holders to produce at a single site.

[27]  Thus at the time Mr. Boehme was arrested, the options for access to marihuana for ATP holders were personal production; designated production on a 1:2 producer to consumer ratio and a maximum of four designated licences per growing location; and purchasing from PPS through Health Canada. The concomitantly published RIAS announcing the Sfetkopoulos and Beren amendments referred to them as stop-gap measures while the government evaluated longer term options.

[28]  In the meantime R. v. Mernagh, 2013 ONCA 67 was decided. This judgment established that there is no constitutional right for people to use marihuana for therapeutic reasons of their own conception. The requirement of a doctor’s medical declaration stating that all conventional treatments had been tried or considered was upheld. The court emphasised the continuing need for strict regulation of medical marihuana not only by legislation but by the Canadian medical profession. This was not only to protect the health and safety of citizens in relation to an untested psychoactive drug, but to comply with international conventions requiring the federal government to forbid marihuana distribution and use except for medical or scientific purposes (para. 108).

[23]         In addition to Parker, Hitzig, Malmo Levine, Sfetkopoulos, Beren and Swallow, and Mernagh, as referenced by Baird J., in Boehme, courts also considered the constitutionality of the MMARs in Sfetkopoulos v. Attorney General, 2008 FCA 328, where the trial decision was affirmed, and in Smith.

[24]         In the Federal Court of Appeal decision in Sfetkopoulos, the court upheld the trial judge’s decision striking down the iteration of the MMARs the court was reviewing.  Evans J.A. stated, for the court:

[2]  The almost identically worded predecessor of section 41(b.1) of the MMAR was struck down by the Court of Appeal for Ontario in Hitzig … on the ground that it violated section 7. The only substantive issue in the present case is whether the Government’s policy of licensing a single dealer to produce marihuana for distribution to those authorized to possess it for medical use provides an adequate licit supply of marihuana to authorized possessors in order to satisfy section 7...

...

[4]  In oral argument, counsel for the Crown made two principal points. First, he said that Deputy Judge Strayer erred in law by imposing on the Crown the burden of establishing that the policy was not in breach of the principles of fundamental justice because it imposed a reasonable restriction on access to medical marihuana. We do not agree. When the Judge’s reasons are read as a whole, including his statement that the Crown bears the burden of proof under section 1 and therefore has a more difficult task than under section 7, we are not persuaded that he erred as alleged. It is also important to read the Judge’s reasons against the background of this litigation, namely that the predecessor to the provision of the MMAR impugned in this case has already been held to be invalid, and the only question in the present case is whether the Crown’s policy, introduced in 2003, makes a difference.

[25]         In Smith, the Supreme Court of Canada outlined the issues and explained the MMAR regulatory scheme being constitutionally challenged regarding medical cannabis access and use:

[1]  The Court — Regulations under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), permit the use of marihuana for treating medical conditions.  However, they confine medical access to “dried marihuana”, so that those who are legally authorized to possess marihuana for medical purposes are still prohibited from possessing cannabis products extracted from the active medicinal compounds in the cannabis plant.  The result is that patients who obtain dried marihuana pursuant to that authorization cannot choose to administer it via an oral or topical treatment, but must inhale it, typically by smoking. Inhaling marihuana can present health risks and is less effective for some conditions than administration of cannabis derivatives.

[26]         The issue on the appeal in Smith was whether the limitation of medical access to dried marihuana alone was a violation of s. 7.  Describing the statutory and regulatory background, the court said:

[3]  The CDSA prohibits the possession, production, and distribution of cannabis, its active compounds, and its derivatives.  In recognition of the fact that controlled substances may have beneficial uses, the CDSA empowers the government to create exemptions by regulation for medical, scientific or industrial purposes (s. 55).  The Marihuana Medical Access Regulations, SOR/2001-227 (“MMARs”), created such an exemption for people who could demonstrate a medical need for cannabis.  Applicants had to provide a declaration from a medical practitioner certifying that conventional treatments were ineffective or medically inappropriate for treatment of their medical condition.  Once they had met all the regulatory requirements, patients were legally authorized to possess “dried marihuana”, defined as “harvested marihuana that has been subjected to any drying process” (s. 1).  Some patients were authorized to grow their own marihuana, under a personal-use production licence (s. 24), while others obtained the drug from a designated licensed producer (s. 34).

[27]         In determining that the MMARs violated s. 7 of the Charter by limiting medical cannabis users to the use of dried cannabis, the court held that it did so in two ways:

[17]  First, the prohibition on possession of cannabis derivatives infringes Mr. Smith’s liberty interest, by exposing him to the threat of imprisonment on conviction under s. 4(1) or s. 5(2) of the CDSA. Any offence that includes incarceration in the range of possible sanctions engages liberty: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 515.  The prohibition also engages the liberty interest of medical marihuana users, as they could face criminal sanctions if they produce or possess cannabis products other than dried marihuana.  We cannot accede to the dissenting judge’s position on this point: the MMARs do not authorize medical marihuana users to convert dried marihuana into its active compounds.  An authorization to possess medical marihuana is no defence for a patient found in possession of an alternate dosage form, such as cannabis cookies, THC-infused massage oil, or gel capsules filled with THC.

[18]  Second, the prohibition on possession of active cannabis compounds for medical purposes limits liberty by foreclosing reasonable medical choices through the threat of criminal prosecution:  Parker, at para. 92.  In this case, the state prevents people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug.  On the evidence accepted by the trial judge, this denial is not trivial; it subjects the person to the risk of cancer and bronchial infections associated with smoking dry marihuana, and precludes the possibility of choosing a more effective treatment.  Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law also infringes security of the person: Morgentaler; Hitzig v. Canada (2003), 231 D.L.R. (4th) 104 (Ont. C.A.).

[28]         As to the question of whether the limitation was contrary to the principles of fundamental justice, the court in Smith said:

[22]  The trial judge found that the limits on liberty and security of the person imposed by the law were not in accordance with the principles of fundamental justice, because the restriction was arbitrary, doing “little or nothing” to further its objectives, which he took to be the control of illegal drugs or false and misleading claims of medical benefit.  The majority of the Court of Appeal, which found that the objective of the prohibition was the protection of public health and safety (relying on Hitzig and Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134), likewise concluded it did not further that objective and was thus arbitrary and contrary to the principles of fundamental justice.

[23]  It is necessary to determine the object of the prohibition, since a law is only arbitrary if it imposes limits on liberty or security of the person that have no connection to its purpose: Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, at para. 98.

[24]  The Crown does not challenge the Court of Appeal’s conclusion that the object of the prohibition on non-dried forms of medical marihuana is the protection of health and safety.  However, it goes further, arguing that the restriction protects health and safety by ensuring that drugs offered for therapeutic purposes comply with the safety, quality and efficacy requirements set out in the Food and Drugs Act, R.S.C. 1985, c. F-27, and its regulations.  This qualification does not alter the object of the prohibition; it simply describes one of the means by which the government seeks to protect public health and safety.  Moreover, the MMARs do not purport to subject dried marihuana to these safety, quality and efficacy requirements, belying the Crown’s assertion that this is the object of the prohibition. We therefore conclude that the object of the restriction to dried marihuana is simply the protection of health and safety.

[25]  The question is whether there is a connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana.  The trial judge concluded that for some patients, alternate forms of administration using cannabis derivatives are more effective than inhaling marihuana.  He also concluded that the prohibition forces people with a legitimate, legally recognized need to use marihuana to accept the risk of harm to health that may arise from chronic smoking of marihuana.  It follows from these findings that the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care.  The effects of the prohibition contradict its objective, rendering it arbitrary: see Bedford, at paras. 98-100.

[26]  The Crown says there are health risks associated with extracting the active compounds in marihuana for administration via oral or topical products.  It argues that there is a rational connection between the state objective of protecting health and safety and a regulatory scheme that only allows access to drugs that are shown by scientific study to be safe and therapeutically effective.  We disagree.  The evidence accepted at trial did not establish a connection between the restriction and the promotion of health and safety.  As we have already said, dried marihuana is not subject to the oversight of the Food and Drugs Act regime.  It is therefore difficult to understand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permitting them to smoke or vaporize dried marihuana.  Moreover, the Crown provided no evidence to suggest that it would. In fact, as noted above, some of the materials filed by the Crown mention oral ingestion of cannabis as a viable alternative to smoking marihuana.

[27 Finally, the evidence established no connection between the impugned restriction and attempts to curb the diversion of marihuana into the illegal market.  We are left with a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object.  This renders it arbitrary: see Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, at para. 83.

[28] We conclude that the prohibition of non-dried forms of medical marihuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.  It therefore violates s. 7 of the Charter.

[29]         As to section 1, the court held that “the same disconnect” between prohibition and objective that invalidated the limitation under s. 7 caused it to fail the “rational connection” test under s. 1 (para. 29).

[30]         As noted, the MMARs were replaced by the MMPRs in March 2014:  SOR/2013-119.  Justice Phelan explained the regulatory changes in Allard v. Canada, 2016 FC 236:

[19]  The MMAR, prior to its repeal and replacement with the MMPR, permitted individuals who had the support of a medical practitioner to obtain an Authorization to Possess [ATP] marihuana for medical purposes from Health Canada.

[20]  The MMAR did not set any limit on the daily dosage a doctor could authorize – however, it did impose a cap on the amount of marihuana that an ATP holder could possess at 30 times (30x) one’s daily dosage.

[21]  Under the MMAR, ATP license holders could obtain lawful access to marihuana in one of three ways:

1.  through a Personal-Use Production Licence [PUPL], which permitted the individual ATP license holder to grow a certain quantity of marihuana for his or her own use;

2.  through a Designated Person Production Licence [DPPL] that permitted a person designated by an ATP license holder to produce marihuana for up to two (2) ATP licence holders; or

3.  through purchasing dried marihuana directly from Health Canada which had contracted with a private company to produce and distribute medical marihuana.

[22]  The production of marihuana under a PUPL or DPPL could only be conducted at the site designated on that licence.

Cultivation could be indoors or outdoors, although not both at the same time.

[23]  There were no restrictions as to the location of the production facility beyond the fact that if outdoors, it could not be adjacent to a school, public playground, day care facility or other public place frequented mainly by persons less than 18 years of age.

There were mandatory compliance requirements that licence holders had to meet including compliance with all local by-laws.

[24]  The number of plants that could be grown by a person with a production licence was calculated using a formula set out in the MMAR based primarily on the ATP licence holder’s authorized daily dose. The MMAR permitted up to four production licences to be issued in respect of the same site.

[31]         The court in Allard explained that the evidence showed that concerns about the MMAR, as discussed in the earlier caselaw, had led to the new regime set out in the MMPR.  The court continued:

[38]  In the end, the MMPR completely reformed the medical marihuana access regime, most substantially invalidating all PUPLs and DPPLs and the amount an individual is authorized to possess. It dispossessed licensees of the ability to control the medical marihuana they consumed.

[39]  Justice Manson in his March 21, 2014 Order [the Manson Order] (in which he kept the MMAR largely in place for qualified persons) (Allard v Canada, 2014 FC 280, 451 FTR 45) summarized the situation as follows:

[15]  The MMPR mandates that dried marihuana be produced by a Licensed Producer [LP], pursuant to section 12 of the MMPR. Individuals who formerly were or could be issued an ATP must register the prescription of a medical practitioner with an LP to obtain dried marihuana. If they do so, section 3 authorizes them to obtain and possess marihuana produced by that LP. The amount authorized for possession under section 5 is lower than under the MMAR: either 150 grams or 30 times the amount prescribed for daily consumption by the individual’s medical practitioner, whichever is less.

[16]  An LP is required to meet various quality and security measures as per sections 12-101. This includes provisions in sections 13 and 14 which state that the production site may not be outdoors or in a dwelling-place.

[32]         Justice Phelan detailed a number of problems with the MMPRs, including the risk they created to medical cannabis users who could not access the LP regime for various reasons, including affordability, obtaining proper amounts/dosages, and limitations in accessing strain preference.  Justice Phelan found the impediments to access to medical cannabis created by the MMPRs to be constitutionally offensive.  In determining that the MMPRs were actually more restrictive than the MMARs, he stated:

[190]  The case law decided under the MMAR applies to the analysis of the MMPR’s constitutionality as the case law addressed the limitations and prohibitions imposed on medical marihuana including the cultivation, distribution and use, finding such limitations to engage section 7 rights. The limitations in the MMPR are more impeding than the MMAR in prohibiting home growth, invalidating PUPL and DPPLs and limiting the amount an individual is authorized to possess.

[33]         This caselaw under the MMARs and MMPRs provides the background to the subsequent challenges to the ACMPRs.

The Evidence

 

Applicant

 

          Experts

 

[34]         Mr. Enns called five expert witnesses in support of his application.

[35]         Dr. David Rosenbloom was qualified as an expert on pharmacy and pharmacology, the effect of delayed access to drugs including medical cannabis, and the purchase of drugs.

[36]         Dr. Rosenbloom stated that there are very few high level research studies regarding medical cannabis, and that more research on the subject is required.  He said that for many diseases there was no strong evidence to suggest that cannabis actually helps, but many patients believe it helps.  Dr. Rosenbloom testified that access to traditional medicine in a reasonable time can be important as some conditions worsen if not treated promptly.  He agreed that he had seen nothing in the literature to suggest that delayed access to cannabis could cause harm to patients.  He was not aware of any other medicine in Canada that could only be accessed directly from the manufacturer by mail order.  Nor was he aware of any research that addresses whether or not higher THC cannabis is of any greater medical benefit.  He did say that subjectively a patient may feel that higher THC cannabis is more beneficial. 

[37]         Dr. Stephen Gaetz was qualified as an expert on homelessness and precarious housing in Halifax specifically, and more broadly across the country.  He explained that, compared to the rest of Canada, Halifax has a higher percentage of its populace in rental housing and in precarious housing situations.  He said that people whose housing situation is precarious move frequently. This makes having a cannabis garden more challenging.  Additionally, those in precarious housing are less likely to have a credit card or a bank account.  This has relevance to Mr. Enns’ argument that some medical cannabis users do not have a residence or the financial means to support a cannabis garden of sufficient size to satisfy their authorized medical cannabis allowance or the ability to order cannabis online. 

[38]         Dr. Gaetz also provided some support to Mr. Enns’ argument that a mail order delivery program may not be of great benefit to a medical cannabis patient who is homeless.  There was evidence, however, that medical cannabis can be delivered to homeless shelters.

[39]         Eric Nash was qualified as an expert on cannabis cultivation, production, and cannabis derivatives.  He explained that the cost of equipment to set up a cannabis garden would start at a minimum of between $1000 and $1500 for a very small space.  He described the work required to maintain a cannabis garden, explaining that from planting a seed to consumption of cannabis takes about six to eight months.  He indicated that having a cannabis garden would allow a medical cannabis user to access cannabis at a lower cost than purchasing through an LP, and he said that growing cannabis can be more affordable than buying it at commercial market cost. 

[40]         In Mr. Nash’s opinion, tending a successful cannabis garden could be difficult or impossible for someone with particular medical disabilities.  He also explained that making cannabis derivatives, such as ointments, tinctures and hash, was not a complex process.  He said that other derivatives, such as shatter and salves, could possibly be made at home, but he was not aware of the process.

[41]         Dr. Jokubas Ziburkus was qualified as an expert on the endocannabinoid system, endocannabinoids, phytocannabinoids, cannabis plants and products, and the pre-clinical and clinical research on medical cannabis.  He explained the history of medical cannabis use, the development of cannabinoid products (CBDs) from cannabis and the rise of the use of CBDs in medicine.  Dr. Ziburkus admitted that he has business interests in a cannabis-related company that sells CBD products and also provides education to physicians regarding medical cannabis.  The fact that Dr. Ziburkus profits from a cannabis and CBD company negatively impacts on his credibility.

[42]         Dr. Ziburkus said that effective medicinal amounts of cannabis vary from patient to patient, and so higher concentrates of THC than is allowed under the ACMPR might be required, depending on the individual.  He explained that the quickest delivery system for cannabis is to inhale it by smoking or vapourizing it.  Edible cannabis can take between 15 and 45 minutes to take effect. 

[43]         Dr. Ziburkus said that certain medical issues might need cannabis treatment urgently, such as epilepsy, Parkinson’s disease, and anxiety issues.  He agreed that there is a lack of high level research regarding medical cannabis, claiming that cannabis research has been stifled due to restrictions on its possession in the United States.  He was not able to point to any higher level research that supports cannabis effectively treating cancer, as opposed to symptoms of cancer and the side-effects of cancer treatment.  He also agreed that there are no systematic reviews indicating that cannabis can be used to save lives in relation to any illness.  He further agreed that there is no systematic review supporting the view that higher THC concentrations are more medically effective in humans.  He agreed that higher THC levels would generally increase the risks of adverse effects, such as psychosis reactions.  He also testified that cannabis use can lead to respiratory issues, and that a medical doctor is the best source of advice on medical cannabis use.  Dr. Ziburkus’ cross-examination included the following exchange:

Q:        Now, in relation to the research in medical cannabis, my understanding is that there is a lack of what has been referred to as Level 1 Research, is that fair to say?

A:        It is fair to say that there is a lack.  It is fair to say that that research has been stifled.

Q:        And in the United States, I guess, the experience has been quite troubling because of the Schedule 1 designation, is that correct?  That’s part of the reason why…

A:        The experience for research has been incredibly stifled and limited with access to only one plant derived medications coming from Mississippi that is federally approved and a very low quality with some contamination that has been reported in it, yes.

Q:        Right, that’s because of that Schedule 1 designation though, that’s the big problem here?  It limits scientific research?

A:        Yes.  But it does not apply to other Schedule 1 substances.  United States is leading in Schedule 1 substance research in every substance except for cannabis.

Q:        Interesting.

A:        As we know United States is a leader in medical research and many substance listed, schedule listed substances except for cannabis plant.  So there’s access to synthetic cannabis and THC to be studied and ordered…

Q:        Right.

A:        But not to the cannabis plant derived ones.

Q:        So as a result, would you also agree that the best research to look at would be the systematic reviews of the studies out there?

A:        Yes.

Q:        And that would include the 2017 study from the National Academy of Sciences, Engineering and Medicine?

A:        Sure.

Q:        A study you refer to in your report?

A:        Yes, I refer to that report, yes.

Q:        It would be safe for the court to rely on the information provided in that report?

A:        Yes.

Q:        Not in your report, but in that study by the National Academy?

A:        It’s dated now by two years and everything here moves too fast to actually say that this is the gold standard now.  You can refer to it and it is dated in two years and you can look at the amount of literature and studies that are ongoing, so, yes.

Q:        Okay, well we can get to that perhaps in a moment, but notwithstanding that one proviso this is still a recognized leading study in cannabis, medical cannabis?

A:        Sure.

Q:        Okay.  And that study, the National Academy Study actually relies in large part, in different parts, depending on the topic, on the 2015 report from Whiting?  Is that true?

A:        I’m sorry I didn’t follow the question.

Q:        Actually, I’ll just move on from that, won’t bother with that report.  I wanted to go back through some of your evidence, perhaps I’ll start with your, the report itself that you have presented.  You have for example at paragraph 19 your report indicated that THC has shown to have the capacity to treat cancer.  I think you mentioned that in your direct evidence as well.  You would agree that National Academy’s study is not consistent with that opinion?

A:        In a limited extent it is consistent with it.

Q:        It is consistent with it?

A:        In a limited extent, yes.

Q:        Okay.  The report itself, sorry, the National Academy study states that there is insufficient evidence to support or refute the conclusion that cannabinoids are an effective treatment for cancers.  How is that consistent with your opinion?

A:        First of all I think that when you are referring to treatment with cancer may be different aspects of treatment with cancer.

Q:        Okay before you move on if you are about to.  I’m not talking about symptoms.  I’m talking about treating cancer.

A:        Right, so the report I agree it says the report says it is insufficient.

Q:        Right, but so all you are saying is that there are some studies that support that?

A:        Absolutely.

Q:        Okay.

A:        And there are thousands of case studies that support that.

Q:        You mentioned as well the entourage effect.  You would agree that’s, the literature is mixed on that topic and that there’s no conclusion, fixed conclusion yet about that effect?

A:        My conclusion would be it is overwhelming that the combination of THC and CBD has the most effect on treating cancer cells and certain other conditions.

Q:        You’re limiting that to cancer for the most part?

A:        No, other conditions as well.

Q:        I guess, let me rephrase the question.  You’re not aware of any systematic reviews that would support that position?

A:        Not at the moment, but every review will say that the studies are limited, ongoing and more needed.

Q:        Right, thank you.

A:        So even the studies that say it is inconclusive, you can read in saying that we wish we had more information and that there’s information we don’t have access to and that is hundreds of thousands of medical cannabis patients using, treating themselves for cancer, that is the reality.  I’m not saying it’s a systematic review, double placebo controlled, I’m also saying that in my experience personally with patients and medical doctors with patients, cannabis is being used by cancer patients not only to kill the cancer cells, but to take away the nausea, synthetic cannabinoids, pharmaceutical cannabinoids have been prescribed as a treatment of nausea in cancer.  So when somebody asks me a question about cancer treatment, whether it is killing cancer cells or improving individuals ability to cope with cancer, then there’s ample evidence with pharmaceutical drugs, synthetic, that it improves cancer conditions and ample evidence in case studies in medical cannabis.

Q:        Okay, I thought we had clarified that point.  I don’t take any issue with the treatment of symptoms, I do take issue with the treatment of cancer and you’ve already answered that.  You talked about, in particular I think my friend was trying to get evidence from you that cannabis can be lifesaving, and you talked about for example the anti-seizure properties.  You would agree that the literature doesn’t support generally the use of cannabis for anti-seizure properties?  There are two exceptions for relatively obscure forms of seizure conditions, typically in children, that are now being treated by pharmaceuticals, but putting those two aside, you would agree that there is, the systematic reviews don’t support that cannabis is used for anti-seizure properties?

A:        Given that […] is an approved medication to treat seizures and epilepsy, that […] is CBD.  Ongoing studies are expanding it outside the infantile spasm […] syndrome, the two limiting pediatric conditions that you are referring to, I believe.

Q:        Yes.

A:        Now, multiple states have allowed the use of medical cannabis for seizures in epilepsy in the United States.  There are again thousands of cases of successful treatment.  These are not necessarily published and reported, but they do exist and if you look at lifesaving qualities of cannabis I would refer you to the case by the Zarkler family.  That case was brought up by Child Protective Services in Dallas where the father was giving high concentrations of THC smoke to the daughter to stop her self-mutilating and self-destructive bouts of autism.  It is documented in videos.  It is documented as a court case and Child Protective Services allowed in the state of Texas where it is illegal for the parents to continue the treatment for the severe acute condition.

Q:        Dr. Ziburkus, you’re a scientist right?

A:        Yes.

Q:        Are you seriously asking this court to make some decisions based on one case in Texas?  Do you think that’s scientifically significant for this court to condition one case?  You’ve already admitted that systematic reviews are the better approach than the inconclusive trials.

A:        That is true, but I am saying is we are missing a lot of thousands of cases, not just one case.  There are self-reported cases.  There’s a lot of literature of using cannabis, of self-reporting of improvement of cannabis.  Systematic literature review, double-blinded, random control, placebo control studies are lacking.

Q:        Right, thank you.  And one of the systematic reviews I mentioned the National Academy review states there’s no, that there’s insufficient evidence to support or refute the conclusion that cannabinoids are an effective treatment for epilepsy and you are not aware of any other systematic reviews that would be different?

A:        You know, I can’t answer this completely off the top of my head.  The conclusions of other systematic reviews might be slightly different.

Q:        You’re not…

A:        And I’m not actually, I don’t want to make a conclusion that there’s no other systematic reviews.

Q:        So, if I want to go beyond…

A:        Because…

Q:        If you want to go beyond just anti-seizure or seizure conditions, the statement by you that cannabis can be used in a lifesaving way.  You can’t point to any particular study that would support that?

A:        That would support that cannabis is protective to the brain and prevent deaths.  We can go back to the original study by Edward Maa and Charlotte Figi showing over 300 uncontrollable seizures as day that are debilitating that are being treated by pharmaceutical drugs that are debilitating to children that cause long term harm to children and switching to cannabidiol an extract with CBD was alleviated the seizures.  So when you say lifesaving, if a child or human experiences thousands of seizures over a matter of two years, this could be a way to die slowly.

Q:        Okay.

A:        A lot of these children will also die from what is called sudden unexpected death in epilepsy or SUDEP where they are found dead at night because pharmaceutical medications are failing and as you know there is over 30% of epilepsy patients that are pharmical resistant cases, that means that are not responsive to currently available medications that are pharmaceutical medications and are drawing tremendous benefit from medicinal cannabis preparations.

Q:        Okay, let’s get back to the question which is, what I meant, when I say lifesaving, I mean in a way that Mr. Lloyd questioned you about, which is on an urgent basis.  And so, what I’m suggesting to you that you cannot point to a systematic review that suggests at all that cannabis can be used on an urgent basis to be lifesaving?

A:        A systematic review of acute cannabis used for lifesaving condition, I cannot think off the top of my head, no.

Q:        Thank you.  My friend had asked you about how quickly the cannabinoids can be effective, or you feel the effects of it depending on the way it is administered and you mentioned inhalation is the quickest way to feel the effects, that’s correct?

A:        That is not only the quicker way, but also one of the most efficient ways along with suppositories.

Q:        And edibles would probably be one of the slowest ways to feel the effects?

A:        Edible that you swallow yes, edible that you place under the tongue or buckley on the cheek has a much higher rate of absorption.

Q:        Right, I was going to ask you about that, so the buckle or sublingual administrations, are they fairly close to the same speed as inhalation?

A:        No, they are still, they’re slower but the onset is within minutes.

Q:        Thank you.  There’s some questions about high, what I call high THC and you may not like that term, but cannabis that have a high percent of THC, you’re suggesting have some benefit?

A:        Yes.

Q:        And, once again, I’m to suggest to you that you can’t point to a systematic review that would support that position.

A:        What I have answered previously is we cannot have a double standard in the society and in the courts where we say that if we do animal studies at certain concentrations this translates into humans for pharmaceutical drugs and when we look at the same concentrations it translates into THC or CBD into humans the same way.  So we cannot say that because we have literature and studies on pharmaceuticals at certain concentrations it applies to humans now also.  We cannot say this that is happening with THC or CBD in the research does not apply to humans.  Again, we all understand that there is a lack of double blinded random placebo control studies and that is a limiting factor in drawing some of these conclusions.

Q:        Okay, that’s fair.  From what I hear and from what I’ve read there are studies in relation to animals that support the idea of high THC being more effective for some conditions, true?

A:        Absolutely, combinations of THC, combinations of THC and CBD human cases, human cases from not just one case, I have myself taken continuous medical education with neurologist with oncologist presentencing tens of cases of their patients describing the facts of higher concentration of THC and CBD as the most effective.

Q:        But, and I understand the restrictions you have in relation to humans, but there is no systematic review that has concluded that high THC is effective any more than a lower THC.  You have to agree with that?

A:        Yes.

Q:        And, in fact, higher THC would almost definitely to a higher risk of adverse effects, true?

A:        Higher THC levels for individuals that are sensitive and high THC levels are more prone to strong psychoactive effect or elucidating some side effects of THC.

Q:        Okay…

A:        […] effects of THC.

Q:        Putting aside people that are more sensitive to the THC, you would have to agree with me that generally higher THC increases the risk of adverse effects in humans generally?

A:        Sure.

Q:        And those adverse effects include a greater risk of withdrawal and addiction.  Is that true?

A:        I have not seen a systematic review that addressed addiction levels based on the concentration of THC that has been consumed unless you can point me to one.

Q:        That’s a very good point doctor.  I’m simply suggesting to you, putting aside systematic reviews I would like to conveniently do now, that the higher dose of THC will lead to higher risk of adverse effects.

A:        Yes.

Q:        You’ll agree with that.  And some of the adverse effects for cannabis use include, I’m going to go on to a different example, like the risk of developing psychosis.  Isn’t it recognized…

A:        Psychosis.  Yes, this is one of the adverse side effects.

Q:        And even a higher risk of suicide ideation or attempts of suicide.

A:        To my knowledge, I’m familiar more with being more psychosis prone rather than suicide…

Q:        Okay.

A:        I’m not familiar with the suicide part, but THC can evoke some psychosis attacks and for individuals that are psychosis prone lower concentrations of THC are typically recommended by medical practitioners.

Q:        The risk of psychosis especially in teens and young adults is well-established though, right, for cannabis use?

A:        The adverse effects?

Q:        You can describe it that way, I’m suggesting to you generally that the risk of psychosis by use of cannabis is well-established in late teens, early twenties?

A:        Its, the literature significantly suggests that those that are psychosis prone or have psychosis in the family history of that are at higher risk with THC use.

Q:        Okay, thank you.

[44]         Dr. Zachary Walsh was qualified as an expert on medical cannabis dispensaries, barriers to access to medical cannabis, and cannabis as a substitute for opioid medicines.  He acknowledged that all of the research he relied upon in providing his opinion in this case pre-dates the coming into force of the ACMPRs, being collected during the MMAR and MMPR regimes, and said more research is now required.  Much of his evidence was hearsay, derived from conversations with cannabis dispensary owners, operators, employees, and customers. 

[45]         Dr. Walsh testified that under the MMARs and MMPRs there were barriers to accessing medical cannabis, including limitations on available strains; doctors who were not comfortable signing medical cannabis authorizations; and affordability.  He said that these same limitations continue to exist under the ACMPRs, although there are no published studies regarding the ACMPRs. 

[46]         Dr. Walsh said that many medical cannabis users would prefer face to face contact with someone knowledgeable about medical cannabis, similar to speaking with a pharmacist.  He said medical cannabis users want to discuss, see, and smell cannabis products before purchasing them.  He further explained that with the legalization of cannabis, LPs are being pressured to meet the demands of the recreational market and therefore less resources are available for medical cannabis patients.  As a result, in his view, access to medical cannabis has decreased.

[47]         Dr. Walsh believed that due to legalization, the stigma of medical cannabis use has been reduced and therefore medical doctors are more comfortable prescribing authorizations.  However, he was of the view that affordability and access to strains of choice are still barriers to access.  He agreed on cross-examination that medical cannabis users had access to many more strains under the ACMPRs than they did under the previous regulatory regimes, but said that not all strains are available at all times.  In short, he maintained that access to medical cannabis was still quite restricted under the ACMPRs.

          The Applicant

[48]         The applicant, Christopher Enns, testified that he took most of a degree in microbiology and immunology at Dalhousie University, but did not graduate.  He had no medical education. 

[49]         Mr. Enns said that in 2010-2011 he tried to connect cannabis users with designated persons, but the supply of designated persons was limited and they ran out of referrals at that time.  He then started Farm Assist, a cannabis dispensary.  In addition to products used for growing and ingesting cannabis, he said Farm Assist sold medical cannabis in various of forms including dry leaves, derivatives such as shatter, wax, resin, refined THC distillate, CBD isolate, edibles, topical products, oil, and oil capsules.  He sold between 12 and 18 strains of cannabis.  At least three-quarters of their product was not tested.  The CBD/THC oil and capsules they sold or gave away were sometimes tested for THC content, but not for contaminants, unless specifically requested.  Mr. Enns said none of his staff at Farm Assist had medical training.  He said he and his staff spoke to medical cannabis patients and gave them advice on the best strains and products for their medical needs.  He had clients directly referred to Farm Assist from medical doctors.  He had also helped people he thought might benefit from medical cannabis, but who had not received a medical authorization, to find a doctor.  He also helped customers find designated persons.  He said he had two homeless patients who resided at the Salvation Army.  Mr. Enns said he provided CBD/THC oil capsules to between 30 and 50 cancer patients free of charge. 

          Medical Cannabis Users

[50]         Mr. Enns also led evidence from nine medical cannabis users to explain how the ACMPRs have impacted on them.

[51]         Arthur Alchorn testified that he has chronic bowel issues, anxiety, and depression.  He lived on Income Assistance.  He was prescribed medical cannabis and smoked it to help him relax.  He lives in a one-bedroom apartment.  Mr. Alchorn said that he tried growing his own cannabis, but found it difficult in his apartment due to its small size, and was also worried about being evicted if caught growing cannabis.  He said he did not have $1500 to start a cannabis garden.  He had no credit card, no computer, no mobile phone, and did not shop online.  He had an LP, but did not want to order from an LP due to cost, as he had to purchase his supply of cannabis for an entire month from an LP.  Mr. Alchorn agreed that he paid between $5.00-$5.50 per gram for cannabis at Farm Assist, and $6.00 per gram from an LP with compassionate pricing.  Mr. Alchorn said the LP’s requirement of bulk purchasing strained his budget.  He also complained that delivery from an LP takes too long and that his mailbox was too small to accept a large mail delivery.  Mr. Alchorn did not say that the quality of cannabis available from the LP was inferior or limited in any way.

[52]         Mr. Alchorn preferred to obtain his cannabis from the Farm Assist dispensary, where the cannabis was less expensive, was immediately accessible, and could be purchased in smaller amounts.  He also said that at Farm Assist he could speak directly to the dispensary employees, and he could sample the cannabis prior to purchasing it. 

[53]         Mr. Alchorn did not have a designated person and did not testify about any efforts to locate one.  He said he could not afford to buy enough cannabis to have someone make extracts for him.  As noted, he said he also feared eviction if he grew cannabis or tried to make his own derivatives, although he did not testify that his landlord told him he was at risk of eviction if he did so. 

[54]         Juanita Sherlock was prescribed medical cannabis to help with pain and sleep issues.  She took it orally, topically, and by smoking and vapourizing.  She made her own edibles.  She said she tried using LPs, but did not like the quality or the strains of cannabis available from the first LP she tried, while the second was too expensive and the delivery times were too long.  She then split her prescription between two LPs.  One of them was closed due to regulatory infractions.  She said LP pricing was prohibitive for derivatives, such as oil.

[55]         Ms. Sherlock said she had been on an informal list with a compassion club for three years to find a designated person, but with no match to date.  No further evidence was elicited from her regarding efforts to obtain a designated person.

[56]         Ms. Sherlock said she had grown her own cannabis, but preferred to buy from a dispensary, as it was essentially the same cost as growing her own, but gave her faster access with less work. 

[57]         Stephanie McMullen testified that she had severe epilepsy and a brain tumor.  She had a history of serious seizures, and had PTSD and night terrors.  Ms. McMullen relied on Income Assistance.  Since starting medicinal cannabis, she said, her seizures had lessened in frequency and severity. She did not have a smartphone, a computer, or internet access.  She had tried LPs, but felt they were too expensive and was not sure what type of oil was used as filler in the CBD capsules or whether the particular cannabis strain or product would be helpful.  Ms. McMullen said that her doctor told her to take a high dosage of CBDs.  She used four grams of cannabis per day, taken orally as capsules.  She produced her own CBD capsules, as her LP did not sell what she needed and she could not afford to buy them.  Ms. McMullen provided no evidence as to her efforts to arrange for a designated person.

[58]         Ms. McMullen said she could not afford the start-up cost for a cannabis garden.  She had no bank account and no credit card.  She testified that Mr. Enns had advised her on what cannabis products were best to treat her seizures and her brain tumor.  Through Farm Assist, Mr. Enns provided her with free CBD/THC capsules as needed. 

[59]         Gizelle Lauzier was a 65-year-old cancer survivor, who had been prescribed medical cannabis.  She had a bank account, a credit card, a smartphone, a computer and internet access.  She had an LP but was unhappy with their pricing and product availability.  She had ordered CBD oil from her LP, but found it weak and ineffective.  She provided limited evidence as to whether she had tried to find an LP more to her liking.

[60]         Ms. Lauzier did not produce her own cannabis derivatives and edibles because she lives in an apartment and the smell causes problems with her husband.  She said that she did not grow her own cannabis due to a lack of knowledge and space.

[61]         Ms. Lauzier said the employees at Farm Assist gave her advice about using CBD/THC capsules instead of smoking cannabis.  She used CBD and cannabis capsules daily, obtained free of charge at Farm Assist.  Additionally, friends would regularly make cannabis edibles for her.  Ms. Lauzier did not testify as to whether she had ever pursued a designated person.

[62]         Paul Mitchell lived in a mobile home and received Canada Pension and disability payments as income.  He relied on a food bank and soup kitchen regularly.  He had surgery to remove a cancerous tumour in 2012 and had seen a doctor yearly for skin cancer follow up.  He had high blood pressure, asthma, back problems and acid reflux.  He had been prescribed medical cannabis.  Mr. Mitchell had a home computer but no internet, and a smartphone but no data, due to cost.  He did online banking and could order things online.  He had an LP, but his authorization had expired.  He had obtained a personal production licence, but could not grow enough cannabis to support his needs. As a result he used CBD/THC capsules daily, provided at no cost by Farm Assist.  He said he could not afford to buy those capsules from an LP on his income.  Mr. Mitchell did not provide any evidence as to his efforts to use a designated person.

[63]         Zena Rice said she had arthritis, knee problems, PTSD, anxiety, depression and fibromyalgia.  She was prescribed medical cannabis and said she was allergic to other medication.  Ms. Rice lives on her Canada Pension plan and disability payments.  Her husband had a bank account, but she had no credit card.  She had a laptop and internet access, and could do online banking.   

[64]         Ms. Rice had an LP, but the cannabis she purchased from them was recalled and she subsequently refused to buy from an LP.  She also said she found the LPs too expensive, and that she preferred to see and smell the cannabis before purchasing.  Ms. Rice had started a cannabis garden, with her husband’s help.  She made cannabis edibles, and also smoked and dabbed cannabis.  Additionally, she used shatter, a cannabis derivative, sporadically, but did not know how to produce it.  She bought cannabis products at Farm Assist for a price slightly lower than at an LP.  Ms. Rice provided no evidence as to her efforts to use a designated person.

[65]         Sherry MacDonald said she had struggled with polysubstance addictions for 23 years and had cirrhosis of the liver.  She could not take opiates as a result.  She started having seizures in 2008.  Doctors initially thought she had epilepsy, but she said her seizures were caused by PTSD.  Ms. MacDonald was prescribed medical cannabis and had had no seizures since then.  She said that when she did not have cannabis, she had small seizures. 

[66]         Ms. MacDonald said she received disability payments and Income Assistance.  She had a bank account and a cellular telephone, but no data, computer, or internet.  She smoked cannabis and used edibles.  She also used shatter to help with Irritable Bowel Syndrome, and said the need for that derivative could be urgent.  Ms. MacDonald said she was too ill to have her own cannabis garden.  She did not know how to make shatter.  She said only certain cannabis strains helped her, and it took her a long time to find the best strain for her seizures.  Ms. MacDonald said she purchased her cannabis at Farm Assist because it was less expensive than an LP and she could buy in small amounts.  She had a designated person, who could grow the proper strain, but she said crop quality and availability was inconsistent. 

[67]         Bruno Deveau was a 35-year member of the RCMP.  He retired in 2010.  He had a bank account, credit card, computer and internet access, and said his spouse regularly shopped online.  He was diagnosed with stage 4 esophageal cancer in 2016.  Following his initial medical treatment he was referred to Montreal for a 2.5 year clinical trial.  Because of his poor appetite following chemotherapy, he was prescribed medical cannabis.  He could only ingest cannabis oil because of his cancer and said he used CBD/THC capsules daily.  Mr. Deveau said he initially purchased cannabis from an LP, but the LP’s product was sometimes unavailable or delivered too slowly.  In addition, some was recalled, and some was not strong enough.  Mr. Deveau eventually discovered Farm Assist and received CBD/THC capsules from them.  These capsules helped with his appetite, energy levels, and assisted with pain.  He said Farm Assist gave him capsules for free, and would ship to him all over Canada.  He was also approved for a designated person to produce CBD/THC capsules, but at the time of this hearing Mr. Deveau’s relationship with his designated person was in its early stages.  There was some dispute between counsel in their submissions regarding the evidence of Mr. Deveau on this point.  Mr. Deveau testified as follows:

Q:        Do you have any other sources of medical cannabis?

A:        Yes, I have applied and its been approved.  I have a licence.  I don’t have a licence, but it is approved for a designated grower.

Q:        Do you know how many grams per day your designated grower is entitled to produce for you?

A:        It would be on my form, but I can’t, I forget.

Q:        When did you get the documentation for your designated grower?

A:        I got it approved in January 2019.

Q:        Have you received any cannabis from your designated grower?

A:        We’ve received caps, a little bit of caps and some oil, tintrum is it, no, I forget the name.

Q:        Did your designated person turn the cannabis that they grew for your into the capsules?

A:        Yes they did.

Q:        And you mentioned a word that began with a T, did you mean tincture?

A:        Yeah, that’s what I’m trying, yeah.  We received a little container of tincture.

Q:        Was the tincture helpful to you?

A:        No, it’s mostly for my spouse has been using it.  I’ve used it a little bit, just some lately to try to sleep a little better.  I’m not sure if its really helping.

…

Q:        How frequently do you get medical cannabis supplied to you from your new designated grower?

A:        I don’t, that’s the only time we got some was we had a small amount of cap, cannabis oil and tincture.

Q:        So you, since January 2019 from your designated grower you have received how many cannabis capsules?

A:        I would say there was probably less than 100 between 75-100 capsules.

Q:        And how much cannabis tincture did you received?

A:        A small bottle, about 10 mg bottle type.

Q:        Have you received anything else from your designated grower?

A:        No.

Q:        When did you receive the cannabis capsules from your designated grower?

A:        Fairly recently.  Probably a couple months. Last couple months within the last couple months I’d say.

Q:        Do you anticipate receiving anything else from your designated grower?

A:        Well we’re… we hope so, but I think the problem is designated grower is struggling also with how to produce. It’s something new for them also.

Q:        Do they mail you the cannabis that they produce for you?

A:        I believe it was, I believe we, I believe it was delivered personally, I don’t think it was mailed.

Q:        Do you know where they produce it?

A:        Yeah.

Q:        Is it in Nova Scotia?

A:        Yes.

Q:        Okay.  Do you still have some of the capsules that they provided to you?

A:        No, I would have run out of those now.

Q:        When you ran out of those did you get a resupply from Mr. Enns?

A:        Yes.

Q:        Does your designated grower charge you any money?

A:        We’ve given a fair amount of money to our designated grower, yeah.

Q:        When you say a fair amount of money, how much money do you mean?

A:        Over $2000 so far.

Q:        Do you anticipate having to pay them more money?

A:        I would anticipate, yeah.

[68]         Jennifer Bower was diagnosed in 2015 with brain cancer, which caused seizures and loss of mobility on the right side of her body.  She could not work and relied on Income Assistance.  She had a bank account, and a debit card, and shopped online.  Her surgeon suggested medical cannabis and she asked her family doctor to write a prescription.  She used it to help her sleep, to remain calm, and to help with pain.  Ms. Bower did not think she could grow her own cannabis because of the size of her apartment.  She said she exclusively used capsules containing CBD/THC, which she received for free from Farm Assist.  She said she did not have an LP because she could not afford to buy cannabis that way, but gave no details as to whether she had ever discussed pricing with an LP.  Ms. Bower said she could probably get someone to grow cannabis for her, but had never explored the possibility of a designated person to grow cannabis or produce derivates for her. 

Crown Evidence

[69]         During the course of the Charter voir dire in the instant case, the Crown called Todd Cain, the Director General of the Licensing and Medical Access Directorate of the Cannabis Legalisation and Regulation Branch of Health Canada.  Mr. Cain was cross examined at length regarding all aspects of medical cannabis regulations.  He explained that under the ACMPRs, LPs are subject to inspection by trained inspectors.  Cannabis products produced by LPs are subject to testing for contaminants and THC levels before they are sold to the public.  

[70]         Mr. Cain explained that the ACMPRs were essentially created in a hurry by combining much of the MMAR and MMPR regimes, with a “few tweaks”:

Mr. Lloyd:      Could you speak to whether or not Health Canada seriously considered having medical cannabis made available through pharmacies?

Mr. Cain:         I can’t speak specifically, but again, I’ll just recall these regulations were developed with a six month clock coming out of the Allard court decision, so generally speaking to get a big regulatory package done within this period of time the approach taken was take the old MMAR regulations, take the MMPR regulations and other than a few little tweaks to those respective regimes, they were essentially put together in part one and part two of the ACMPR.  So there generally speaking was not a lot of consideration given to alternatives because there was no time, the clock was ticking, and as you’ll recall, the court appointed deadline, so this publication in the Canada Gazette was either right at, maybe even the day of, you know, when the Allard six month stay was expiring, so it was a race against time.

ACMPR Cases

[71]         While there has been a significant amount of litigation regarding the MMAR and MMPR regimes, there has been very little litigation concerning the ACMPRs.  Of note are Vancouver (City) v. Karuna Health Foundation, 2018 BCSC 2221, related, but not on appeal of the decision, and R. v. Ferkul, (unreported) July 26, 2019 (OCJ).

[72]         In Karuna Health Foundation, the court considered the constitutionality of Vancouver City By-Laws relating to medical cannabis dispensaries.  Hinkson C.J. set out the legislative background, including the recent coming into force of the Cannabis Act, S.C. 2018, c. 16, and resulting amendments to the CDSA, the Criminal Code, and other legislation.

[73]         The facts relevant to the s. 7 Charter arguments in Karuna Health Foundation included the following:

[136]     In support of their argument, the non-government respondents have submitted a number of affidavits from individuals who obtain cannabis from one of their dispensaries. The affiants attest to their need for cannabis to relieve medical symptoms, their experience in obtaining cannabis from storefront dispensaries, and, in some cases, difficulty in obtaining cannabis from the ACMPR. Overall, the affidavits suggest that the City enforcing its bylaws will curtail the affiant’s access to cannabis.

[74]         Chief Justice Hinkson reviewed the evolution of medical cannabis jurisprudence including the caselaw previously discussed in this decision, and stated:

[138]     While I concluded that it was neither appropriate nor necessary for me to consider the constitutionality of the Impugned Federal Legislation, the evolution of the jurisprudence under this legislation is instructive as to what access to medical cannabis demands in the s. 7 context. ...

[139]     The Supreme Court of Canada recently commented on the access to medical marijuana in R. v. Smith, 2015 SCC 34. In that case, the Court held that forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, infringes security of the person under s. 7. The Court held that those limits were contrary to the principles of fundamental justice because they were arbitrary and in contradiction to the objective of protecting health and safety.

[140]     In R. v. Boehme, 2016 BCSC 2014, Mr. Justice Baird cited the Ontario Court of Appeal in R. v. Mernagh, 2013 ONCA 67, in which the court held that there is no constitutional right for people to use cannabis for therapeutic reasons of their own conception. At para. 29, Baird J. summarized the authorities as follows:

29        The constitution recognises no free-standing right to use or supply marihuana. The government has the authority and is bound by international obligation to control the circulation of this substance except for medical or scientific purposes. It may do this by recourse to its criminal law power. The government must ensure, by whatever means it deems suitable, that there is an adequate exemption for authorised medical marihuana patients, but otherwise criminal prohibition is constitutionally acceptable. A legal framework that incorporates a reasonable medical exemption will accord with the principles of fundamental justice. One that does not will violate those same principles by depriving patients of medicine or forcing them to break the law to get it.

[Emphasis in original]

[141]     The non-government respondents also rely on the recent decision in Allard, where Mr. Justice Phelan considered the constitutionality of the Marihuana for Medical Purposes Regulation, SOR/2013-119 repealed SOR/2016-230, s. 281. That regime authorized the possession of dried cannabis for medical purposes, the regulated production of dried cannabis, and the sale and distribution of dried cannabis by licensed producers and authorised individuals. In Allard, Phelan J. found an infringement of s. 7 for those holding authorizations to possess cannabis for medical purposes because they faced the prospect of imprisonment if they purchased their marihuana from outside the only permitted source for any reason: at para. 188. Further, he found that it affected their right to make decisions of fundamental personal importance because if they could not access a licensed producer for any reason, their “security of the person” would be engaged as “there would be no access to their medication resulting in physical or psychological suffering”: at para. 203

[142]     In August 2016, the federal government introduced the ACMPR. The ACMPR regime provided access to cannabis for medical purposes by enabling individuals who have the support of an authorized health care practitioner to access cannabis in three ways: (1) by purchasing cannabis from a licensed producer; (2) by registering with Health Canada to produce cannabis for the patient’s own personal use; or (3) by registering with Health Canada and designating another person to produce cannabis on the patient’s behalf.

[75]         In dismissing the s. 7 argument in Karuna Health Foundation, Hinkson C.J. said:

[143]     The ACMPR regime did not permit medical cannabis to be sold by a storefront operation. Like the previous medical marijuana regimes enacted by the federal government, the ACMPR allowed individuals to possess certain forms of cannabis, it regulated commercial production, and allowed delivery from licensed producers.

[144]     Patients were permitted to purchase cannabis for medical purposes from one or more licensed producers while simultaneously growing their own cannabis or designating a producer, subject to the personal possession and storage limits. Patients who required cannabis for medical purposes outside the parameters of the ACMPR Regime could apply to the Minister under section 56 of the CDSA for an authorised discretionary exemption to recognize their specific circumstances. Patients and designated producers were permitted to convert their cannabis into cannabis derivatives, provided they did not use any organic compound that is highly flammable, explosive, or toxic.

[145]     Distilled down, the case law suggests that while legislation must allow sufficient access to medical marihuana, the courts have also repeatedly emphasized that such access is subject to government limits and government regulation: see e.g. Malmo-Levine; Hitzig; Sfetkopolous; R. v. Voss, 2013 ABCA 38 at para. 7.

[146]     Furthermore, as the non-government respondents repeatedly submit (and these cases make clear), is that access to and regulation of cannabis is in the jurisdiction of the federal government. While I accept that the City’s bylaws could violate s. 7 by unreasonably restricting access to medical cannabis, I cannot conclude it has done so in this case. The non-government respondents have not demonstrated that the Impugned Bylaws engage s. 7.

[147]     While the Impugned Bylaws limit the number and location of cannabis dispensaries, there is no indication that they cause serious psychological or physical suffering. Cannabis is accessible through other locations and other means. Nor is there evidence that individuals’ liberty is engaged. There is no risk of criminal prosecution or incarceration.

[148]     Access to cannabis under s. 7 does not mean access on every corner of a city. It does not mean access to a particular store or particular strain. Section 7 demands that individuals be given reasonable access to medical cannabis not unrestricted access. Individuals may be inconvenienced, but such inconvenience does not engage s. 7.

[76]         In Ferkul, the evidence before the court was similar to that in the instant case.  Judge Rondinelli explained why the matter was still relevant, even though the Cannabis Act had come into force subsequent to the proceedings:

[2]  When the Applicants were charged with these offences and this Application commenced, cannabis was only legally available through the ACMPR.  Prior to hearing of this Application, however, the Cannabis Act, S.C. 2018, c. 16 came into force on October 17, 2018.  The Cannabis Act creates a legal and regulatory framework for the production, distribution, possession and sale of cannabis.  The Cannabis Regulations, SOR/2018-144 were also brought into force on the same date as the Cannabis Act.  These new regulations have replaced the ACMPR.

[3]  Since October 17, 2018, authorized patients are still able to access medical cannabis by buying directly from a federally licensed seller; registering with Health Canada to produce a limited amount of cannabis for their own medical purposes; or designating someone to produce it for them.  In Ontario, they are also able to buy cannabis at authorized retail outlets or through authorized online sales platforms.  Possession, production, distribution and sale outside the legal system remains subject to criminal penalties.

[4]  Despite this change of legislative landscape, the Application is not rendered moot.  Section 43 of the Interpretation Act, R.S.C. 1985, c-I-21 authorizes the prosecution and punishment for offences committed under an enactment so repealed.  Consequently, the Applicants are entitled to advance a defence to the charges that includes a Charter challenge to the now-repealed legislation.

[77]         In summarizing the factual allegations made by the applicants in support of their s. 7 argument, Rondinelli J. stated:

[13]  The Applicants submit that the ACMPR creates eight main barriers to medical cannabis access that are not in accordance with the principles of fundamental justice.  These barriers are:

1)  Delivery delays and a lack of on-demand timely access;

2)  Ordering and delivery issues by persons who have limited or no access to the Internet or no banking facilities or no permanent residences to facilitate delivery of their medicine;

3)  High costs associated with minimum purchase requirements and shipping from licensed producers;

4)  A lack of face-to-face contact with sales and service personnel for patients who need to ask questions about and receive information about their medicine;

5)  An inability of patients to see and smell their medicine when purchasing – which has a negative impact on their ability to choose their medicine;

6)  Delays in obtaining licenses to possess, access or grow their medicine;

7)  Limited availability of strains preferred by and needed by patients to treat their illness; and

8)  Limits on cannabis derivatives that make access to cannabis derivatives illusory at best.

[14]  The Applicants argue that the CDSA prohibitions and the ACMPR’s mail order system stand in the way of a medical cannabis patient making autonomous medical decisions.  A patient who needs pain or symptom relief should be entitled to immediate relief offered through an on-demand access channel.

[78]         In finding that the barriers to access identified by the applicant did not infringe s. 7, Rondinelli J. said:

[16]  When it comes to health care, Chief Justice McLachlin and Justice Major wrote in Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para 104, “The Charter does not confer a freestanding constitutional right to health care.  However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.”  But just because the scheme must comply with the Charter, it does not mean that the government “must do everything possible to save the lives of its citizens in every circumstance, including funding all potentially life-saving treatments”:  Flora v. Ontario Health Insurance Plan, 2007 CanLII 339 (ON SCDC) at para. 227.

[17]  In my view, the Applicants are seeking a system that provides perfect access (which is not constitutionally required), rather than one that provides reasonable access (which is constitutionally protected).

[18]  The ACMPR regime provides multiple avenues to access cannabis for medical purposes.  Indeed, it provides medical cannabis patients with more options than any previous regime.  Since Smith and Allard v. Canada, 2016 FC 236 were decided, the ACMPR now permits medical cannabis patients to both possess and produce cannabis derivatives and to purchase and possess cannabis oil.  It also allows patients to designate others to produce derivatives for those patients with their cannabis.  Also, unlike in Allard where patients could only purchase cannabis for medical purposes from licensed producers, the ACMPR permits patients to grow it for themselves or to designate a third party to grow it for them.  The ACMPR permits all authorized patients nationwide to access cannabis for medical purposes.  Access is not dependent on being located in or near a city centre or having access to transportation.  Storefront access would not necessarily improve the plight of the homeless or those living in precarious housing since it would be impossible to provide enough storefronts in both urban and remote communities to provide practical access to this marginalized group.

[79]         Judge Rondinelli concluded:

[20]  The ACMPR does not prohibit any medical cannabis patient from taking advantage of the medical service provided by the regulations.  There is no doubt that the ACMPR’s mail order system provides some inherent delay in obtaining medical cannabis, but the evidence before me falls short in establishing that the mail order delay could lead to serious long lasting harm or life-threatening conditions that were found to exist in Chaoulli, Morgentaler, and Rodriguez.  Rather, the evidence in this Application demonstrates that the medical cannabis patients wish immediate access to help manage pain levels and to alleviate symptoms...

[21]  The medical cannabis patients’ evidence presented at this Application share many similar concerns over the expense, delay, and frustrations in dealing with the mandated mail-order system the ACMPR put in place.  For example, the affidavit of Kenneth Webber states:

As a low-income individual, my only option is to purchase from a local dispensary or compassion club, or use a pre-paid VISA card to make purchases from Aurora, however that is more expensive and time consuming:  Affidavit of Kenneth Webber, Applicants’ Application Record, Volume III, Tab 11, para. 27.

[22]  The affidavit of Sylvie Duggan states:

The rules for payment with Tweed made it very difficult for me to make a single order because of the fact that I do not have a credit card.  I only have a debit card and I cannot use a debit card to purchase from Tweed because my bank is TD Bank and they will not do business with Tweed…In order to purchase my medical cannabis I have to go to my bank and get a money order, then I have to get the money order faxed to Tweed, then I have to phone Tweed to make sure they received the fax money order, and then it takes up to three days after that for them to ship the cannabis to me…I have mobility issues due to my illness and having to go to the bank, then the employment office, and then the post office can exacerbate my symptoms of COPD, lupus, and fibromyalgia…I prefer to have person-to-person contact when it comes to my medical needs and concerns:  Affidavit of Sylvie Duggan, Applicants’ Application Record, Volume III, Tab 12, paras. 7, 8, 12, and 17.

[23]  In my view, the access to medical cannabis provided by the ACMPR achieves the object of the ACMPR and therefore, individuals’ rights are not limited arbitrarily and the negative effects of the ACMPR regime (delay, cost, and frustrations) are not completely out of sync with the object of the law:  Carter, at para. 89.

[80]         As such, Rondinelli J. found no violation of s. 7 arising from the ACMPRs.

Section 7 Analysis

[81]         As noted in Carter v. Canada (Attorney General), 2015 SCC 5, a s. 7 Charter challenge involves a two-step analysis.  The court stated:

[54]  Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[55]  In order to demonstrate a violation of s. 7, the claimants must first show that the law interferes with, or deprives them of, their life, liberty or security of the person.  Once they have established that s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice.

[82]         In Carter the court discussed the right to medical self-determination:

[67]  The law has long protected patient autonomy in medical decision-making.  In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this point), endorsed the “tenacious relevance in our legal system of the principle that competent individuals are — and should be — free to make decisions about their bodily integrity” (para. 39).  This right to “decide one’s own fate” entitles adults to direct the course of their own medical care (para. 40):  it is this principle that underlies the concept of “informed consent” and is protected by s. 7’s guarantee of liberty and security of the person (para. 100; see also R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.)).  As noted in Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), the right of medical self-determination is not vitiated by the fact that serious risks or consequences, including death, may flow from the patient’s decision.  It is this same principle that is at work in the cases dealing with the right to refuse consent to medical treatment, or to demand that treatment be withdrawn or discontinued:  …

[83]         Regarding medical self-determination in medical cannabis cases, Phelan J. noted in Allard that the regulation scheme for access to medical marihuana must address the s. 7 liberty interest, and went on to consider the caselaw:

[179]      In Parker, the Court considered the liberty interest in two ways: first, the threat of criminal prosecution and possible imprisonment; and second, the right to make a decision of fundamental importance, including the choice of medication to alleviate the effects of an illness with life-threatening consequences.

[180]      Expanding on Parker, the Court in Hitzig held that a liberty interest was at risk in the context of this medical exemption due to the threat of criminal prosecution and imprisonment arising from the need to possess and use. The risk manifested itself in several ways, including barriers to access and eligibility hurdles, as well as the consequences of straying outside the conditions set for possession for those who had an ATP. In other words, the scheme itself stood between individuals and their right to make fundamentally important personal decisions, unimpeded by state action interfering with the right to liberty.

91        As R. v. Parker, supra points out, the liberty interest of these individuals can be considered in two ways. First, viewed more narrowly, their right to liberty is at risk in the context of this medical exemption due to the threat of criminal prosecution and imprisonment arising from their need to possess and use marihuana for medial purposes. This risk manifests itself in several ways. The risk clearly exists for those who do not have an ATP because they cannot clear the eligibility hurdles set up by the MMAR. It also exists for those with medical need who do not have an ATP for any other reason (although in each case that other reason may be a factor in assessing compliance with the principles of fundamental justice). Further, even for those with an ATP, this aspect of the liberty interest is at risk should they stray outside the conditions set for their possession by the MMAR. For example, the MMAR authorize an ATP holder to possess marihuana, but only in a strictly limited quantity, beyond which there is no exemption.

(Hitzig, para 91)

[84]         The court in Allard expanded on the liberty and security of the person aspects of the analysis:

[195]  Third and most convincingly, the individuals are restricted under the MMPR to purchasing from a LP. The decision to cultivate cannabis for medical purposes or purchase cannabis from the black market, such as a store front dispensary, could result in criminal prosecution. Any offence that includes incarceration in the range of possible sanctions engages liberty (Re BC Motor Vehicle Act, [1985] 2 SCR 486 at p 515). Both parties are in agreement that, at the least, the liberty interest is engaged due to the threat of criminal prosecution and incarceration if the Plaintiffs or approved patients decide to access their marihuana outside the regulatory regime.

The maximum penalty for producing cannabis is 14 years in prison.

[196]  The above analysis of the MMPR’s engagement of the liberty interest is consistent with the Supreme Court’s recent decision in Smith – although that case dealt with the MMAR and more narrowly focused on the prohibitions on the means of consumption. The Court held that:

a)  the prohibition on possession of cannabis derivatives infringes Smith’s liberty interest by exposing him to the threat of imprisonment on conviction under s 4(1) or 5(2) of the CDSA; and

b)  the prohibition limits liberty by foreclosing reasonable medical choices through the threat of criminal prosecution.

The Plaintiffs have made their case that their liberty interests are engaged by the MMPR regime.

(2)  Security Interest

(a)  Law

[197]      The security of the person will only be violated where the state interferes in profoundly intimate and personal choices (Blencoe at paras 83 and 86). This interest is comprised of both physical integrity and psychological integrity.

[198]      On physical integrity, the Supreme Court’s statement in Morgentaler is often referenced - the security of the person will be engaged by deprivation by means of a criminal sanction of access to medication reasonably required for the treatment of a medical condition that threatens life or health. In Parker, the Court specifically stated that the choice of medication to alleviate the effects of an illness with life-threatening consequences is a decision of fundamental personal importance.

[199]      The security of the person interest is engaged, even independently of criminal sanction, by the establishment of a regulatory regime which restricts access to marihuana. This was true of the MMAR and is true of the MMPR. The Ontario Court of Appeal in Hitzig articulated this principle as follows:

95        In this case, the MMAR, with their strict conditions for eligibility and their restrictive provisions relating to a source of supply, clearly present an impediment to access to marihuana by those who need it for their serious medical conditions. By putting these regulatory constraints on that access, the MMAR can be said to implicate the right to security of the person even without considering the criminal sanctions which support the regulatory structure. Those sanctions apply not only to those who need to take marihuana but do not have an ATP or who cannot comply with its conditions. They also apply to anyone who would supply marihuana to them unless that person has met the limiting terms required to obtain a DPL. As seen in Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519, a criminal sanction applied to another who would assist an individual in a fundamental choice affecting his or her personal autonomy can constitute an interference with that individual's security of the person. Thus, we conclude that the MMAR implicate the right of security of the person of those with the medical need to take marihuana.

…

104      Even apart from these criminal sanctions for non-compliance, the MMAR constitute significant state interference with the human dignity of those who need marihuana for medical purposes. To take the medication they require they must apply for an ATP, comply with the detailed requirements of that process, and then attempt to acquire their medication in the very limited ways contemplated by the MMAR. These constraints are imposed by the state as part of the justice system's control of access to marihuana. As such, they are state actions sufficient to constitute a deprivation of the security of the person of those who must take marihuana for medical purposes. They are state actions within the administration of justice that stand between those in medical need and the marihuana they require.

[Court underlining in original]

[85]         Mr. Enns argues that both the liberty and security of the person interests of medically approved patients are engaged by the ACMPR on the following grounds:

a.         Failing to provide for retail storefront sales of medical cannabis at designated medical cannabis stores, thereby restricting patients’ ability to purchase cannabis;

b.         Prohibiting the purchase or sale of medical cannabis derivatives other than low potency oil, thereby restricting patient’s ability to legally purchase from any legal source the form of cannabis medicine they require.

First Stage

[86]         The ACMPRs provide medical cannabis users the ability to obtain medical cannabis from an LP, cultivating their own, or having a designated person supply them.  Section 1(1) of the ACMPR defines “designated person” as “designated person means the individual who is authorized by a registration referred to in section 178 to produce cannabis for the medical purposes of the registered person.”  Section 4 of the ACMPRs describes the permissible alteration of substances:

Altering substance

4 (1) An individual who, in accordance with these Regulations or subsection 65(2.1) of the Narcotic Control Regulations, obtains fresh or dried marihuana or cannabis oil for their own medical purposes or for those of another individual for whom they are responsible, and an individual who, in accordance with these Regulations, produces marihuana for their own medical purposes or those of another person for whom they are the designated person, may alter the chemical or physical properties of

(a) the fresh or dried marihuana or cannabis oil;

(b) a product resulting from an alteration of a substance referred to in paragraph (a); or

(c) a product that is derived from a product referred to in paragraph (b).

No organic solvents

(2) The individual must not use organic solvents when doing those alterations. For the purposes of this subsection, organic solvent means any organic compound that is highly flammable, explosive or toxic, including petroleum naphtha and compressed liquid hydrocarbons such as butane, isobutane, propane and propylene.

Providing substance

(3) An individual who is responsible for another individual may provide a product referred to in subsection (1) only to that individual.

Possession

(4) An individual may possess a product referred to in subsection (1) if they produced it in accordance with this section or obtained it in accordance with these Regulations.

[87]         The Regulatory Impact Analysis Statement for the ACMPRs provide some guidance as to the intent of the drafters:

It is important to note that in the ACMPR, “marihuana” means the substance referred to as “Cannabis (marihuana)” in subitem 1(2) of Schedule II to the CDSA, which includes marihuana plants and dried or fresh marihuana, whereas “cannabis” means a substance set out in item 1 of Schedule II to the CDSA that is inclusive of marihuana as well as cannabis preparations and derivatives. (p. 3386)

…

Authorized activities

As a registered person, an individual is authorized to possess and alter cannabis for his/her own medical purposes.  He/she must comply with the requirements of the ACMPR and with the registration, including with the possession limits established based on the equivalent of the lesser of the 30-day supply (derived from the daily quantity supported by the health care practitioner) or 150 g, as expressed in grams of dried marihuana.  A registered person whose registration specifies a designated person may also, if an adult, participate in the activities that the designated person is authorized to conduct under the registration.

A registered person who produces for his/her own medical use may produce, transport, and store cannabis in accordance with the requirements of Part 2 of the ACMPR and with the registration.

A designated producer may produce cannabis for the medical purposes of the registered person, store, transport, ship, provide, or deliver cannabis in accordance with the requirements of Part 2 of the ACMPR and with the registration.  The shipping, provision, or delivery may only be to the registered person (i.e. the medically authorized person) or the person responsible for the registered person. (pp. 3400-3401)

[88]         In his submissions, Mr. Enns initially described the terms of the ACMPR as more restrictive then they in fact are:

30.  In addition, the ACMPR does not permit LPs or other non-patient producers to make and/or sell cannabis derivative medicines other than low concentrate edible (non-smokable/vaporizable) cannabis oil in a vegetable oil substrate.  The only manner for ACMPR patients to legally acquire high concentrate oils or extracts, or other forms of cannabis derivatives (e.g., edibles, topical creams), is to make them at their home using cannabis purchased from LPs or that they grow themselves or have had grown for them.

31.  If for any reason a patient cannot manufacture the cannabis derivate products effective at treating their ailments, the only way they can access such products is to purchase them from an illegal source, either a dispensary or from a drug dealer on the street, putting patients at risk of criminal prosecution, and therefore forcing patients to choose between their liberty and their health.  Patients purchasing on the street are also exposed to other dangers, including unscrupulous dealers who may also sell opiates such as heroin or fentanyl.

[89]         Subsequent to the hearing, on October 2, 2019, I wrote to counsel and invited further submissions due to the fact that it appeared Mr. Enns’ argument in this regard did not accord factually with s. 4 of the ACMPR.  Mr. Enns responded to my inquiry on October 7, 2019, and agreed that his original submission was based on an erroneous premise:

2. ... Upon further review of the Court's letter and the applicable law as well as a Health Canada policy document regarding designated producers available on the federal government website … it is submitted that the previous submission, as a blanket statement regarding all ACMPR patients in Canada, was not correct to the extent that s. 4 of the ACMPR authorizes designated persons to prepare or manufacture all forms of cannabis derivatives for the patients who have designated them under the patient's ACMPR production licence The three categories of ACMPR patients covered by this supplemental submission, which the Defendant submits includes the main categories of ACMPR patients (other than those being provided cannabis at a hospital or directly by medical professionals), are: 1) patients who have a medical authorization allowing them to purchase medical cannabis from LPs; 2) patients who have a personal production licence; and 3) patients who have a production licence that names a designated person to produce cannabis for the patient. …

[90]         The applicant provided an amended version of the relevant paragraphs of the original submission.  As such, it is clear that medical cannabis users can produce any derivative they wish as long as they follow the applicable safety guidelines.  Some medical cannabis users are too ill to produce their own cannabis derivatives.  However, as now conceded by Mr. Enns, they can have their designated person grow their cannabis or make the derivative of choice. 

[91]         Some medical cannabis users do not have the technical means to order from an LP online.  If that is the situation, they can have someone assist them with their online order.  They can also grow their own or have a designated person grow the cannabis. 

[92]         Some medical cannabis users cannot afford to order from an LP and cannot grow their own cannabis for various reasons.  They are permitted to use a designated person.  A designated person can provide cannabis and cannabis derivatives, including (but not limited to) CBD/THC oil and capsules, wax, etc., as long as the regulatory guidelines for safety are followed.

[93]         I do not agree that the s. 7 Charter interests of medical cannabis users are infringed because medical cannabis dispensaries are not authorized.  As noted in Karuna Health Foundation:

[148]     Access to cannabis under s. 7 does not mean access on every corner of a city. It does not mean access to a particular store or particular strain. Section 7 demands that individuals be given reasonable access to medical cannabis not unrestricted access. Individuals may be inconvenienced, but such inconvenience does not engage s. 7.

[94]         Nor do I agree that regulating the potency of medical cannabis derivatives available for sale through LPs is contrary to s. 7 when there is no restriction on the potency of derivatives medical cannabis users can produce for themselves or have produced for them by their designated person. This leaves two options for medical cannabis users who want higher potency cannabis derivatives.

[95]         Some medical cannabis patients cannot afford cannabis at all.  However, there is no constitutional right to free, unregulated, medical cannabis.  There might be financial impediments to certain users, but the constitution does not guarantee unlimited, unrestricted and unregulated access at all times for all possible cannabis strains and all medical cannabis derivatives. 

[96]         The evidence did establish that there could be situations under the ACMPRs where access to medical cannabis might be slightly delayed, for instance, if an LP is slow delivering or if a crop being grown at home or by a designated person is not ready to harvest and process as scheduled.  Neither the expert evidence, nor the evidence of the medical cannabis users, indicated that such a delay could lead to serious long lasting harm or life-threatening conditions.  However, I am satisfied that delay in access, on its own, is sufficient to infringe s. 7.  I adopt the following comments from Ferkul:

[19]  Delay in accessing health care has been found to infringe s. 7 of the Charter in certain landmark Supreme Court of Canada cases.  As the Court of Appeal explains in Flora v. Ontario Health Insurance Plan 2008 ONCA 538 at paras. 98-100:

[98] In Chaoulli, the pivotal consideration was the fact that the impugned prohibition on private health insurance "conspired" with excessive costs in Quebec's public health care system to force Quebeckers onto the wait lists that pervaded the public system. It was this connection between the statutory prohibition on private health insurance and the delays in the public system that anchored the Chaoulli holding that the wait lists constituted a deprivation of rights protected under s. 7. In other words, the statutory prohibition in issue was directly linked to the harm suffered by Quebeckers who were compelled by the prohibition to rely on the public health care system and to endure the consequences of significant wait lists.

[99] A similar link between state action and delays in accessing health care grounds the Supreme Court of Canada's decision in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1. In that case, the Supreme Court concluded that the s. 7 right to security of the person for women was jeopardized by the mandatory therapeutic abortion committee system established by the Criminal Code, R.S.C. 1985, c. C-46, which forced women who sought abortions to suffer significant delays in treatment with attendant physical risk and psychological suffering. Morgentaler, at p. 59, per Dickson C.J.C. and, at pp. 105-106, per Beetz J., Estey J. concurring.

[100] To similar effect is the Supreme Court's decision in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J. No. 94, 107 D.L.R. (4th) 342, which holds that governmental interference with a citizen's bodily integrity -- such as a criminal law prohibition on assisted suicide -- constitutes a deprivation of security of the person under s. 7.

[97]         Previous cases have indicated that any restriction on access to medical cannabis engages security of the person.  I am satisfied on that basis that the delay that may arise from the regulatory scheme infringes s. 7.  I must now consider whether such infringement accords with the principles of fundamental justice.

Second Stage

[98]         In Carter, the court summarized the basic aspects of the principles of fundamental justice in the following terms:

[71]                          Section 7 does not promise that the state will never interfere with a person’s life, liberty or security of the person — laws do this all the time — but rather that the state will not do so in a way that violates the principles of fundamental justice.

[72]                          Section 7 does not catalogue the principles of fundamental justice to which it refers.  Over the course of 32 years of Charter adjudication, this Court has worked to define the minimum constitutional requirements that a law that trenches on life, liberty or security of the person must meet ...  While the Court has recognized a number of principles of fundamental justice, three have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.

[99]         Therefore, the analysis must include consideration of arbitrariness, overbreadth, and gross disproportionality.  As Mr. Enns frames the question: are the ACMPR restrictions rationally connected to the achievement of valid legislative objectives or do they result in disproportionate effects?  The court must first identify the legislative objective of the impugned regulation.  I agree with Mr. Enns that the legislative objective of the ACMPRs is essentially the same as that of the MMARs  and MMPRs, as described in Smith, Hitzig and Allard, that is: the health and safety of Canadians and improving access to medical cannabis for those who need it.

[100]    Mr. Enns submits that the recent legislative change to recreational cannabis access is relevant to this analysis.  In particular, he argues the coming into force of the Cannabis Act is of significance:

38.  The Supreme Court has commented on the importance of changes in the legislative context to considering the constitutionality of legislation in question:  ...  The recent changes to the legislative context are directly relevant to the analysis of the legislative objectives of the ACMPR, as well as whether the restrictions against storefront access or purchasing derivative products are arbitrary, overbroad, or grossly disproportionate.

39.  In this case the change in the legislative context arises from the legalization of cannabis for recreational purposes under the Cannabis Act.  It is submitted that, for the purpose of this case, the change in the legislative context has significant impact on the analysis of the legislative objectives, since any Canadian of legal age can now purchase cannabis for recreational use from retail cannabis stores.  The change in context renders the prohibition against storefront access to medical cannabis products for medically authorized patients, as a means for protecting public health and safety or to improve access to medical cannabis, entirely irrational.

[101]    As noted by Mr. Enns, I must consider whether the restrictions on access to cannabis under the ACMPRs actually cause harm to health and safety when they are supposed to prevent harm to health and safety.  If so, they are arbitrary (Smith; Chaoulli v. Quebec, 2005 SCC 35; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44).

[102]    The ACMPRs do not cause harm to the health and safety to medical cannabis users.  They prevent the sale of untested and unregulated cannabis products to medical cannabis users, but allow the sale of tested cannabis products by LPs, and also allow medical users to grow their own cannabis and make their own derivatives, or have a designated person grow cannabis or make derivatives for them.  Cannabis and derivatives can now be sold for recreational use at authorized retail outlets or through authorized online sales platforms, subject to regulatory inspection and testing.  Possession, production, distribution and sale outside the legal system remains subject to criminal penalties.  Selling unregulated, uninspected, or untested cannabis is still illegal.  Such restrictions are not arbitrary.

[103]    If the impugned restrictions are not arbitrary, the next step in the fundamental justice analysis is to determine whether the law is overly broad.  As the court stated in Carter:

[85]  The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object ...  Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population.  A law that is drawn broadly to target conduct that bears no relation to its purpose “in order to make enforcement more practical” may therefore be overbroad (see Bedford, at para. 113).  The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature.  The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammelled.

[104]    Mr. Enns argues:

44.  The criminalization of conduct that falls outside the ACMPR is a grossly disproportionate response to a patient accessing cannabis illegally that they cannot reasonably obtain legally.  Similar to the situation in PHS, where denying heroin addicts the use of a safe injection site, which benefited public health and safety, was found to cause grossly disproportionate effects on persons suffering from addiction, and outweighed the general public interest in maintaining prohibition of opiate drugs.

[105]    The ACMPRs allow medical cannabis users to access cannabis in multiple ways.  While it might, at times, be easier for patients to access cannabis through a dispensary, the restriction to purchasing properly inspected and tested cannabis from LPs is not overbroad.  The ACMPRs allow medical cannabis users to produce their own cannabis or obtain it from a designated person.  These options give the user direct knowledge of the methods used for producing the cannabis, subject to the regulatory restrictions, which protect the health and safety of medical cannabis users.  Therefore, the ACMPRs allow multiple methods of access for medical cannabis users.  They do not allow completely unrestricted access to unregulated, uninspected, or untested cannabis through commercial operations, such as Farm Assist.

[106]    Some of the medical cannabis users who testified on this application were able to order from LPs, but did not always find the service, cost, product, or delivery time satisfactory.  Some of the witnesses had never tried to use an LP or, if they were dissatisfied the LP they were using, did not explore the possibility of an alternate LP.  Some witnesses complained about the price of cannabis purchased from an LP, but others testified that with compassionate pricing there was a nominal difference between the cost of cannabis from an LP and the cost from Farm Assist.  However, Farm Assist provided unregulated, untested, and uninspected CBD/THC capsules for free to many medical cannabis users.

[107]    Some witnesses said they could not afford to start their own cannabis garden, or did not have the space for one.  Those medical cannabis users who could not grow or produce their own cannabis or derivatives could get a designated person to do so for them, but either had not tried in any significant way or had not followed up with their designated person.

[108]    Mr. Cain testified that licencing medical cannabis users or designated persons under the ACMPRs was initially delayed.  However, none of the witnesses testified that they had relied on Farm Assist directly because of this delay. 

[109]    On the questions of arbitrariness and overbreadth, Mr. Enns argues (as noted above) that the legalization of cannabis for recreational purposes is relevant.  In particular, he says:

49.  The question then becomes whether the restriction against storefront access is arbitrary or overbroad the health and safety and improving access to cannabis legislative purposes of the ACMPR.  The provision for recreational cannabis stores under the Cannabis Act provides a definitive answer.  If storefront access to cannabis negatively impacted public health and safety, then recreational stores, where customers purchase cannabis for the purpose of personal enjoyment, would not now be legal.  Instead, not allowing for medical dispensaries serves to harm public health by restricting access for patients who use cannabis to treat pain, nausea, seizures and many other conditions that cause them much suffering.   Furthermore, the federal government has provided no justification to support the prohibition of medical cannabis dispensaries.  That not allowing for storefront access decreases access to cannabis is both self-evident and supported by the evidence, achieving the opposite of that legislative objective.  The restriction against storefront access for medical cannabis is therefore irrational considering its legislative objectives, and therefore arbitrary, as well as overbroad.  It is also grossly disproportionate to subject patients who buy cannabis at dispensaries to criminal convictions and imprisonment under the CDSA.

[110]    While Mr. Enns argued that the Cannabis Act should be considered by the court, no evidence was called regarding the mechanics of how cannabis currently being sold for recreational use is inspected or tested now that the Cannabis Act has come into force.  During final submissions Mr. Enns made reference to the Regulatory Impact Analysis Statement for the Cannabis Act, but called no evidence on this point.  Since no evidence was put before the court regarding the type of inspection or testing regarding such cannabis, I cannot compare measures taken under the ACMPRs with those under the Cannabis Act.  I can, however, make a comparison between the conditions under which Mr. Enns’ dispensary operates and those mandated by the ACMPRs.  The evidence established that medical cannabis and derivatives sold under the ACMPRs were subjected to inspection and testing, whereas those distributed by Farm Assist were not inspected or tested.  While the new recreational cannabis laws are relevant background information, the material before me does not allow any direct comparisons with the medical cannabis regime.

[111]    Mr. Enns argues that ACMPR restrictions on access to cannabis derivative products is a further basis to find that the principles of fundamental justice are violated:

50.  On the issue of the prohibition of high concentrate extracts, edibles, and topical creams, the starting point is to consider the analysis in Smith, where the Court held that patients have a constitutional right to possess any form of cannabis for medical purposes.  While the Court did not specifically address the particular issue of patients’ right to purchase any form of cannabis, the Court’s reasoning directly applies.  If a patient cannot make their own derivative products, then they cannot legally acquire said products and are subject to criminal sanction if they purchase those products from an illegal source.  It is submitted the reasoning in Smith applies equally to the restriction on the sale of derivatives as it does to possession of them, and that the same conclusions with respect to arbitrariness, overbreadth, and gross disproportionality also apply, such that the combined effect of the criminal charges under the CDSA and the insufficient ACMPR exemption results in breaches of s. 7.

[112]    Under the ACMPRs, medical cannabis users were not limited to purchasing dried cannabis and to smoking medical cannabis.  LPs offered a variety of derivatives for sale, including cannabis oil.  If a medical cannabis user did not want to purchase from an LP, or if the LP did not offer a derivative in the form or potency that a medical cannabis user wanted, they could produce their own or have a designated person do so.

[113]    Mr. Enns goes on to cite caselaw under the MMARs in support of the argument that the ACMPR regime creates a “blanket ban” that is arbitrary or overbroad:

51.  In addition, the federal government’s rationale that a blanket ban is required to protect the public from access to these products, if not arbitrary, is overbroad.  It does not require a criminal prohibition that prevents everyone, including patients with medical need, from legal access to their medicine.  In this regard the Ontario Court of Appeal case of Hitzig, a case where the MMAR personal production licence scheme was found as fact to prevent many patients from legal access to cannabis due to inability to grow their own or have someone grow for them, made the following comments that continue to apply on this issue of prohibited derivatives:

[121]      In this case, however, the Government’s attempt to rely on the assertion that the MMAR serve a substantial and compelling collective interest justifying the absence of any legal source of medical marihuana fails at its most basic level.  The substantial and compelling interest advanced by the Government is the need to preserve and promote public health and safety.  We accept that this can be a substantial and compelling collective interest for the purposes of s. 7 of the Charter.  However, a scheme which depends on the criminal black market and which forces individuals to go to the black market to obtain necessary medical treatment cannot possibly further public health and safety.  In fact, it has the opposite effect.  By failing to provide for a lawful source of medical marihuana, the MMAR not only compromise individual rights, but undermine the very collective interests which the Government contends are promoted by these regulations.   Lederman J. made this point at paras. 161, 163:

That the Government relies on the criminal underworld in this manner is rather surprising when it has declared that the goals of the MMAR and its interlocking regulatory scheme include controlling the illicit drug trade and upholding Canada’s international narcotics control obligations. …

As a result, production licences offer the applicants an illusory remedy which can only be accessed through reliance on black market distributors.  Despite ostensibly being concerned with avoiding diversion and illegal use of marihuana, to say nothing of conforming with international drug conventions, the MMAR force medical marihuana users into the arms of suppliers whom the state has deemed criminal drug dealers.  This position is untenable, and is certainly not consistent with the principles of fundamental justice. 

[Emphasis in original]

[114]    Unlike the situation under the MMARs, under the ACMPRs a medical cannabis user did not have to obtain the organic material (seeds, etc.) required to start a cannabis garden from the black market, nor was a medical cannabis user limited to growing their own or having a designated person that could only grow for a single customer.  Under the ACMPRs, a medical cannabis user could buy from an LP and could legally obtain organic material needed to start their own cannabis garden, and a designated person could produce for more than one user. 

[115]    The medical cannabis users who testified on this application went to Farm Assist because they found the people working there friendly and knowledgeable, and because it was more convenient and less expensive than the regulated LPs.  Farm Assist sold a variety of cannabis strains and derivatives in various strengths, and sometimes gave medical cannabis users products, in particular, CBD/THC capsules, free of charge.  Mr. Enns was dispensing cannabis and derivatives outside of the parameters of the ACMPR.  Farm Assist was selling or giving away untested, uninspected, and unregulated cannabis and derivatives to users. 

[116]    Mr. Enns further submits that limitations on production of high concentrate derivatives is unjustifiable.  He submits:

52.  Furthermore, the federal government’s contention that it is too dangerous for LPs to make the high concentrate extracts, when the government can easily regulate the safe manufacture of these substances, cannot reasonably be held to serve public health and safety, particularly when patients are themselves subjected to these dangers by being required to make the products themselves in their homes.  To the contrary, if the manufacture of high concentrate extracts is so dangerous, then requiring patients to make their own subjects them directly to a danger that could be avoided through proper regulation of producers.  This justification amounts to an excuse for failing to take necessary regulatory action to protect patients’ right to access these products and protect patient safety, which cannot justify a law as rationally connected to furthering public health and safety under the arbitrariness and overbreadth analyses.

53.  Finally, subjecting patients who cannot make their own derivative medical cannabis products necessary to treat their chronic pain or other ailments to criminal sanction is clearly grossly disproportionate to its effects and thus a breach of s. 7, and clearly outweighs any limited public safety purpose that could be dealt with through other regulatory means under a section 1 analysis.

[117]    Several of the medical cannabis users testified that the derivatives they purchased from LPs were not of a strong enough THC concentration to be effective.  However, no compelling evidence was elicited through the experts to establish that cannabis derivatives with a higher concentration of THC have a proven medical necessity.  In any event, medical cannabis users can produce their own derivatives at the THC level of their choice, or have a designated person make it for them, as long as the appropriate safety regulations are followed.  There is nothing grossly disproportionate about this restriction.

[118]    Accordingly, I am not satisfied that the limitations and restrictions imposed by the ACMPRs restrict s. 7 rights in a manner contrary to the principles of fundamental justice.

Conclusion

[119]    I agree with the reasoning in Ferkul and Karuna Health Foundation.  I cannot conclude that there is a s. 7 violation.  I repeat and agree with the following remarks by Rondinelli J. in Ferkul:

[12]  Each of these principles involves comparison with the object of the law that is challenged:  Bedford, at para. 123.  The object of the ACMPR is to “provide Canadians with a greater range of options to access cannabis for medical purposes in order to address the issue of reasonable access as identified by the court [in Smith and Allard]”:  ACMPR Regulatory Impact Analysis Statement, Affidavit of Todd Cain, Respondent’s Record, Volume I, Tab 1a.  This purpose fits within the CDSA’s objective of protection of health and public safety:  Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 at para. 129.

…

[15]  In my view, the barriers that the Applicant highlights do not rise to a level of infringing s. 7 of the Charter.

[16]  When it comes to health care, Chief Justice McLachlin and Justice Major wrote in Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at para 104, “The Charter does not confer a freestanding constitutional right to health care.  However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.”  But just because the scheme must comply with the Charter, it does not mean that the government “must do everything possible to save the lives of its citizens in every circumstance, including funding all potentially life-saving treatments”:  Flora v. Ontario Health Insurance Plan, 2007 CanLII 339 (ON SCDC) at para. 227.

[17]  In my view, the Applicants are seeking a system that provides perfect access (which is not constitutionally required), rather than one that provides reasonable access (which is constitutionally protected).

[18]  The ACMPR regime provides multiple avenues to access cannabis for medical purposes.  Indeed, it provides medical cannabis patients with more options than any previous regime.  Since Smith and Allard v. Canada, 2016 FC 236 were decided, the ACMPR now permits medical cannabis patients to both possess and produce cannabis derivatives and to purchase and possess cannabis oil.  It also allows patients to designate others to produce derivatives for those patients with their cannabis.  Also, unlike in Allard where patients could only purchase cannabis for medical purposes from licensed producers, the ACMPR permits patients to grow it for themselves or to designate a third party to grow it for them.  The ACMPR permits all authorized patients nationwide to access cannabis for medical purposes.  Access is not dependent on being located in or near a city centre or having access to transportation.  Storefront access would not necessarily improve the plight of the homeless or those living in precarious housing since it would be impossible to provide enough storefronts in both urban and remote communities to provide practical access to this marginalized group.

[120]    I also repeat and agree with this comment from Karuna Health Foundation:

[145]  Distilled down, the case law suggests that while legislation must allow sufficient access to medical marihuana, the courts have also repeatedly emphasized that such access is subject to government limits and government regulation: see e.g. Malmo-Levine; Hitzig; Sfetkopolous; R. v. Voss, 2013 ABCA 38 at para. 7.

[121]    There is no violation of s. 7 of the Charter.

Section 1

[122]    The Crown concedes that if there is a s. 7 Charter violation, s. 1 will not provide a justification in this case.  However, because there is no violation of s. 7, this concession is irrelevant, and no s. 1 analysis is required.

Conclusion

[123]    Mr. Enns’ s. 7 Charter application is dismissed.

 

Arnold, J.