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Synopsis of Ontario Court of Appeal Ruling

By Hempology | October 10, 2003

C.O.A. FILE NOS: C39532; C39738; C39740

Synopsis of Hitzig et al. v. Her Majesty the Queen; Parker v. Her Majesty the Queen;
and Paquette and Turmel v. Her Majesty the Queen

The federal government has recognized since 1999 that the possession and use or marihuana
for medical purposes by individuals who can demonstrate medical need should not be a crime
under the Controlled Drugs and Substances Act. In June 1999, the government began
to issue ministerial permits allowing individuals to possess and cultivate marhuana for
medicinal purposes. In July 2000, this court held in R. v. Parker that a scheme
that depended entirely on how the Minister of Health chose toe xercise his or her
discretion was unconstitutional. The court gave the government one year to fix the
constitutional defect.

The government responded in July 2001 with the Marihuana Medical Access Regulations
. The MMAR recognize that marihuana is medically appropriate
medication for the treatment of various symptoms associated with various serious illnesses.
They also recognize that the detemrination of when marihuana is a medically appropriate
medication and the amount of marihuana that is appropriate are decisions that should be
made by qualified physicians and not by government officials or by the users of marihuana.

The MMAR provide that an authroization to possess (ATP) marihuana shall be issued
where an applicant meets the medical criteria set out in the regulations. They also provide
for authorizations to grow the marihuana needed to fill an ATP holder’s medical needs.
The ATP holder may personally acquire a license (PPL) or a person designated to grow the
marihuana for the ATP holder may acquire a license (DPL).

Following promulgation of the MMAR, several seriously ill individuals brought a
joint application in the Superior Court of Justice challenging their constitutionality.
On January 9, 2003, Justice Sidney N. Lederman concluded that, because the MMAR
failed to provide a legal supply of marihuana for persons entitled to possess it for medicinal
purposes, the regulations are constitutionally invalid and of no force and effect. However,
he suspended his declaration of invalidity for a period of six months.

On July 8, 2003, shortly before these appeals were heard, the government brought forward
an interim policy making available for approved medical users marihuana seeds and dried
marihuana grown for the government. However, the interim policy was to be in place
“only while clarification was being sought from the courts” and the government did not ask
the court to pass on the constitutionality of the MMAR as modified by the interim
policy nor suggest that the interim policy should have any effect on the outcome of these

In a judgement released today, a panel of the Court of Appeal, consisting of Justices
David Doherty, Stephen Goudge and Janet Simmons unaminously dismissed the federal
government’s appeal of Justice Lederman’s decision.

The court accepted that the evidence filed on the application establishes that many individuals
who have or would be entitled to receive an ATP will have to go to the black market on a
more or less regular basis to maintain their supply of medical marihuana. The court observed
that many of these individuals are not only seriously ill, they are also significantly
physically handicapped and therefore cannot possibly grow their own marihuana. Moreover,
because of restrictions in the MMAR, cultivation by a designate (DPL holder) will
be an answer for only some of the persons who qualify.

The court noted that the MMAR scheme assumes the existence of the black market
and indeed depends on it, but that medical marihuana users have experienced significant
difficulties in accessing the black market safely. The court concluded that a scheme
that authorizes possession of marihuana by seriously ill individuals but which drives some
of them to the black market to meet their recognized medical needs undermines the rule of
law and fails to create a constitutionally valid medical exemption to the criminal prohibition
against possession of marihuana contained in s. 4 of the Controlled Drugs and Substances

In addition to holding that the absence of a legal supply of medical marihuana makes the
MMAR constitutionally defective, the court determined that the requirement in the
MMAR that some applicants have the support of a second specialist physician to
establish medical need is unconstitutional. Primarily because the second specialist is
not asked to opine about the principal justification advanced by the government to support
specialist involvement, namely, the availablity of other possible treatments, the court
determined that the second specialist requirement is an arbitrary barrier that adds little
or nothing to the assessment of medical need.

Rather than strike down the MMAR in their entirety and declare that the marihuana
prohibition contained in s. 4 of the Controlled Drugs and Substances Act continues
to be of no force and effect, the court crafted a narrower remedy more specifically targeted
to the constitutional shortcomings it had identified, striking down only the following
specific provisions of the MMAR:

The court concluded that the same considerations that justified the narrow focus of its remedy
militated against suspending it. The court said that unlike a broader declaration, this
narrow remedy would crate a constitutionally valid medical exemption, making the marihuana
prohibition in s. 4 of the Controlled Drugs and Substances Act immediately
constitutionalyl valid and of ful lforce and effect and removing any uncertainty concerning
the validity of the prohibitoin. In addition, the court noted that its order represents
a minimal intrusion on the government’s scheme of medical exemption. It leaves untouched
the licensed possession aspect of the MMAR and modifies the licensed production
aspect only enough to make it constitutionally acceptable. Moreover, the remedy crafted
by the court merely clears the way for licensing those suppliers upon whom the government
scheme attempted to rely. Finally, the court said that if the government chooses to adopt
a fundamentally different approach to the medical exemption issue or if it chooses to impose
additional reasonable limits on the present scheme, the government can do so easily with
dispatch, by way of regulation.

The court emphasized that its decision applies only in respect of persons who establish
a medical need to use marihuana to relieve symptoms of serious illnesses and that it does not
apply to persons who wish to use or possess marihuana for social or recreational purposes.
The court dismissed two additional related appeasl brought by three individuals whose
applications for constitutional declarations were also heard by Justice Lederman, holding
that no further relief was warranted based on the evidence adduced in those applications.

Synopsis of R. v. J.P.

In its concurrently released decision of R. v. J.P., the court confirmed that the
offence of possession of marihuana in s. 4 of the Controlled Drugs and Substances Act
was of no force and effect on April 12, 2002 (the date the young person was charged) because,
as of that date, there was no constitutionally valid medical exemption to the marihuana
prohibition as required by Parker. However, the court concluded that the scope
of the marihuana possession prohibition is subject to change by regulation.

Synopsis of R. v. Turmel.

In its concurrently released decision of R. v. Turmel, the court rejected the
appellant’s argument that its decision in R. v. Parker had the effect of removing
marihuana from Schedule II of the Controlled Drugs and Substances Act. The court
confirmed that the declaration in Parker was limited to the offence of possession of
marihuana contained in s. 4 of the Controlled Drugs and Substances Act and that
the offence of possession of marihuana for the purpsoe of trafficking contained in s. 5(2)
of the Act continued to exist on May 26, 2003 (the date Mr. Turmel was charged).

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