DATE: 20000731
                                                   DOCKET: C28732
                   COURT OF APPEAL FOR ONTARIO
              CATZMAN, CHARRON and ROSENBERG JJ.A.
                      Summary of Judgment
BETWEEN:                    )
                                   )    Kevin R. Wilson,
HER MAJESTY THE QUEEN              )    for the appellant
                                   )
                    Appellant      )    Richard P. Macklin and
                                   )    Aaron B. Harnett,
- and -                            )    for the respondent
                                   )
TERRANCE PARKER                    )    Ed Morgan,
                                   )    for the Intervener,
                    Respondent     )    Epilepsy Association of Toronto
                                   )
                                   )    Heard: October 6, 7 and 8, 1999
                                   )
On appeal against the stay of proceedings granted to the
respondent by The Honourable Judge Patrick Sheppard on December
10, 1997
ROSENBERG J.A.:
[1]  This is one of two appeals heard by this court concerning
the constitutionality of the marihuana prohibition in the former
Narcotic Control Act, R.S.C. 1985, c. N-1 and the Controlled
Drugs and Substances Act, S.C. 1996, c. 19.  The appeal in R. v.
Clay concerns the use of the criminal law power to penalize the
possession of marihuana.  This Crown appeal concerns the medical
use of marihuana.
OVERVIEW
[2]  It has been known for centuries that, in addition to its
intoxicating or psychoactive effect, marihuana has medicinal
value.  The active ingredients of marihuana are known as
cannabinoids.  The cannabinoid that gives marihuana its
psychoactive effect is tetrahydrocannabinol (THC).  While less is
known about the other cannabinoids, the scientific evidence is
overwhelming that some of them may have anti-seizure properties.
The most promising of these is cannabidiol (CBD).  Smoking
marihuana is one way to obtain the benefit of CBD and other
cannabinoids with anti-seizure properties.
[3]  The respondent Terrance Parker has suffered from a very
severe form of epilepsy since he was a young child.  For close to
40 years he has experienced frequent serious and potentially life-
threatening seizures.  He has attempted to control these seizures
through surgery and conventional medication.  The surgery was a
failure and the conventional medication only moderately
successful.  He has found that by smoking marihuana he can
substantially reduce the incidence of seizures.  Since he has no
legal source of marihuana, he has been growing it himself.  On
two occasions, the police searched his home and seized the
marihuana.  He was first charged with cultivating marihuana under
the Narcotic Control Act.  By the time of the second
investigation, that Act had been repealed and he was charged with
possession of marihuana under the new Controlled Drugs and
Substances Act.
[4]  The former Narcotic Control Act and the Controlled Drugs and
Substances Act prohibit under threat of imprisonment the
possession and cultivation of marihuana.  That prohibition is
theoretically not absolute.  Both statutes contemplate that drugs
like marihuana may have medicinal value and therefore should be
available through a regulatory process.  If a drug receives the
necessary regulatory approval, it can be made available to the
public through a physician’s prescription.  A synthetic version
of THC, known as Marinol, has been approved for use in Canada and
is available by prescription.  No drug company has applied for a
licence to sell CBD and therefore it is not available in Canada.
[5]  Parker decided to fight the charges against him by
attempting to show that the prohibition on the cultivation and
possession of marihuana in the two statutes is unconstitutional.
Specifically, he claims that the legislation infringes his rights
as guaranteed by s. 7 of the Canadian Charter of Rights and
Freedoms.  Section 7 guarantees that everyone has the right to
life, liberty and security of the person and the right not to be
deprived of those rights except in accordance with the principles
of fundamental justice.  Put simply, Parker claims that he needs
to grow and smoke marihuana as medicine to control his epilepsy.
Because Parliament has made cultivation and possession of
marihuana illegal, he faces the threat of imprisonment to keep
his health.  Parker argues that a statute that has this effect
does not comport with fundamental justice.  To support his claim
at trial, Parker led a great deal of scientific and other
evidence.  That evidence demonstrated the therapeutic value of
marihuana for treating a number of very serious conditions
including epilepsy, glaucoma, the side effects of cancer
treatment and the symptoms of AIDS.
[6]  The government countered with its own evidence at trial.  It
argued that Parker does not need marihuana to control his
seizures and that he has a number of other legal therapeutic
alternatives; such as better treatment with conventional epilepsy
medication or obtaining a prescription for Marinol.
[7]  In reasons reported at (1997), 12 C.R. (5th) 251, Sheppard
J. of the Ontario Court of Justice concluded that Parker requires
marihuana to control his epilepsy and that the prohibition
against marihuana infringes Parker’s rights under s. 7 of the
Charter.  Sheppard J. stayed the cultivation and possession
charges against Parker.  Further, in order to protect Parker and
others like him who need to use marihuana as medicine the trial
judge read into the legislation an exemption for persons
possessing or cultivating marihuana for their “personal medically
approved use”.
[8]  The Crown appeals from that judgment.  It argues that the
trial judge made a factual error in finding that Parker requires
marihuana for medical purposes.  The Crown also argues that the
legislation is valid and that there are legal means by which
Parker can obtain marihuana.  It says that the legislation is not
unconstitutional simply because no drug company has attempted to
have marihuana or CBD licensed for sale through prescription.  It
also argues that Parker could have applied for a special
exemption from the Minister of Health under s. 56 of the
Controlled Drugs and Substances Act.  It points to fresh evidence
placed before this court that the Minister has granted such
exemptions to other persons who need marihuana for therapeutic
purposes.  Finally, the Crown says the remedy granted by the
trial judge was wrong and he should not have, in effect, amended
the legislation, that this is a matter for Parliament.
[9]  Parker supports the decision of the trial judge.  The
Epilepsy Association of Toronto has intervened in this appeal and
it also supports the trial judge’s decision.  In addition, the
Association attempts to raise a new argument, that the statutes
also violate the equality provisions of the Charter.
[10] I have concluded that the trial judge was right in finding
that Parker needs marihuana to control the symptoms of his
epilepsy.  I have also concluded that the prohibition on the
cultivation and possession of marihuana is unconstitutional.
Based on principles established by the Supreme Court of Canada,
particularly in R. v. Morgentaler, [1988] 1 S.C.R. 30, 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, 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 dependent 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.
[11] Accordingly, I would uphold the trial judge’s decision to
stay the charges against Parker and I would dismiss that part of
the Crown’s appeal.  However, I disagree with Sheppard J.’s
remedy of reading in a medical use exemption into the
legislation.  I agree with the Crown that this is a matter for
Parliament.  Accordingly, I would declare the prohibition on the
possession of marihuana in the Controlled Drugs and Substances
Act to be of no force and effect.  However, since this would
leave a gap in the regulatory scheme until Parliament could amend
the legislation to comply with the Charter, I would suspend the
declaration of invalidity for a year.  During this period, the
marihuana law remains in full force and effect.  Parker, however,
cannot be deprived of his rights during this year and therefore
he is entitled to a personal exemption from the possession
offence under the Controlled Drugs and Substances Act for
possessing marihuana for his medical needs.  Since the Narcotic
Control Act has already been repealed by Parliament, there is no
need to hold it unconstitutional.  If necessary, I would have
found that Parker was entitled to a personal exemption from the
cultivation offence for his medical needs.
[12] Following are my reasons for these conclusions.  Because a
principal part of the Crown’s attack on the trial decision was on
the trial judge’s findings of fact, I will deal at some length
with the evidence.  I will then review the trial judge’s findings
on the law before setting out my own analysis of the legal
issues.  Finally, I will explain why I would grant a different
remedy from the remedy granted by the trial judge.
THE FACTS

(i)  The facts of the offences
[13] Marihuana was seized from the respondent on two different
occasions.  On July 18, 1996, police officers executed a warrant
at the respondent’s home and seized 71 marihuana plants.  He was
charged with cultivating cannabis marihuana contrary to s. 6(1)
of the Narcotic Control Act and possession of cannabis marihuana
for the purpose of trafficking contrary to s. 4(2) of the Act.
On September 18, 1997, the police again attended at the
respondent’s home and seized three growing marihuana plants.  By
this time, the Narcotic Control Act had been repealed.  On this
occasion, the respondent was charged with possession of marihuana
contrary to s. 4(1) of the Controlled Drugs and Substances Act.
[14] A short note on terminology.  Section 3 of the Narcotic
Control Act prohibits the unauthorized possession of a
“narcotic”.  The term “narcotic” is defined in s. 2 of the Act as
anything included in the schedule to the Act.  Section 3 of the
schedule lists “Cannabis sativa, its preparations, derivatives
and similar synthetic preparations” including “Cannabis
(marihuana)”, “Cannabidiol” (CBD), and “Tetrahydrocannabinol”
(THC).  Section 6 prohibits the unauthorized cultivation of
“marihuana”.  Section 2 defines marihuana as “Cannabis sativa L.”
In the evidence, the terms cannabis and marihuana tended to be
used interchangeably.  For simplicity, I will try to use only the
term marihuana when referring to the plant and the raw part of it
that is smoked by users.  This appeal does not deal with
“refined” marihuana such as cannabis resin (hashish).  I will
refer to the two active ingredients about which there was
considerable evidence by their initials THC and CBD.  Marinol is
a synthetic form of THC.
[15] The Controlled Drugs and Substances Act is slightly
different in form from the Narcotic Control Act.  Section 4
prohibits the unauthorized possession of “substances” listed in
certain schedules, including “Cannabis (marihuana)” and CBD and
THC.  Section 7 of the Act prohibits the unauthorized production
of substances in the schedules and thus Cannabis (marihuana).
Again, for simplicity I will use the term marihuana to refer to
the substance grown and used by Parker.
[16] To return to the facts, the charge of possession for the
purpose of trafficking was based on Parker’s admission to the
police that he gives some of his marihuana to other persons who
need it for their epileptic seizures.  He was found guilty of
that offence.  The Charter challenge does not relate to that
offence and it played no part in the proceedings in this court.
[17] There was no dispute about the facts upon which the
cultivation charge under the Narcotic Control Act and the
possession charge under the Controlled Drugs and Substances Act
were based.  At one point in the proceedings, Parker had
apparently considered relying on a defence of necessity.
However, he did not pursue that defence and the only issue at
trial was the constitutionality of the prohibition against
possession and cultivation of marihuana where an accused claims
that he or she requires the marihuana for medicinal purposes. 
(ii) Parker’s health and experience with marihuana
[18] When he was four and six years of age, Parker suffered two
serious head injuries.  He was diagnosed with epilepsy after the
first accident and thus has had epilepsy for almost 40 years.  He
suffers from the whole range of seizures associated with
epilepsy.  These range from petit mal seizures, which are brief
spells where he almost collapses, to status epilepticus when he
suffers a series of grand mal seizures and requires immediate
emergency medical attention.  Grand mal seizures leave Parker
unconscious, violently twitching and writhing on the ground.  He
will sometimes vomit, lose control of his bowels, choke on his
own saliva and smash his head against the ground.
[19] Parker also has various other types of seizures including
the following:
          Jacksonian:  Limbs shake and vibrate 
	  uncontrollably, lasts for up to 45 seconds.

          Complex partial (psychomotor):  Vivid
          hallucinations and problems in perception
          that last up to three minutes; during one of
          these episodes Parker mistook the end of a
          subway platform for the back of a truck and
          jumped off; he was brought to his senses by
          the sound of an approaching train and was
          able to scramble to safety.

          Partial continuous:  Uncontrollable grinding 
	  of teeth and loss of control of left arm and
	  leg for short bursts up to a minute.  An 
	  episode can include dozens of attacks lasting 
	  more than a day.

          Akinetic:  Parker drops to the ground
          and lies unconscious for up to five minutes.
          He often injures his head and face in the
          fall.
[20] Parker has been prescribed many drugs for the treatment of
his epilepsy.  The primary drugs in his plan are Phenytoin
(Dilantin) and Primidone (Mysoline).  Both drugs have various
side effects to which I will refer below when reviewing the
expert evidence.
[21] The seizures associated with Parker’s epilepsy severely
disrupted his school attendance.  As a child and young teen,
Parker grew increasingly despondent over his medical condition
and the terror he experienced with seizures.  Aggressive medical
treatment with various drugs did not improve his condition.
[22] At the age of 14, in an attempt to control his seizures,
Parker underwent a right temporal lobectomy at the Toronto
Hospital for Sick Children.  The operation involved the opening
of his cranium and the removal of brain matter.  The operation
was a complete failure and Parker suffered a grand mal seizure in
the recovery room.  Parker became depressed and suicidal and was
hospitalized in various psychiatric hospitals.  At the age of 16,
Parker agreed to further surgery.  Only local anesthetic was used
and thus Parker was awake while his skull was opened and further
brain material was scraped away.  The operation did not reduce
the seizures.
[23] In the late 1960’s, Parker was introduced to marihuana while
an in-patient at a provincial institution.  Parker’s use was
originally recreational.  By 1974, he was a regular user and he
had observed that while under the influence of marihuana, the
frequency and intensity of his seizures sharply declined.
[24] In 1980, Parker reported his experience with marihuana to
his physician and started to diarize his marihuana use and
seizure frequency.  Over a six-month period, he found that he
experienced grand mal seizures when he did not take marihuana and
experienced no seizures when he took marihuana in addition to his
prescription medicine.
[25] In 1987, Parker’s physician advised that the side effects of
the prescription medications were so severe that higher dosages
could not be used.  Therefore, the physician advised him to
regularly use marihuana in conjunction with his prescription
medicine to control his seizures.  The physician provided a
report in September 1987 that included the following:
	Mr. Parker has had many side effects over the 
	years due to his anti-convulsant medications, 
	which have prevented their perhaps more 
	efficacious use in higher doses.  These side 
	effects are well-recognized in the medical 
	literature.  Hence, from a medical and quality-
	of-life point of view, I am of the opinion that 
	it is medically necessary, in order to obtain 
	optimal seizure control, that Mr. Parker 
	regularly use marijuana in conjunction with his 
	other anti-convulsant medications.
[26] In 1987, Parker was charged with possession of marihuana.
He was acquitted on the basis of the common-law defence of
necessity.  A Crown appeal to the Ontario District Court was
dismissed.  Shapiro Dist. Ct. J. noted Parker’s lengthy history
of grand mal epilepsy and his attempts at treatment with drugs
and through surgery and concluded that the trial judge could
properly find that the necessity defence was made out.
[27] Parker continued to derive substantial benefit from smoking
marihuana in conjunction with his prescription drugs.  If he
consumes marihuana on a daily basis, he experiences virtually no
seizures.  Without marihuana, within three days he experiences
seizures again and will have three to five grand mal seizures a
week and many more other lesser seizures.  Parker is also able to
use marihuana to avert oncoming seizures.  When he experiences a
prodrome, a precursor to a grand mal seizure, and consumes
marihuana, he is able to combat the oncoming seizure.
[28] The seizures associated with Parker’s epilepsy constitute a
serious threat to his health and safety.  He has been
hospitalized over 100 times due to injuries sustained from
seizures.  He has been robbed while unconscious and arrested as
being drunk, although he does not drink alcohol.  Because of the
severity of his symptoms, Parker is unable to work and is on a
government disability pension.
[29] From 1980 to 1996, Parker was not under the care of an
epilepsy specialist.  He was under the care of a specialist at
the time of the trial in 1997, having first seen him about three
weeks before the trial.  Parker has had his blood levels
monitored about twice a year.  The only change in medication that
has been recommended by a physician in the recent past was from
an emergency room physician who suggested that he increase the
dosage of Dilantin from 300 mg to 400 mg per day.  Parker
declined due to his concern about liver damage at the increased
dosage.  Crown counsel conducted an extremely brief cross-
examination of Parker, which showed that Parker had not asked to
have Marinol prescribed for him.
[30] Parker’s mother filed an affidavit on the appeal to update
his medical condition.  She states that Parker’s health has
greatly improved since the trial and she attributes this to the
lack of seizures due to his use of marihuana.
[31] At trial, some evidence was given about Parker’s
participation in a study at the Addiction Research Foundation in
1979.  He testified that he was given some pills containing what
he was later told was some form of synthetic THC, a placebo, and
a plant that had been sprayed with THC.  He had little
information at trial about the study or its conclusions.  He
believed that the study concluded that the use of THC had neither
a beneficial nor detrimental effect on his seizures.
[32] On appeal, counsel for Parker produced the results of the
study.  No objection was taken to this evidence and indeed the
appellant relied upon this material.  This study assumed
considerable importance on the appeal and therefore I set out its
findings in some detail.  The study was undertaken to assess
Parker’s claim that marihuana was beneficial in controlling his
seizures.  The authors of the study noted that “recently
cannabidiol [CBD], a marijuana constituent which lacks
psychotropic effects in man, has been studied in a wide variety
of both natural and experimentally induced epileptic models and
has been shown, almost uniformly, to be anti-convulsant”.
However, the ARF study of Parker dealt only with THC, in part,
because it was available in a purified form.
	From the study it would appear that [THC] had 
	neither beneficial nor detrimental effects on 
	either the clinical or electroencephalographic 
	features of this man's seizure disorder. Several 
	factors however, make it difficult to correlate 
	our findings with what actually happens while he 
	is out of hospital smoking crude marijuana.  The 
	marked decrease in seizure frequency during 
	hospitalization is a well recognized occurrence.
        Hospitalization also ensured anticonvulsant drug 
	compliance to Dilantin particularly since it was 
	subtherapeutic on admission and also after 
	discharge.  The use of pure [THC] is also open to
        criticism since the patient's experience had been 
	with crude marijuana in which [THC] is only one of 
	several cannabinoids including cannibidiol which 
	may be more exclusively anticonvulsant.  This 
	patient however was followed at weekly intervals 
	for four weeks after discharge with his 
	anticonvulsants being supplied in weekly allotments.  
	During this time he was regularly smoking crude 
	marijuana obtained on the street.  Seizure frequency 
	remained low with only two seizures in the four 
	weeks.  The EEG's showed no significant difference 
	from those done in hospital and the marijuana urine 
	levels were just slightly below those measured in 
	hospital.  Dilantin levels were subtherapeutic but 
	Tegretol and Mysoline remained within the therapeutic 
	range.
	Much more extensive clinical investigation is needed  
	with both crude marijuana and the individual 
	cannabinoids before any definitive statement can be  
	made concerning either harmful or beneficial effects  
	in epileptics.  Perhaps different types of seizure   
	disorders respond differently and Feeney has also 
	suggested that the response depends to some extent 
	on the pre-drug baseline seizure frequency and 
	intensity, seizures being activated in individuals 
	with a low baseline frequency and attenuated in  
	those with a high baseline frequency.  Until more 
	work is done, however, we feel it prudent to advise  
	epileptics against the use of marijuana.  [Footnotes
        omitted.]          
[34] The parties drew completely opposite conclusions from this
study.  Parker relies on the study as further evidence in support
of the trial judge’s findings of fact.  On the other hand, the
Crown suggests that the study supports its submission that
findings made by the trial judge concerning Parker’s need for
marihuana to control his seizures are unsupported by the
evidence.  I will set out those findings of fact in some detail
after my review of the expert evidence.  Suffice it to say at
this stage that the trial judge found as a fact that synthetic
THC (Marinol) is not effective for Parker since it does not
contain CBD, that Parker had shown control of seizures is best
achieved through a combination of conventional medication and
smoking marihuana, and that he had been reasonably diligent in
attempting to control his seizures through conventional
treatment.
[35] In my view, the ARF study confirms Parker’s belief that THC
does not have a therapeutic effect on him.  The Crown overstates
the case that the ARF study shows that if Parker properly
monitored his intake of conventional medications he would not
need to resort to marihuana use.  As the authors point out,
“marked decrease in seizure frequency during hospitalization is a
well recognized occurrence”.  There was no suggestion that
Parker’s continued hospitalization was a reasonable alternative
to his use of marihuana to control his seizure activity outside
the hospital.  It may be that hospitalization also ensured
anticonvulsant drug compliance.  However, the issue of Parker’s
use of conventional medication and compliance with that regime
was squarely before the trial judge.  It was open to the trial
judge to accept Parker’s evidence that he took his medication as
prescribed.  The ARF study also confirms that Parker’s decision
not to seek a prescription for Marinol was a reasonable one.  In
addition, no physician has apparently suggested that Parker use
Marinol.  As counsel for Parker aptly pointed out in oral
argument, the only person who has “prescribed” Marinol for Parker
is Crown counsel.  Finally, the ARF study marginally supports the
theory that it is CBD rather than THC that is the medicinal
ingredient in marihuana at least in respect of control of
seizures.  It therefore supports the trial judge’s finding in
that regard in respect of Parker.
(iii)  The harmful and therapeutic effects of marihuana
[36] The parties placed a considerable body of evidence before
Sheppard J. about the medicinal use of and claims about
marihuana.1  On consent, the parties filed the transcripts from
the trial in R. v. Clay.  The principal experts were Dr. Kalant,
who had also testified for the Crown at the Clay trial, and Dr.
Morgan, who testified on behalf of the defence.  Both are highly
qualified.
[37] It appears to me that the differences between the Crown and
defence experts lay mostly in the emphasis they placed on certain
facts and the inferences they drew.  One fact looms very large in
this case, as it did in the Clay case.  The experts agreed that
there is a need for better studies about the long-term effects of
regular marihuana use and for better studies about the
therapeutic value of marihuana.
[38] As I have indicated, the transcripts from the trial in R. v.
Clay were filed on consent in this trial.  That evidence set the
background for the issues in this case as it set out the existing
state of knowledge about the harmful health effects of marihuana.
Sheppard J. adopted the findings of fact made by McCart J. in the
Clay trial.  Since those findings are fully set out in my reasons
in the Clay appeal, I will only briefly summarize the findings of
particular relevance to this appeal.
[39] Consumption of marihuana is relatively harmless compared to
the so-called hard drugs and including tobacco and alcohol and
there is no “hard evidence” that even long-term use can lead to
irreversible physical or psychological damage.  Marihuana use is
not criminogenic (i.e. there is no causal relationship between
marihuana use and criminality) and it does not make people more
aggressive or violent.  There have been no recorded deaths from
consumption of marihuana.  Marihuana does have an intoxicating
effect and it would not be prudent to drive while intoxicated.
As with tobacco smoking, marihuana smoking can cause bronchial
pulmonary damage, especially in heavy users.  There may be other
side effects from the use of marihuana and its effects are
probably not as benign as was thought some years ago.  However,
these other effects are not acute except in very narrow
circumstances, for example, people with schizophrenia.  I will
return to the question of the harmful effects of marihuana when
discussing the objectives of the marihuana prohibition in the
legal analysis.
[40] On this appeal, the Crown disputes some of the findings by
McCart J. and hence their acceptance by Sheppard J.  The Crown
relies upon evidence that Dr. Kalant gave at the trial in
commenting on the findings by McCart J.2  Dr. Kalant’s
reservations about the findings made in the Clay trial are minor
and, in any event, do not seriously affect the constitutional
analysis in this case, which is concerned with the medical use of
marihuana.3  For example, Dr. Kalant repeated the testimony he
gave at the Clay trial that if the level of use went up
“dramatically”, the amount of harm produced by “heavy use” would
undoubtedly also go up.  For the purposes of this case, I would
accept that common-sense observation, but there is no indication
that the medicinal use of marihuana would lead to a dramatic use
in marihuana generally.
[41] Dr. Kalant also pointed out that the phrase “hard evidence”
was not defined in the reasons for judgment, and therefore the
statement should not be accepted as a “statement of fact”.  In my
view, this is a matter of semantics and reflects the difficulty
of reconciling scientific proof with proof in litigation.  In
short, scientists can continue to study a problem until it is
resolved.  They find facts through continual testing,
experimentation and research.  A finding will only be accepted as
a fact when it can be replicated under carefully controlled
circumstances by many different researchers.  This is a
particularly onerous standard where, as with the harmful effects
of marihuana, what is sought to be demonstrated is a negative,
that marihuana does not cause serious physical or mental harm.
The fact that on the current state of the research no such
negative conclusion can be reached is not a statement for
scientists that there is no harm, only that more studies may have
to be done.  Trial judges do not have that luxury.  They are
required to reach a conclusion on the basis of the record placed
before them by the parties.  When McCart J. said that there was
no hard evidence of irreversible organic mental damage from the
consumption of marihuana, he was making a finding that he was
satisfied that no such harm had been demonstrated on the evidence
presented in his courtroom.  This finding was in any event
qualified by the finding, accepted by Sheppard J., that there was
a satisfactory body of evidence that heavy smoking of marihuana
can cause bronchial pulmonary damage.
[42] I will now turn to the evidence concerning the medicinal use
of marihuana.  There are a number of active ingredients,
cannabinoids, in marihuana.  The main ingredient in marihuana
that gives it the psychoactive effect is THC.  As indicated
earlier, THC is available in synthetic form and is available in
pill by prescription under the trade name Marinol.  There is a
dispute between the parties as to whether Marinol is effective in
treating seizures associated with epilepsy or any of the other
symptoms of diseases for which patients have resorted to
marihuana such as glaucoma and AIDS.
[43] Other cannabinoids may have anti-seizure properties.  One of
the most promising may be cannabidiol (CBD).  CBD does not have a
psychoactive side effect.  It is not available by prescription.
The studies that have been done indicate that the cannabinoids
increase the effectiveness of conventional drugs used to treat
epilepsy and are not a replacement for those drugs.  The goal for
effective treatment of epilepsy is to maintain a steady blood
level of medication.
[44] The Crown’s witness, Dr. Kalant, did, in general, provide
strong support for the respondent’s position that marihuana does
have therapeutic properties for treating epilepsy and other
illnesses.  He testified, for example, that “there is a lot of
evidence showing a variety of cannabinoids, that is the pure
compounds contained in and extracted from cannabis, do have anti-
seizure activity”.  Most of this evidence has come from animal
studies.  He testified that of the various cannabinoids tested
the most promising one was CBD.  It has at least as much anti-
convulsant effect as THC but is free of the psychoactive effects.
Further, research shows that tolerance to the anti-convulsant
action of THC occurs very quickly, “in a matter of days”, so it
loses its effect.  This does not happen with CBD.  As well, there
is a simpler dose response relationship with CBD, meaning the
more that is given, the greater the effect.  With THC, while low
doses may be good at controlling seizures, high doses can produce
seizures.  As he pointed out, this makes smoking marihuana that
contains both THC and CBD a problematic delivery system,
especially since smoked marihuana contains more THC than CBD.  He
emphasized that not enough human studies had been done.  One good
human study done by the Cunha group found that pure CBD taken
with patients’ regular medication improved the condition of all
but one of the epileptic patients.
[45] Dr. Kalant also highlighted one of the paradoxical
consequences of the drug laws.  Marinol, which has these various
side effects, especially that it causes the psychoactive effects
of marihuana, is available in Canada while CBD, which does not
have these side effects, is not.  As he said:
	I’m not sure why not because since it is essentially 
	free of psycho-active effect and it has a well
	demonstrated anti-epileptic activity, I should think 
	that it would be well worthwhile to do clinical 
	trials and I really just don’t understand why there 
	has been no further clinical testing since the 1980 
	[Cunha] study.
[46] The defence witness, Dr. Morgan, testified that marihuana
has been found useful for treatment of acute nausea and vomiting,
as results, for example, from chemotherapy, and Marinol was
originally approved for this purpose by the government.  Smoking
marihuana has been found to be effective in lowering fluid
pressure in the eyes of patients with glaucoma.  Marihuana is
also effective in promoting weight gain and increase of appetite,
which is particularly important, for example, for patients with
AIDS who are suffering from HIV Related Wasting Syndrome.
Marihuana was found to give relief to patients with
pathologically elevated muscle tone such as patients with
multiple sclerosis or spinal cord damage leading to spastic
paralysis of the limbs.  Marihuana is also an analgesic.
Finally, marihuana has been found to have anti-seizure properties
and thus is used by persons with epilepsy, like Parker.
According to Dr. Morgan, there were a number of studies showing
that THC or CBD have quite pronounced anti-epileptic activity.
Dr. Morgan referred to the Cunha study and other literature
suggesting that CBD was as effective as or more effective than
THC in this respect.  Dr. Morgan also referred to anecdotal
reports of the effectiveness of marihuana for epileptics.  In his
view, marihuana is an effective anti-epileptic medication for
some individuals.
[47] Dr. Morgan reviewed the side effects of the conventional
medication that the respondent was taking.  Dilantin, one of the
most common drugs used to treat epilepsy, can produce sedation
and drowsiness so the police have arrested patients because the
police believe they are intoxicated.  As well, the dose that
produces the therapeutic effect is very close to the toxic dose.
In chronic use, it can produce gingival hyperplasia, overgrowth
of the gums, which requires surgery to correct.  It has also been
known to produce damage to the brain and liver.  In general, it
is a dangerous drug.  Another drug used by Parker, Primidone,
metabolizes in the body to Phenobarbital and has the same side
effects, namely, drowsiness, sedation and severe dysfunction.
Another drug, Depakene, can produce outright failure of the liver
and patients have been known to die from its effect.  It also has
adverse effects on the foetus of a pregnant woman.
[48] On the other hand, marihuana, although it has a variety of
effects in humans, has no overdose liability.  There has never
been a proven overdose death caused by marihuana in humans.
Unlike the conventional medications, marihuana has an extremely
wide safety margin.  There is no reliable evidence that even
chronic use of marihuana has an adverse impact on cognition or
memory.  Marihuana is not known to harm the foetus.  Since
marihuana and tobacco smoke are similar in character, it can harm
the lungs.  However, a regular marihuana smoker, even a
therapeutic marihuana smoker, smokes much less than a tobacco
smoker (three to five marihuana cigarettes a day compared to 30
to 50 tobacco cigarettes) and therefore inhales much less smoke.
There is, therefore, reason to believe that the marihuana user
will not suffer as much pulmonary harm as tobacco smokers.  There
are no reports of marihuana-only smokers developing emphysema or
lung cancer.
[49] According to Dr. Morgan, Marinol is not very effective
because the THC is destroyed the first time it passes through the
liver.  Thus, only about 5% reaches the blood stream.  Much more
of the smoked marihuana becomes available to the body.  Marinol
is also essentially useless for acute situations.  Smoked
marihuana, on the other hand, can be used by persons who feel
nausea coming over them, because it delivers the THC quickly and
more effectively than Marinol.  Marihuana gives acute relief of
nausea and vomiting.  Marinol is also very expensive.  Marihuana
is more effective, more efficient and much cheaper.  Finally,
Marinol, since it only contains THC, is of no use to individuals,
particularly epileptic patients, who benefit from CBD.
[50] In summary, Dr. Kalant was wary of smoking as a way of
delivering the therapeutic benefits of cannabis.  He demonstrated
greater concern about the risks from smoking marihuana, was
concerned that smoking marihuana was a very inexact way to
deliver the drug and that a very large amount of marihuana would
have to be smoked to keep a therapeutic level of CBD in the
patient’s bloodstream.  He was, in general, more cautious about
the long-term effects of marihuana use because of the absence of
research.  Dr. Morgan was less concerned about the possible
harmful side effects of smoking marihuana.  He tended to discount
the risks and dangers and thus could see little, if any, reason
for refusing patients who need access to the drug.
[51] Dr. Morgan filed a further affidavit on the appeal and Dr.
Kalant filed an affidavit in response.  In his affidavit,4 Dr.
Morgan states that there have been no striking pharmacological
advances in the treatment of epilepsy since the trial and that
the respondent remains among the minority of sufferers who “are
clearly not fully responsive to conventional pharmacological
treatment for his condition”.  As to the use of marihuana to
treat epilepsy, Dr. Morgan referred to studies released since the
trial.  A study by the British Medical Association entitled
“Therapeutic Uses of Cannabis” concluded that cannabinoids appear
to be effective for a number of ailments including epilepsy and
as an anti-nauseant and while further research was needed,
“cannabinoids have a margin of safety superior to many
conventional drugs”.  In his affidavit, Dr. Kalant fairly points
out that the BMA study referred to the therapeutic benefits of
pure cannabinoids and that the study does not recommend the use
of smoked marihuana except for terminally ill patients.  Of
course, this overlooks the fact that there is no legal source for
the cannabinoids, other than THC (Marinol).
[52] Dr. Morgan also referred to the status of research
specifically concerning CBD.  He stated that animal studies and a
few human studies have indicated that CBD, not THC, may be the
therapeutically active cannabinoid for treating epilepsy and this
is a reason why Marinol does not answer the needs of some
patients.  He referred to a report by the United States Institute
of Medicine.  In general, that report recommended much more
extensive study of the possible therapeutic effect of marihuana
and the cannabinoids on a long list of illnesses.  With respect
to CBD, the report noted that the few human studies that had been
done were likely too small to demonstrate efficacy and concluded
that to date the potential anti-epileptic activity of CBD is not
promising.  The study emphasized that smoked marihuana is not
recommended because of the risk factors (from smoking) but the
authors also made these reasonable observations:
	The goal of clinical trials of smoked marijuana 
	would not be to develop marijuana as a licensed 
	drug, but rather as a first step towards the 
	possible development of nonsmoked, rapid-onset
        cannabinoid delivery systems.  However, it will 
	likely be many years before a safe and effective 
	cannabinoid delivery system, such as an inhaler, 
	will be available for patients.  In the meantime, 
	there are patients with debilitating symptoms for 
	whom smoked marijuana might provide relief.  The 
	use of smoked marijuana for those patients should 
	weigh both the expected efficacy of marijuana and 
	ethical issues in patient care, including providing 
	information about the known and suspected risks of 
	smoked marijuana use.
And
	Until a non-smoked, rapid-onset cannabinoid drug
        delivery system becomes available, we acknowledged 
	that there is no clear alternative for people 
	suffering from chronic conditions that might be 
	relieved by smoking marijuana, such as pain or AIDS 
	wasting.  One possible approach is to treat 
	patients as n-of-1 clinical trials, in which 
	patients are fully informed of their status as 
	experimental subjects using a harmful drug
        delivery system, and in which their condition is
        closely monitored and documented under medical
        supervision, thereby increasing the knowledge base of
        the risks and benefits of marijuana use under such
        conditions.  [Emphasis added.]
[53] Dr. Morgan also discussed other studies of more general
application.  He referred to a symposium of the Society for
Neuroscience on “Marijuana and Analgesia” which presented strong
evidence that cannabinoids had direct diminishing effects on pain
signals in animals.  Dr. Kalant reasonably points out that the
analegisic effect of cannabinoids described in the study is “well
demonstrated, but it does not require the smoking of cannabis”.
Of course, again, this does not seem to meet the problem that
these other cannabinoids are apparently not available in Canada.
[54] At trial, the defence called evidence from persons suffering
from glaucoma and epilepsy who have used marihuana to treat their
systems.  The defence also called Dr. John Goodhue, a general
practitioner doing primary care in Toronto for persons who are
HIV positive.  Some of his patients have developed AIDS.  He
testified that some of his patients have successfully used smoked
marihuana to treat the side effects from the many drugs AIDS
patients must take.
[55] Based on the evidence adduced at trial, the trial judge
found that the defence had established that smoking marihuana has
a therapeutic effect in the treatment of nausea and vomiting
particularly related to chemotherapy, intraocular pressure from
glaucoma, muscle spasticity from spinal cord injuries or multiple
sclerosis, migraine headaches, epileptic seizures and chronic
pain.  He accepted Parker’s evidence as to the therapeutic effect
of smoking marihuana in controlling his seizures.  He also
accepted that Parker’s cultivation of marihuana was incidental to
his need to possess marihuana for its therapeutic use for the
treatment of his epilepsy.  By cultivating marihuana he could
control its quality.  It was also an economic necessity since he
has only disability benefits from the Canada Pension Plan to live
on.  He cannot afford to pay illicit street prices to obtain
marihuana.  The trial judge found as a fact that Parker had
established he could best control his epileptic seizures through
a combination of prescribed medications and the smoking of
marihuana.
[56] At trial, the Crown argued that Parker had not shown that
other legal means were not available to control his seizures.
Crown counsel argued that Parker failed to seek sufficient
medical attention, failed to request a prescription for Marinol,
and failed to have his blood levels monitored by regular blood
tests.  The trial judge stated that he could “not accept” any of
these failures as being supported by the evidence.  He held that
Parker had been receiving regular medical supervision for his
prescribed drugs since 1969.  He found that Parker had not sought
a Marinol prescription because synthetic THC was not effective
for him as demonstrated in the Addiction Research Foundation
study.  The drug reaches his blood stream much faster when it is
inhaled.  Further, Marinol does not contain CBD, which appears to
have additional therapeutic value for him.  Finally, the trial
judge concluded that Parker does have regular blood work done
during numerous emergency hospital admissions and regular medical
visits.  The trial judge concluded that he “found no basis on
which to fault Mr. Parker for his management of his serious
medical condition”.
[57] The trial judge found that smoking marihuana is more
efficient and at least five times faster in delivering THC and
CBD to the blood stream than oral medication and, for people like
Parker, more effective.
(iv)  The regulation of drugs in Canada:  Legal means for 
obtaining marihuana as medicine
(a)  The evidence at trial
[58] As indicated, there was evidence that Marinol is available
in Canada by prescription.  Leslie Rowsell, the director of the
Bureau of Drug Surveillance, a division of Health Canada,
testified at the trial about the lawful means of obtaining
marihuana.  There is no person authorized to distribute raw
marihuana.  Mr. Rowsell testified that, while it would be open to
a physician to prescribe marihuana, the Canadian government would
not look favourably upon a physician who did so and, in any
event, no pharmacy could legally fill the prescription.
[59] Mr. Rowsell gave evidence as to the method by which a new
drug may be approved by the Bureau.  A protocol to expedite the
availability of new drugs formerly called the Emergency Drug
Release Programme, now the Compassionate Use Programme, by which
certain drugs were made available for the treatment of AIDS,
would not be available since the programme does not apply to
narcotics.5
[60] The other alternatives were for a person, usually a large
drug company, to apply for a Drug Identification Number (D.I.N.)
or for a physician to request permission to conduct a clinical
trial.  It is fair to say that neither alternative was a
practical solution for Parker.  Even the less costly clinical
trial method would still require expenditure of hundreds of
thousands of dollars and depend on a clinician willing to set up
a clinical trial and the respondent then being selected as one of
the participants.  No one has applied for a D.I.N. to market
marihuana and apparently no one has applied to do a clinical
study of marihuana.  Since marihuana does not have a D.I.N., it
is not approved for dispensing by pharmacists.  Other more
dangerous narcotics such as heroin can be prescribed by a
physician and dispensed by a pharmacy, albeit heroin can only be
used in a hospital setting.  The Bureau has not investigated the
potential medicinal benefits of marihuana.
[61] At trial, neither Mr. Rowsell nor anyone else mentioned the
possibility of an exemption from the marihuana prohibition
through an application for a ministerial exemption under s. 56 of
the Controlled Drugs and Substances Act.  The trial judge
accordingly made no findings in relation to that section.

(b)  The evidence on appeal
[62] Parker filed an affidavit from Eugene Oscapella, a director
of the Canadian Foundation for Drug Policy.  Mr. Oscapella had
testified at the Clay trial.  In the affidavit, he provides
information about Health Canada’s use of the exemption in s. 56
of the Controlled Drugs and Substances Act.  In May 1999, Health
Canada released the Interim Guidance Document that outlines the
process for Canadians to obtain exemptions under s. 56.  This
document is attached as an exhibit to Mr. Oscapella’s affidavit.
Among other things, the applicant must identify:
	[The] name and address of the fabricator or 
	distributor who is licensed under CDSA, the 
	Narcotic Control Regulations and the Food and 
	Drug Regulations and who has the capacity to 
	fabricate and distribute in accordance with 
	international drug treaties, if applicable.
[63] Mr. Oscapella also attached a recent government document
entitled “Marijuana for Medicinal Purposes:  A Status Report”.
This report states that “the safety and efficacy of marijuana as
a medicine has not been demonstrated in any country of the world”
and therefore the first step is to gather scientific information
and conduct clinical trials.  The document states that the
government is considering a proposal from a pharmaceutical
company to conduct trials on inhaled cannabinoids.  There was no
indication when and if this proposal would be approved.  The
document also refers to the Compassionate Use Programme, but
points out that there is no “licit, licensed, non-governmental
supplier anywhere from whom research-grade marijuana can be
obtained” under that programme.  This document indicates that as
of June 3, 1999, just over 30 requests have been made under s. 56
for marihuana for medical purposes.  According to the document:
	After all of the required information has been 
	submitted, the Department aims to review the 
	request within 15 working days.  The Minister’s 
	decision to exercise discretion for each case 
	is made in the context of the recommendation 
	formulated as part of the review and the 
	circumstances of each individual applicant.
[64] In addition, the document indicates that Health Canada,
“will determine, on a case-by-case basis, the necessity of
imposing other terms and conditions, particularly for use within
the research context”.
[65] According to Mr. Oscapella, the Minister of Health had
granted two cannabis exemptions under s. 56.  It was unclear what
had happened to the other applicants or the 15 working day
guideline for processing applications, except that the Minister
may have required further information, notwithstanding that
according to Health Canada 15 applications were said to have been
sufficiently well-detailed to be assessed as of August 26, 1999.
Mr. Oscapella was cross-examined on his affidavit on September
21, 1999.  He was told by officials at Health Canada that as of
that date no further exemptions had been granted by the Minister.
[66] The day prior to the hearing of this appeal, the Minister
issued a press release concerning the granting of further s. 56
exemptions.  At the opening of the appeal we asked Crown counsel
if he wished to apply for an adjournment to file fresh evidence
on the operation of s. 56.  He declined the invitation.
THE TRIAL JUDGE’S FINDINGS ON THE LAW
[67] The trial judge held that Parker had shown that there was a
risk of deprivation of his right to life, liberty or security of
the person by the marihuana prohibition.  Most obviously, there
was the risk of deprivation of liberty should Parker be convicted
of an offence under the former Narcotic Control Act or the
Controlled Drugs and Substances Act.  There was an additional
risk of injury or death to Parker because he would not have
access to marihuana in the prison setting to prevent seizures.
Thus, prison would be a particularly dangerous place for Parker
because of his medical condition.  The anxiety about worrying
about a seizure would “be a cruel and unusual punishment in
itself”.  In terms of s. 7, jail not only would result in a
deprivation of liberty, but also would put his life at risk and
threaten the security of his person.
[68] The trial judge was satisfied that the possibility of
Parker’s obtaining Marinol in prison was not an answer since he
was satisfied on the evidence that synthetic THC was not
effective for Parker and he would need to receive CBD.  He was
also of the view that due process through the trial procedure did
not afford Parker sufficient protection.  Barring a medical
discovery, Parker has a chronic need for marihuana and is
therefore subject to arrest, search and seizure, and detention
every day.  The fact that he might succeed in defending a
prosecution on the basis of a necessity defence, as he had in
1987, was no answer since each prosecution entailed financial
cost, stress, uncertainty, arrest and loss of his stock of
marihuana and marihuana plants thus interfering with his security
of the person.  The evidence established that Parker was
traumatized by the police raids on his home.
[69] The trial judge was satisfied that the deprivation of life,
liberty or security of the person was contrary to the principles
of fundamental justice.  He held that it is an aspect of
fundamental justice that a person “possess an autonomy to make
decisions of personal importance”, including decisions as to
health.  Serious decisions regarding the management of illness
and medical disability in consultation with a physician fall
within this area of personal autonomy.  Parker has made such a
decision respecting his use of marihuana, the use of marihuana
has allowed him to control his illness with some success and his
decision has been supported by his physicians over the years.
The trial judge made this critical finding:
	I find he has established that this control is 
	best achieved through a combination of prescribed 
	medications and the smoking of marihuana.  For 
	this Applicant/Accused to be deprived of his 
	smokable marihuana is to be deprived of something 
	of fundamental personal importance.
[70] The trial judge found that the marihuana prohibition is
overbroad because the legislation does not provide a procedural
process for an exemption for an individual in Parker’s
circumstances.  It does not accord with fundamental justice to
criminalize a person suffering a serious chronic medical
disability for possessing a vitally helpful substance not legally
available to him in Canada.  While the purpose of the Narcotic
Control Act and the Controlled Drugs and Substances Act is to
safeguard the health of Canadians, that legislation has the
dramatically opposite effect for Parker.  The legislation
prevents him from having access to a relatively safe drug that
has demonstrated therapeutic benefit to him.
[71] In response to the Crown’s argument that a continued
marihuana prohibition was required so that Canada fulfilled its
international obligations, the trial judge pointed out that, for
example, the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances provides that the
measures adopted by the contracting states to criminalize
marihuana possession and prevent illicit cultivation must be
“necessary” and respect fundamental human rights.
[72] The Crown conceded before the trial judge that if he found a
violation of Parker’s rights under s. 7, the violation could not
be saved by s. 1 of the Charter.
[73] The trial judge adopted the following remedy.  He concluded
that rather than striking down the prohibition the proper remedy
was to read in, pursuant to s. 52 of the Constitution Act, 1982,
an exemption for “persons possessing or cultivating Cannabis
(marihuana) for their personal medically approved use”.  This
exemption applied to the marihuana possession and cultivation
provisions of the former Narcotic Control Act and the Controlled
Drugs and Substances Act, being ss. 3(1) and 6(1) of the former
Act and ss. 4(1) and 7(1) of the latter.  Parker was also
entitled to the personal remedy, under s. 24(1) of the Charter of
Rights, of a stay of proceedings of the charges laid against him
and the return of the plants seized during the September 1997
arrest.
THE ISSUES
[74] The Crown makes the following arguments:
	1. The conduct in respect of which Parker seeks 
	Charter protection is outside the scope of s. 7 
	of the Charter.
	2. The trial judge erred in finding that Parker 
	had no legal alternative to control his epilepsy.  
	This submission identifies two errors:  (i) that 
	Parker had not shown that Marinol could not treat 
	his epilepsy and (ii) that Parker had not shown
        that if he maintained a proper regime of 
	conventional medication and regular attendance at 
	a specialist he could not control his epilepsy.  
	The Crown argues that the trial judge erred by 
	reversing the burden of proof by requiring it to 
	establish that Parker’s rights were not infringed 
	and that any infringement was consistent with the
        principles of fundamental justice.

        3. The trial judge erred in finding the legislation 
	was overbroad because there was a possibility for 
	legally obtaining marihuana. The fact that no one 
	had taken the steps to have marihuana approved through
        the legal procedure set out in the legislation did 
	not render the legislation unconstitutional.

        4. The trial judge erred in finding that the 
	Controlled Drugs and Substances Act violated 
	Parker’s rights because Parker could have applied 
	for an exemption under s. 56 of the Act but had 
	failed to do so and that the process for granting 
	exemptions under s. 56 conforms with the 
	principles of fundamental justice.

        5. Assuming there was a breach of s. 7, the trial 
	judge erred in his choice of remedy.
ANALYSIS

Introduction
[75] In the course of these reasons, I intend to address the
arguments made by the Crown.  However, it will be more convenient
to deal with those arguments through an analysis that is
structured around s. 7.  Accordingly, I will consider these
issues under the following headings.  These headings should be
understood as dealing with the therapeutic use of marihuana, not
the broader claims dealt with in the Clay case.
1.  The context
2.  The right to liberty implicated by the marihuana 
prohibition
3.  The right to security of the person implicated 
by the marihuana prohibition
4.  Does the marihuana prohibition deprive Parker 
or persons similarly situated of their rights to 
liberty and security of the person?
5.  The principles of fundamental justice and the 
right to liberty and security of the person
6.  Is there a different analysis of fundamental 
justice under the Controlled Drugs and Substances 
Act?
7.  Can any violations be saved by s. 1?
8.  The appropriate remedy for any violations          
1.   The context
[76] This case depends upon the interpretation and application of
s. 7 of the Charter:
	7. Everyone 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.
[77] In the companion case of R. v. Clay, I have already dealt
with the submission that, broadly speaking, the marihuana
prohibition violates s. 7 because it criminalizes people who have
done nothing wrong.  This case raises the narrower issue of the
impact upon individuals claiming a need for marihuana as a matter
of medical necessity, not recreational use.
[78] This aspect of the case raises an issue akin to the standing
issue that I have touched upon in the Clay case.  The Crown’s
approach to this appeal was to try to demonstrate that as a
matter of fact Parker did not need marihuana to control his
epilepsy.  I deal with that issue below.  However, it is also
open to Parker to challenge the validity of the legislation on
the basis that it was overbroad or unconstitutional in some other
way in its application to other persons.  The Crown respondent
appeared to concede this in the Clay appeal.  In any event, that
conclusion follows from the decisions of the Supreme Court of
Canada in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 and R.
v. Morgentaler.  In both cases, the accused were held to have
standing to challenge the law under which they were charged
although the alleged infringement of the Charter concerned the
rights of some other person.
[79] The decision of the Supreme Court of Canada in Morgentaler
is of particular assistance because the issues in that case were
similar to the issues here.  The accused physicians relied upon
s. 7 of the Charter to challenge a criminal offence based upon
the interference with the health of pregnant women seeking
abortions.  In his dissenting reasons at p. 133, McIntryre J.
suggested that the question of the s. 7 violation was
hypothetical since, “[t]here is no female person involved in the
case who has been denied a therapeutic abortion”.  However,
Dickson C.J.C. was satisfied that the accused physicians had
standing.  As he said at p. 63:
	As an aside, I should note that the appellants 
	have standing to challenge an unconstitutional 
	law if they are liable to conviction for an 
	offence under that law even though the 
	unconstitutional effects are not directed at the 
	appellants per se: R. v. Big M Drug Mart Ltd., 
	at p. 313. The standing of the appellants was 
	not challenged by the Crown.
[80] Therefore, it is open to Parker to challenge the validity of
the marihuana prohibition not only on the basis that it infringes
his s. 7 rights because of his particular illness, but that it
also infringes the rights of others suffering other illnesses.
[81] The trial judge identified a number of ways in which
Parker’s liberty and security interests were affected by the
marihuana prohibition.  In one sense, it would have been
sufficient to identify the clearest of those infringements, the
possibility of imprisonment upon conviction for the offence.
This interference with Parker’s liberty interest would
conceivably be sufficient to require a determination of whether
the deprivation was in accordance with the principles of
fundamental justice.
[82] However, in my view, this would not adequately capture the
defects in the legislation and would fail to come to grips with
the context in which the issue arises.  As Wilson J. said in
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R.
1326 at 1355-56 a right or freedom may have different meanings in
different contexts.  “The contextual approach attempts to bring
into sharp relief the aspect of the right or freedom which is
truly at stake in the case as well as the relevant aspects of any
values in competition with it.”  Thus, the importance of the
right or freedom must be assessed in context rather than in the
abstract and its purpose must be ascertained in context.
[83] Although Wilson J. was particularly concerned about the
importance of context for the s. 1 analysis, context is important
for analyzing a right, such as s. 7, that to some extent contains
its own balancing test and which may or may not be amenable to
further balancing under s. 1.  The dominant aspect of the context
in this case is the claim by Parker and other patients that they
require access to marihuana for medical reasons.  They do not,
like the appellant in the Clay case, assert a desire for
marihuana for recreational use.  Parker does not claim a right to
use marihuana on the basis of some kind of abstract notion of
personal autonomy.  The validity of the marihuana prohibition
must be assessed in that particular context.  The context here is
not simply that the marihuana prohibition exposes Parker, like
all other users and growers, to criminal prosecution and possible
loss of liberty.  Rather, Parker alleges that the prohibition
interferes with his health and therefore his security interest as
well as his liberty interest.
[84] Related to this aspect of the case is that Parker does not
seek to avoid the marihuana prohibition to assist in the
treatment of some mild discomfort.  If it is not properly
controlled, his seizure activity can be life-threatening.
Further, the evidence concerning the use of marihuana to assist
in the treatment of other illnesses centred on patients with
profound symptoms:  AIDS patients suffering from wasting disease,
cancer patients receiving chemotherapy and patients suffering
from glaucoma, to name just a few.
[85] Having said that, it must be acknowledged that the scope of
the liberty and security interests protected by s. 7 is still a
matter of considerable debate.  See for example, New Brunswick
(Minister of Health and Community Services) v. G. (J.) (1999),
177 D.L.R. (4th) 124 (S.C.C.), per Lamer C.J.C. at 146.  As I
will explain, it is important for the purposes of this case that,
although Parker raises important concerns about health and access
to drugs for therapeutic purposes, those concerns are raised in
the criminal context.
[86] As framed by the appellant, the question of whether Parker’s
conduct attracts s. 7 protection is intertwined with its
assertion that Parker had a legal alternative to marihuana,
either Marinol or better management through conventional
medication, and thus his choice to smoke marihuana is nothing
more than a personal preference.  Thus, the Crown asserts that
the marihuana prohibition does not affect Parker’s physical or
mental integrity in any fundamental way and so his security of
the person is not engaged.
[87] I cannot agree with this characterization of the issues for
a number of reasons.  I am satisfied that the trial judge had
ample evidence from which he could conclude that Parker was not
asserting a mere preference for an illegal treatment over a legal
one.  I will deal with that below.  The Crown’s focus on the
evidence respecting Parker also fails to come to grips with the
compelling evidence placed before the trial judge that marihuana
is of therapeutic benefit to other patients.
2.  The right to liberty implicated by the marihuana prohibition
[88] The leading decision on the Charter implications where
medical treatment and the criminal law intersect is R. v.
Morgentaler.  In that case, three judges wrote for the five-
person majority, each adopting different reasons for finding that
the abortion provisions of the Criminal Code infringed the
guarantee to liberty or security under s. 7 of the Charter.
Wilson J. took the broadest view as she found that the decision
of a woman to terminate her pregnancy is protected by the right
to liberty.  She held, at p. 166, that the right to liberty,
“properly construed, grants the individual a degree of autonomy
in making decisions of fundamental personal importance” and
again, at p. 171, that the right to liberty “guarantees to every
individual a degree of personal autonomy over important decisions
intimately affecting their private lives”.  The woman’s decision
to terminate a pregnancy is within this protected zone of
personal autonomy, since, as she wrote at p. 171, it “will have
profound psychological, economic and social consequences” for
her.  Dickson C.J.C., writing for himself and Lamer J., found it
unnecessary to consider this aspect of liberty since he preferred
to rest his decision on the right to security of the person.
Beetz J., writing for himself and Estey J., also based his
decision on security of the person.  He noted, however, at p. 112
in his discussion of the principles of fundamental justice that
certain aspects of the law that he found did comport with
fundamental justice, such as a second opinion as to the need for
the abortion, “would need to be reevaluated if a right of access
to abortion is founded upon the right to ‘liberty’ in s. 7 of the
Charter”.
[89] In subsequent cases, a majority of the Supreme Court of
Canada has accepted that liberty includes a degree of personal
autonomy over fundamental personal decisions.  The most
restrictive view is that of Lamer C.J.C., and summarized in his
reasons in B. (R.) v. Children’s Aid Society of Metropolitan
Toronto, [1995] 1 S.C.R. 315 at 341: “the principle that must be
adopted is that generally speaking s. 7 was not designed to
protect even fundamental individual freedoms if those freedoms
have no connection with the physical dimension of the concept of
‘liberty’”.  He reiterated this view in his reasons in New
Brunswick (Minister of Health and Community Services) v. G. (J.).
Also see his earlier reasons in Reference Re ss. 193 and
195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123,
especially at 1174-75.
[90] The broader view was adopted by La Forest J., writing for
himself, L’Heureux-Dubé, Gonthier and McLachlin JJ. on this issue
in B. (R.) at p. 368:
	Freedom of the individual to do what he or she wishes 
	must, in any organized society, be subjected to 
	numerous constraints for the common good. The state 
	undoubtedly has the right to impose many types of 
	restraints on individual behaviour, and not all 
	limitations will attract Charter scrutiny. On the 
	other hand, liberty does not mean mere freedom from 
	physical restraint. In a free and democratic society, 
	the individual must be left room for personal 
	autonomy to live his or her own life and to make
        decisions that are of fundamental personal importance.  
	[Emphasis added.]
[91] L’Heureux-Dubé J., writing for herself and Gonthier and
McLachlin JJ. in G. (J.) at para. 117, again adopted this
position in the context of a mother’s right to legal
representation at a hearing that would give the Minister of
Health and Community Services custody of her children for a
further six months.  She also noted that Bastarache J.A., as he
then was, had taken a broader approach in his dissenting opinion
in the Court of Appeal.  Bastarache J.A. wrote as follows at
(1997), 145 D.L.R. (4th) 349 (N.B.C.A.) at 368:
	No clear majority exists on the question of the
        applicability of s. 7 to parental control. I have 
	already indicated that I personally favor a more 
	generous interpretation of the "liberty" interest 
	than that proposed by Chief Justice Lamer. I would 
	however restrict the scope of the "liberty" 
	interest in s. 7 to essential personal rights that 
	are inherent to the individual and consistent with 
	the essential values of our society, as suggested 
	by La Forest J. at p. 389 [in B. (R.) v. Children’s 
	Aid Society of Metropolitan Toronto]. I would hold
        that this is a case where a close analogy can be 
	made with the application of s. 7 to the criminal 
	law and where an extension of the traditional 
	interpretation of the "liberty" interest advocated 
	by Lamer C.J. is required.
[92] Accordingly, I believe that I am justified in considering
Parker’s liberty interest in at least two ways.  First, the
threat of criminal prosecution and possible imprisonment itself
amounts to a risk of deprivation of liberty and therefore must
accord with the principles of fundamental justice.  Second, as
this case arises in the criminal law context (in that the state
seeks to limit a person’s choice of treatment through threat of
criminal prosecution), liberty includes the right to make
decisions of fundamental personal importance.  Deprivation of
this right must also accord with the principles of fundamental
justice.  I have little difficulty in concluding that the choice
of medication to alleviate the effects of an illness with life-
threatening consequences is such a decision.  Below, I will
discuss the principles of fundamental justice that would justify
state interference with that choice.
3.  The right to security of the person implicated by the 
marihuana prohibition
[93] This case also clearly implicates the right to security of
the person of Parker and others who claim to need marihuana for
therapeutic purposes.  In Morgentaler, Dickson C.J.C. held at p.
56 that “state interference with bodily integrity and serious
state-imposed psychological stress, at least in the criminal law
context, constitute a breach of security of the person”.  Beetz
J. held in the same case at p. 90 that security of the person
“must include a right to access to medical treatment for a
condition representing a danger to life or health without fear of
criminal sanction”.  Wilson J. held at p. 173 that the security
of the person guarantee protects “both the physical and
psychological integrity of the individual”.
[94] In R. v. Monney (1999), 133 C.C.C. (3d) 129 (S.C.C.) at 156,
Iacobucci J. held, relying upon Singh v. Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177, that “state
action which has the likely effect of impairing a person’s health
engages the fundamental right under s. 7 to security of the
person”.
[95] In G. (J), Lamer C.J.C. writing for all members of the court
on this issue held, at p. 147 that, “the right to security of the
person does not protect the individual from the ordinary stresses
and anxieties that a person of reasonable sensibility would
suffer as a result of government action”.  However, he held at p.
147 that it does protect against “serious and profound effect on
a person’s psychological integrity”.  The effects of the state
interference “must be assessed objectively, with a view to their
impact on the psychological integrity of a person of reasonable
sensibility” (at p. 147).
[96] The Supreme Court also had to deal with s. 7 in the context
of the criminal law and medical treatment in Rodriguez v. British
Columbia (Attorney General), a case concerning the validity of
the assisted suicide provisions of the Criminal Code and their
impact on a terminally ill woman.  Sopinka J., speaking for the
majority of the court at pp. 587-88, summarized security of the
person in that context as follows:
In my view, then, the judgments of this Court in 
Morgentaler can be seen to encompass a notion of 
personal autonomy involving, at the very least, 
control over one's bodily integrity free from state 
interference and freedom from state-imposed 
psychological and emotional stress. In Reference 
re: ss. 193 and 195.1(1)(c) of Criminal Code (Man.), 
supra, Lamer J. (as he then was) also expressed this 
view, stating at p. 106 that "[s]ection 7 is also
implicated when the state restricts individuals' 
security of the person by interfering with, or 
removing from them, control over their physical or 
mental integrity". There is no question, then, that 
personal autonomy, at least with respect to the right 
to make choices concerning one's own body, control 
over one's physical and psychological integrity, and 
basic human dignity are encompassed within security 
of the person, at least to the extent of freedom 
from criminal prohibitions which interfere with these.
[Emphasis added.]
[97] In view of these very broad statements, I conclude that
deprivation by means of a criminal sanction6 of access to
medication reasonably required for the treatment of a medical
condition that threatens life or health constitutes a deprivation
of security of the person.  Such a deprivation fits easily within
any of the above statements.  It falls squarely  within   the
holding   by  Beetz J.  in   Morgentaler.     Depriving  a
patient of medication in such circumstances, through a criminal 
sanction, also constitutes a serious interference with both 
physical and psychological integrity.
4.  Does the marihuana prohibition deprive Parker or persons 
similarly situated of their rights to liberty and security of 
the person?

(i)  Introduction
[98] In my view, Parker demonstrated at trial that the
prohibition on the possession and cultivation of marihuana for
personal use to treat his epilepsy deprived him of his rights to
liberty and security of the person.
[99] The appellant argues that the trial judge’s findings are
tainted by error because he placed the burden on the Crown to
prove that there was no deprivation of his rights.  This
submission appears to be based, in part, on a statement by the
trial judge that he could not “accept” the Crown’s submissions
that Parker failed to seek sufficient medical attention, failed
to request a prescription for Marinol and failed to have his
blood levels monitored on a regular basis.  The trial judge’s
reasons for judgment, read as a whole, do not disclose any error
as to the burden of proof.  The trial judge began his analysis of
s. 7 by noting that the onus to establish the violation rested
with Parker.  He then went on to make the factual and legal
findings I have set out above.  I have undertaken the factual
review to also show that the trial judge’s findings are supported
by the evidence.  It remains to situate those findings within the
legal analysis of liberty and security of the person.
[100]     Before doing so, I would make this comment.  Much of
the Crown’s submissions in this court were an attempt to isolate
various parts of the evidence.  Thus, Mr. Wilson referred to
individual pieces of the expert evidence and contrasted them with
Parker’s evidence.  As I have indicated, he placed a great deal
of weight on the ARF study to demonstrate that Parker had a legal
alternative.  However, the trial judge was required to consider
all of the evidence.  He had the benefit of the testimony of
Parker and the other witnesses who gave viva voce testimony.
That evidence established to the trial judge’s satisfaction that
Marinol was not a viable alternative for Parker and that he has
received a clear benefit from smoking marihuana that is
unavailable to him through conventional treatment alone.  These
factual findings, for which there is support in the evidence, are
entitled to deference by this court and I would not interfere
with them.
(ii) Right to liberty
[101]     I agree with the trial judge that the onus of
establishing a violation of the right to liberty is easily
satisfied because upon conviction Parker is liable to
imprisonment.  The trial judge went on to hold that the impact of
incarceration was particularly severe for Parker since, deprived
of access to marihuana in the jail setting, he was at a real risk
of death or injury from seizures.  Since any form of
incarceration is sufficient to trigger this aspect of the right
to liberty, I do not think it necessary or advisable to attempt
to quantify the severity of the deprivation.  Like the trial
judge, I would consider this collateral consequence of
deprivation of liberty, if necessary, as an aspect of security of
the person.
[102]     In my view, Parker has also established that the
marihuana prohibition infringed the second aspect of liberty that
I have identified—the right to make decisions that are of
fundamental personal importance.  As I have stated, the choice of
medication to alleviate the effects of an illness with life-
threatening consequences is a decision of fundamental personal
importance.  In my view, it ranks with the right to choose
whether to take mind-altering psychotropic drugs for treatment of
mental illness, a right that Robins J.A. ranked as “fundamental
and deserving of the highest order of protection” in Fleming v.
Reid (1991), 4 O.R. (3d) 74 (Ont. C.A.) at 88.
[103]     To intrude into that decision-making process through
the threat of criminal prosecution is a serious deprivation of
liberty.  For the purposes of this appeal, it is unnecessary to
decide whether the decision-making must meet some objective
standard to fall within this aspect of liberty.  The evidence
established that Parker’s choice was a reasonable one.  He has
lived with this illness for many years.  He has tried to treat
the illness through highly invasive surgery and continues to take
conventional medication notwithstanding the significant side
effects.  He has studied his illness, he has studied the effects
of marihuana, and he has produced a reasonable explanation for
why Marinol is not an effective form of treatment.  He has found
relief from some of the debilitating effects of the illness
through smoking marihuana, a drug that, aside from the
psychotropic effect, has limited proven side effects in a mature
adult.  That drug helps protect him from the serious consequences
of seizures—consequences that could threaten his life and heath.
In those circumstances, a court should not be too quick to
stigmatize his choice as unreasonable.
[104]     In view of my conclusion with respect to Parker’s
liberty rights, it is not strictly necessary to consider the
situation of other persons seeking to use marihuana to alleviate
their symptoms from other serious, even terminal, disease.
Suffice it to say that Parker presented sufficient evidence that
marihuana is a reasonable choice for those persons that I would
have found that their liberty interests are infringed by the
marihuana prohibition.

(iii)   Right to security of the person
[105]     In his reasons, the trial judge focused on the impact
of the criminal justice system in considering Parker’s assertion
that he was deprived of his security of the person.  As I
mentioned, he noted the serious risk to Parker’s health if he
were incarcerated without access to marihuana.  He also noted the
psychological stress from the police raids upon his home, the
questioning, the arrest and the ultimate loss of his marihuana.
I would accept that protection from some of these stresses may
constitute an aspect of security of the person.  However,
concentrating only on these effects may miss the context in which
this case arises and lead to a narrow, solely procedural, view of
the principles of fundamental justice.  For example, the powers
to search and to arrest upon reasonable and probable grounds have
generally been considered to accord with the principles of
fundamental justice.  The exercise of those powers will have a
different impact depending upon the individual.  However, as of
yet, it has not been suggested that the principles of fundamental
justice require distinctions to be made depending on the personal
make-up of the suspect.  Similarly, if this case were only about
criminal procedure, the Crown could argue that the right to a
fair trial, including access to the common law necessity defence,
could provide Parker with fundamental justice.  Accordingly, I
would prefer to rest my analysis upon security of the person as
it was explained in Morgentaler, Rodriguez and the other cases I
have discussed above.
[106]     In Morgentaler, Beetz J. summarized the right to
security of the person as a right to access to medical treatment
for a condition representing a danger to life or health without
fear of criminal sanction.  As he said at p. 90:
          Generally speaking, the constitutional right
	  to security of the person must include some
	  protection from state interference when a
	  person's life or health is in danger. The
	  Charter does not, needless to say, protect
	  men and women from even the most serious
	  misfortunes of nature. Section 7 cannot be
	  invoked simply because a person's life or
	  health is in danger. The state can obviously
	  not be said to have violated, for example, a
	  pregnant woman's security of the person simply
	  on the basis that her pregnancy in and of
	  itself represents a danger to her life or
          health. There must be state intervention for
	  "security of the person" in s. 7 to be violated.

          If a rule of criminal law precludes a
          person from obtaining appropriate medical
          treatment when his or her life or health is
          in danger, then the state has intervened and
          this intervention constitutes a violation of
          that man's or that woman's security of the
          person. “Security of the person” must include
          a right of access to medical treatment for a
          condition representing a danger to life or
          health without fear of criminal sanction. If
          an Act of Parliament forces a person whose
          life or health is in danger to choose
          between, on the one hand, the commission of a
          crime to obtain effective and timely medical
          treatment and, on the other hand, inadequate
          treatment or no treatment at all, the right
          to security of the person has been violated.
          [Emphasis added.]
[107]     That holding applies in this case.  The state has not
violated Parker’s rights simply because epilepsy in and of itself
represents a danger to his life or health.  However, to prevent
his accessing a treatment by threat of criminal sanction
constitutes a deprivation of his security of the person.  Based
on the evidence, the marihuana laws force Parker to choose
between commission of a crime to obtain effective medical
treatment and inadequate treatment.
[108]     In his reasons in Morgentaler, Dickson C.J.C. described
the infringement of security of the person in these terms at pp.
56-7:
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 added.]
[109]     The same may be said of the marihuana 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 marihuana 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 marihuana.  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 marihuana 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 marihuana to treat his condition by
threat of criminal prosecution constitutes an interference with
his physical and psychological integrity.
[111]     Accordingly, Parker established that the marihuana
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 marihuana to treat their illnesses.  However, as with the
right to liberty I would have found that Parker established that
the marihuana 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.
5.   The principles of fundamental justice

(i)  Introduction
[112]     In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at
503, Lamer J. held that the principles of fundamental justice
“are to be found in the basic tenets of our legal system”.
According to Sopinka J. in Rodriguez at p. 591, they must not be
so broad “as to be no more than vague generalizations about what
our society considers to be ethical or moral”.  This is an
important qualification because it would be too easy to resolve
this case simply by imposing a moral or ethical standard from one
side or the other.  Many would consider it immoral to keep
medicine from a patient with a serious illness.  Others might
consider it unethical to expose anyone to the potential harm from
a drug where the expert opinion is unanimous that further
research is required.  Therefore, to quote Sopinka J. in
Rodriguez at p. 591, the principles of fundamental justice “must
be capable of being identified with some precision and applied to
situations in a manner which yields an understandable result”.
They must be “legal principles”.
[113]     In Rodriguez, Sopinka J. identified a principle of
fundamental justice that, in my view, has particular application
to this case.  He held at p. 594 that, “Where the deprivation of
the right in question does little or nothing to enhance the
state's interest (whatever it may be), it seems to me that a
breach of fundamental justice will be made out, as the
individual's rights will have been deprived for no valid
purpose.”  Thus, in determining whether there has been a breach
of the principles of fundamental justice, it is necessary to
consider the state interest.  As McLachlin J. said in Cunningham
v. Canada, [1993] 2 S.C.R. 143 at 151-52:
The principles of fundamental justice are concerned 
not only with the interest of the person who claims 
his liberty has been limited, but with the 
protection of society.  Fundamental justice requires 
that a fair balance be struck between these interests,
both substantively and procedurally…7
[114]     In Rodriguez, at p. 595, Sopinka J. characterized the
issue as “whether the blanket prohibition on assisted suicide is
arbitrary or unfair in that it is unrelated to the state's
interest in protecting the vulnerable, and that it lacks a
foundation in the legal tradition and societal beliefs which are
said to be represented by the prohibition”.  He then engaged in a
comprehensive review of the history of criminalization of
assisted suicide, the common-law right to refuse medical care and
a review of legislation in other countries in order to identify
the state interest, the nature of the legal tradition and
societal beliefs at stake.  From this analysis, he was able to
determine whether the deprivation of Ms. Rodriguez’s rights
enhanced the state interests.
[115]     In Morgentaler, Dickson C.J.C. identified a number of
procedural deficiencies in the therapeutic abortion provisions
that may assist in understanding the principles of fundamental
justice that apply in this case.  The therapeutic abortion
committee could issue a certificate to permit a therapeutic
abortion if the continuation of the pregnancy would be likely to
endanger the life or “health” of the woman.  Dickson C.J.C. held
at p. 69 that the absence of any clear legal standard to be
applied by the committee in making the determination as to
whether the continuation of the pregnancy would endanger the
health of the woman was a “serious procedural flaw”.  After
reviewing several other problems with the legislative scheme that
contributed to unnecessary delay, at pp. 72-3 he concluded that
while Parliament must be given latitude to design an appropriate
procedural structure, if that structure is “so manifestly unfair,
having regard to the decisions it is called upon to make, as to
violate the principles of fundamental justice” [emphasis added by
Dickson C.J.C.], that structure must be struck down.  This was
the problem with the therapeutic abortion provisions of the Code.
It contained so many potential barriers to its own operation that
“the defence it creates will in many circumstances be practically
unavailable to women who would prima facie qualify for the
defence, or at least would force such women to travel great
distances at substantial expense and inconvenience in order to
benefit from a defence that is held out to be generally
available”.
[116]     While Beetz J. did not agree that the health criterion
created an unworkable standard, at pp. 109-10 he too found a
breach of the principles of fundamental justice in the nature of
the administrative structure mandated by the legislation.
Adopting the same test of “so manifestly unfair, having regard to
the decisions it is called upon to make”,8 he found  that  the
scheme was made up of “unnecessary rules,  which result in an
additional risk to the health of pregnant women”.  It was thus 
manifestly unfair and did not conform to the principles of 
fundamental justice.  This unfairness was manifested in two 
ways: some of the procedural requirements had no connection 
whatsoever with Parliament's objectives and others were manifestly 
unfair because they were not necessary to assure that the 
objectives were met.
[117]     To summarize, a brief review of the case law where the
criminal law intersects with medical treatment discloses at least
these principles of fundamental justice:
(i)   The principles of fundamental justice are 
breached where the deprivation of the right in 
question does little or nothing to enhance the 
state's interest.
(ii)  A blanket prohibition will be considered 
arbitrary or unfair and thus in breach of the 
principles of fundamental justice if it is 
unrelated to the state's interest in enacting 
the prohibition, and if it lacks a foundation 
in the legal tradition and societal beliefs that 
are said to be represented by the prohibition.
(iii) The absence of a clear legal standard may 
contribute to a violation of fundamental justice.
(iv)  If a statutory defence contains so many 
potential barriers to its own operation that the 
defence it creates will in many circumstances be 
practically unavailable to persons who would prima 
facie qualify for the defence, it will be found to 
violate the principles of fundamental justice.
(v)   An administrative structure made up of 
unnecessary rules, which result in an additional 
risk to the health of the person, is manifestly 
unfair and does not conform to the principles of 
fundamental justice.
[118]     Before turning to the application of these principles,
I wish to make a few comments about the relationship between s. 1
and s. 7 of the Charter.  There was some doubt whether a
violation of s. 7 could be upheld as a reasonable limit under s.
1, absent extraordinary circumstances such as war.  However, in
several recent cases the Supreme Court of Canada has signalled
that it may be possible to apply s. 1 in less exceptional
circumstances.  For example, in R. v. Mills (1999), 139 C.C.C.
(3d) 321 (S.C.C.) at 359-60 McLachlin and Iacobucci JJ. writing
for the majority held as follows:
[65] It is also important to distinguish between 
balancing the principles of fundamental justice 
under s. 7 and balancing interests under s. 1 of 
the Charter. The s. 1 jurisprudence that has 
developed in this Court is in many respects quite 
similar to the balancing process mandated by s. 7. 
As McLachlin J. stated for the Court in Cunningham 
v. Canada, [1993] 2 S.C.R. 143 at p. 152, 80 C.C.C. 
(3d) 492, regarding the latter: "The . . . question 
is whether, from a substantive point of view, the 
change in the law strikes the right balance between 
the accused's interests and the interests of 
society." Much the same could be said regarding the 
central question posed by s. 1.
[66] However, there are several important differences 
between the balancing exercises under ss. 1 and 7. 
The most important difference is that the issue under
s. 7 is the delineation of the boundaries of the 
rights in question whereas under s. 1 the question is 
whether the violation of these boundaries may be 
justified. The different role played by ss. 1 and 7 
also has important implications regarding which party 
bears the burden of proof. If interests are balanced
under s. 7 then it is the rights claimant who bears 
the burden of proving that the balance struck by the 
impugned legislation violates s. 7. If interests are 
balanced under s. 1 then it is the state that bears the 
burden of justifying the infringement of the Charter
rights.
[67] Because of these differences, the nature of the 
issues and interests to be balanced is not the same 
under the two sections. As Lamer J. (as he then was) 
stated in Re B.C. Motor Vehicle Act, supra, at p.
503: "the principles of fundamental justice are to 
be found in the basic tenets of the legal system." 
In contrast, s. 1 is concerned with the values 
underlying a free and democratic society, which are 
broader in nature. In R. v. Oakes, [1986] 1 S.C.R. 
103, 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200,
Dickson C.J. stated, at p. 136, that these values 
and principles "embody, to name but a few, respect 
for the inherent dignity of the human person, 
commitment to social justice and equality, 
accommodation of a wide variety of beliefs, respect 
for cultural and group identity, and faith in social 
and political institutions which enhance the 
participation of individuals and groups in society". 
In R. v. Keegstra, [1990] 3 S.C.R. 697 at p. 737,
61 C.C.C. (3d) 1, Dickson C.J. described such
values and principles as "numerous, covering the 
guarantees enumerated in the Charter and more".  
[Emphasis added.]
[119]     Thus, the difference between the s. 1 and the s. 7
analysis is important not only because of the different interests
to be considered but also because of the shift in the burden of
proof.  For example, the Crown argued that in considering whether
the law struck the right balance between the accused’s interests
and the interests of the state under s. 7, the court should
consider Canada’s international treaty obligations.  It may be,
however, that such interests are more properly a matter for
consideration under s. 1, in which case the Crown would bear the
onus of demonstrating that the violation of s. 7 was necessary to
uphold Canada’s treaty obligations.  See R. v. Malmo-Levine 2000
BCCA 335 at para. 151.
[120]     Further, an important aspect of the Crown’s defence of
the Controlled Drugs and Substances Act was the availability of a
Ministerial exemption under s. 56 of the Act.  Again, it may be
that the availability of such an exemption is more properly dealt
with under s. 1, in which cases the burden would be on the Crown
to demonstrate that the availability of such an exemption could
save the prima facie violation of s. 7.  This is of some
importance in view of the paucity of evidence on the operation of
s. 56.
[121]     However, this case was argued by both parties on the
basis that all of these issues were part of the s. 7 analysis and
that the burden was therefore on the respondent throughout.  I
have dealt with the case on that basis.  The fact that I have
taken into account a broader range of state interests in the s. 7
analysis, if an error, would benefit the Crown, since at the s. 7
stage the burden was on the respondent.  I will return to the
relationship between ss. 1 and 7 after the s. 7 analysis.
(ii) History of use and prohibition of marihuana
[122]     It will be seen that at the core of the analysis of the
principles of fundamental justice that apply in this case is the
state interest in enacting the prohibition.  Identifying the
state interest informs the analysis in both the Morgentaler and
Rodriguez cases.  In Rodriguez, in particular, the issues were
more complex than here.  In that case, the court had to contend
with the dilemma posed by the applicant’s claim to choose the
time and manner of her death as an aspect of security of the
person protected by s. 7 of the Charter, and the public interest
in sanctity of life that also finds expression in s. 7 of the
Charter.  At the heart of that dilemma was the apparently
arbitrary distinction in the blanket statutory prohibition on
assisted suicide on one hand and, on the other hand, the common
law that allows a physician to withhold or withdraw life-saving
or life-maintaining treatment on the patient’s instructions and
to administer palliative care, which has the effect of hastening
death.
[123]     While this appeal does not present the same level of
complexity nor the need to make the same kinds of agonizing
distinctions, the form of analysis engaged in by Sopinka J. in
Rodriguez will assist in applying the principles of fundamental
justice to this case.  It is only by considering the history of
the use of and prohibition on marihuana, the common law
respecting patients’ rights, law reform and legislative
initiatives, and legislation in other countries that the court
can put some legal content into the application of the principles
of fundamental justice that I have identified above.
[124]     For reasons that will become apparent, the Crown does
not now support the marihuana prohibition on the basis of its
historical roots.  In the Clay trial and appeal, the Crown
expressly renounced any reliance on the theories that marihuana
is a “gateway” drug to harder drugs; that it provokes criminal
activity; that marihuana use leads to lack of motivation; or
causes psychosis.  The Crown argues that the objectives of the
prohibition are first to prevent the harms associated with
smoking marihuana, including harm to human health.  In addition,
it claims the prohibition is necessary to control the domestic
and international trade in illicit drugs and to satisfy Canada’s
international treaty obligations.
[125]     The parties filed an abundance of evidence about the
history of marihuana use.  I have found of greatest assistance
the 1998 report of the House of Lords Select Committee on Science
and Technology, “Cannabis, the Scientific and Medical Evidence”.
Like many other herbs, marihuana has been used in Asian and
Middle Eastern countries for at least 2600 years for medicinal
purposes.  It first appeared in Western medicine in 60 A.D. in
the Herbal (i.e. pharmacopoeia) of Dioscorides and was listed in
subsequent herbals or pharmacopoeia since that time.  Marihuana
was widely used for a variety of ailments, including muscle
spasms, in the nineteenth century.  In the 1930’s, the advent of
synthetic drugs led to the abandonment of many ancient herbal
remedies including marihuana, although an extract of cannabis and
a tincture of cannabis remained in the British Pharmaceutical
Codex of 1949.
[126]     In R. v. Clay at pp. 356-57, McCart J. provided a
summary of the early history of regulation of marihuana in
Canada.  That history shows that, unlike the regulation of
assisted suicide, for example, regulation of marihuana has a very
short history and lacks a significant foundation in our legal
tradition.  It is, in fact, an embarrassing history based upon
misinformation and racism.  As McCart J. observed, the marihuana
prohibition was enacted in a climate of “irrational fear” based
upon wild and outlandish claims that its users are driven
completely insane, immune from pain and, while in this state of
maniacal rage, kill or indulge in other forms of violence using
the most savage methods of cruelty.
[127]     In 1961, the United Nations Single Convention on
Narcotic Drugs was adopted by many countries including Canada and
the United Kingdom and this led to new legislation in both
countries, the Narcotic Control Act in Canada and the Dangerous
Drugs Act 1965 in the United Kingdom. Under the Dangerous Drugs
Act 1965, physicians could still prescribe marihuana.  In the
Narcotic Control Act, marihuana was put in the same category as
heroin and its possession was prohibited.  Theoretically, a
physician could prescribe marihuana under the Narcotic Control
Act, but since no firm has ever been licensed to produce
marihuana, there is no pharmacy to fill such a prescription and
thus it is practically not possible to legally possess marihuana
pursuant to a prescription.
[128]     In R. v. Hauser (1979), 46 C.C.C. (2d) 481, the Supreme
Court of Canada held that the Narcotic Control Act should be
classified as legislation enacted under the general residual
federal power.  In reviewing the history of the legislation,
Pigeon J. noted that the Act appeared to have been a response to
Canada’s signing of the Single Convention of Narcotic Control
1961.  At p. 497, he compared the Act with the preamble to the
Convention:
The conditions under which narcotics may be sold, 
had in possession, or otherwise dealt in, are now 
determined by regulations. A large number of those 
drugs are authorized for sale or administration 
under medical prescription. In fact, a certain 
number are enumerated in the list of drugs to be 
supplied at Government expense which list was 
published in the Quebec Official Gazette, December 
13, 1978, pp. 6737 to 6982, pursuant to the Quebec 
Health Insurance Act, 1970 (Que.), c. 37. These
include among others, codeine, cocaine, morphine 
and opium.
It does not appear to me that the fact that the 
specific drugs with which we are concerned in this 
case are completely prohibited, alters the general 
character of the Act which is legislation for the 
proper control of narcotic drugs rather than a
complete prohibition of such drugs. In the preamble 
of the 1961 convention one reads:
The Parties,
Concerned with the health and welfare of
mankind,
Recognizing that the medical use of narcotic 
drugs continues to be indispensable for the 
relief of pain and suffering and that 
adequate provision must be made to ensure the 
availability of narcotic drugs for such 
purposes,
Recognizing that addiction to narcotic drugs 
constitutes a serious evil for the individual 
and is fraught with social and economic
danger to mankind,
Conscious of their duty to prevent and combat 
evil,
Considering that effective measures against 
abuse of narcotic drugs require co-ordinated 
and universal action.
Understanding that such universal action calls 
for international cooperation guided by the 
same principles and aimed at common objectives 
... [Emphasis added.]
[129]     In this case, the Crown asserts that one of the
objectives of the marihuana prohibition is to satisfy Canada’s
international treaty obligations with respect to the control of
illicit drugs.  It is ironic then that the preamble of the
international convention that led to the enactment of the
Narcotic Control Act recognizes what Parker asserts—that “the
medical use of narcotic drugs continues to be indispensable for
the relief of pain and suffering and that adequate provision must
be made to ensure the availability of narcotic drugs for such
purposes”.
[130]     In 1971, the United Nations adopted the Convention on
Psychotropic Substances.  Cannabis appeared in Schedule I to the
Convention and parties were therefore obliged to ban marihuana
“except for scientific and very limited medical purposes by duly
authorized persons” (House of Lords Select Committee report at
para. 2.9).  This led to new legislation in the United Kingdom,
the Misuse of Drugs Act 1971.  Cannabis was moved to a new
schedule and subject to an absolute ban thereby prohibiting its
medical use altogether.
[131]     In 1988, the United Nations adopted the Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.  A party to the Convention is, inter alia, required
to adopt measures “subject to its constitutional principles and
the basic concepts of its legal system” to prohibit the
possession of cannabis and the cultivation of cannabis for
personal use.  In 1997, Parliament repealed the Narcotic Control
Act and enacted the Controlled Drugs and Substances Act.
Marihuana has now been removed from the same category of drugs
such as heroin (Schedule I) and is included in Schedule II.  The
effect is to lower the maximum penalty for possession and
cultivation of marihuana.  As under the Narcotic Control Act, it
is theoretically possible for a physician to prescribe marihuana
but since there is no legal source for the drug, the prescription
could not be filled.
[132]     While the marihuana prohibition is not firmly rooted in
our history, there is a well-established history of regulation of
drugs in this country.  However, of all of the drugs with
potential therapeutic effects, marihuana stands out because it is
subject to a complete prohibition.  This prohibition results from
the web of legislation that makes it impossible as a practical
matter for a physician to prescribe marihuana and therefore for a
patient to legally possess it pursuant to a prescription.
[133]     Far more dangerous drugs such as morphine and heroin
are subject to regulation, not outright prohibition, and a
patient can obtain these drugs through a physician’s
prescription, although in the case of heroin, there are added
safeguards.  One telling piece of history is that Marinol, which
contains THC and has the psychoactive effects associated with
smoked marihuana, has been approved for use in Canada and can be
obtained by prescription.  In 1999, the House of Commons
overwhelmingly passed a motion, M-381, urging the government to
legalize the medicinal use of marihuana and to establish clinical
trials and a legal supply of the drug.
[134]     It seems to me that a reasonable conclusion to draw
from this history is that a blanket prohibition including medical
use of marihuana does not have a long-standing foundation in our
legal tradition and societal beliefs.  I recognize that the
Quebec Court of Appeal drew a somewhat different conclusion in R.
v. Hamon (1993), 85 C.C.C. (3d) 490 at 494 in meeting an argument
that marihuana is less dangerous than alcohol and yet alcohol use
is not absolutely prohibited.  In that context, Beauregard J.A.
held that “we do not have a cultural tradition which would
prevent the state from acting”.  That is not, however, the same
as a finding that marihuana prohibition is part of our cultural
tradition.  As McCart J. demonstrated, it is of recent origin and
then was based on a very fragile foundation.
(iii)     Common law access to treatment
[135]     We were not directed to any common law history of
entitlement to drug therapy.  The closest analogue is the
doctrine of informed consent, which makes it a civil wrong to
impose treatment without the consent of the patient.  The patient
may also demand that treatment, once commenced, be withdrawn or
discontinued.  See Rodriguez at pp. 598-99.  While there is
obviously a difference between a right to refuse treatment and a
right to demand treatment, they can also be seen as two points on
a continuum rooted in the common-law right to self-determination
with respect to medical care.  This includes the right to choose
to select among alternative forms of treatment.  Robins J.A.
summarized the common law in Malette v. Shulman (1990), 67 D.L.R.
(4th) 321 (Ont. C.A.) at 328:
The right of self-determination which underlies the 
doctrine of informed consent also obviously 
encompasses the right to refuse medical treatment. 
A competent adult is generally entitled to reject a 
specific treatment or all treatment, or to select an
alternate form of treatment, even if the decision may 
entail risks as serious as death and may appear 
mistaken in the eyes of the medical profession or of 
the community. Regardless of the doctor's opinion, it 
is the patient who has the final say on whether to 
undergo the treatment. The patient is free to decide,
for instance, not to be operated on or not to undergo 
therapy or, by the same token, not to have a blood 
transfusion. If a doctor were to proceed in the face 
of a decision to reject the treatment, he would be 
civilly liable for his unauthorized conduct 
notwithstanding his justifiable belief that what he did
was necessary to preserve the patient's life or health. 
The doctrine of informed consent is plainly intended to 
ensure the freedom of individuals to make choices 
concerning their medical care. For this freedom to be 
meaningful, people must have the right to make choices 
that accord with their own values regardless of how 
unwise or foolish those choices may appear to others 
… [Emphasis added.]
[136]     Some common-law support for access to drugs with a
therapeutic value, notwithstanding a legal prohibition, can also
be found in the defence of necessity.  In Perka v. The Queen,
[1984] 2 S.C.R. 232 at 250, Dickson J. described the moral and
legal basis for the defence:
	At the heart of this defence is the perceived 
	injustice of punishing violations of the law in 
	circumstances in which the person had no other 
	viable or reasonable choice available; the act 
	was wrong but it is excused because it was 
	realistically unavoidable.
[137]     Using a criminal prohibition to bar access to a drug
for a person, such as Parker, who requires it to treat a
condition that threatens his life and health, is antithetical to
our notions of justice.  It is inconsistent with the principle of
sanctity of life which, according to Sopinka J. in Rodriguez at
p. 605, as a general principle “is subject to limited and narrow
exceptions in situations in which notions of personal autonomy
and dignity must prevail”.
[138]     Permitting access to medicine that may relieve
debilitating symptoms of illness is consistent with the common
understanding about the purpose of proper medical care.  In
Airedale N.H.S. Trust v. Bland, [1993] A.C. 789 at 857, Lord
Keith of Kinkel stated that the object of medical treatment and
care is to benefit the patient.  Where illness can neither be
prevented nor cured, “efforts are directed towards preventing
deterioration or relieving pain and suffering”.
[139]     To summarize, the common-law treatment of informed
consent, the sanctity of life and commonly held societal beliefs
about medical treatment suggest that a broad criminal prohibition
that prevents access to necessary medicine is not consistent with
fundamental justice.
(iv) Legislation in other countries
[140]     A survey of legislation in other countries shows an
increasing tolerance for possession of marihuana for personal
use, although no country has fully decriminalized possession.
There is some movement towards actual decriminalizing of
marihuana for medical uses.  In the United States, 34 states have
legislation that recognizes the medical value of marihuana and
theoretically makes the substance available as a medicine.  Only
a few states, such as California and Hawaii, have actually
enacted legislation to implement these initiatives.  I have
attached as appendices to these reasons the California
Compassionate Use Act of 1996, which added s. 11362.5 to the
Health and Safety Code, and the recent Hawaiian legislation.  The
matter is also complicated in the United States because of the
federal government’s position on legalization.  Federal
legislation still makes the possession, use, prescription or sale
of marihuana illegal regardless of the state medical exemptions.
However, even at the federal level there is now some change.  In
March 2, 1999, a Bill was introduced in Congress titled Medical
Use of Marijuana Act.  This Act would allow state laws to become
fully operative and exempt medical marihuana from federal drug
legislation.
[141]     The House of Lords report, mentioned earlier,
recommended that the government transfer cannabis from Schedule 1
to Schedule 2 of the Misuse of Drugs Regulations to permit
physicians to prescribe it and pharmacists to supply it as an
unlicensed medicine.  The U.K. government has refused to do so,
although it has agreed to approve clinical trials of cannabis for
treatment of MS and chronic pain.
[142]     In Rodriguez, Sopinka J. placed some reliance on the
fact that the official position of various medical associations
was against decriminalizing assisted suicide.  I have earlier
reviewed Dr. Morgan’s testimony concerning recent studies by the
British Medical Association and the United States Institute of
Medicine.  These studies strongly support the view that marihuana
has medicinal value and urge more study of the medical use of
marihuana.  There is no apparent support for a blanket
prohibition on medicinal use of marihuana and to the contrary
some recognition that at the moment there may be no alternative
than to permit patients to smoke marihuana to relieve the
symptoms for certain serious illnesses.  For example, the House
of Lords Select Committee on Science and Technology in its Report
on “Cannabis:  The Scientific and Medical Evidence” provided this
comment at para. 8.7:

          [P]eople who use cannabis for medical reasons
          are caught in the front line of the war
          against drug abuse.  This makes criminals of
          people whose intentions are innocent, it adds
          to the burden on enforcement agencies, and it
          brings the law into disrepute.  Legalising
          medical use on prescription, in the way that
          we recommend, would create a clear separation
          between medical and recreational use, under
          control of the health care professions.  We
          believe it would in fact make the line
          against recreational use easier to hold.          
(v)  Conclusion on the principles of fundamental justice and the 
blanket prohibition on marihuana possession and cultivation
[143]     In the companion case of R. v. Clay, I have reviewed at
greater length the state’s objectives in prohibiting marihuana.
First, the state has an interest in protecting against the
harmful effects of use of that drug.  Those include bronchial
pulmonary harm to humans; psychomotor impairment from marihuana
use leading to a risk of automobile accidents and no simple
screening device for detection; possible precipitation of relapse
in persons with schizophrenia; possible negative effects on
immune system; possible long-term negative cognitive effects in
children whose mothers used marihuana while pregnant; possible
long-term negative cognitive effects in long-term users; and some
evidence that some heavy users may develop a dependency.  The
other objectives are: to satisfy Canada’s international treaty
obligations and to control the domestic and international trade
in illicit drugs.  It remains to consider whether the deprivation
of Parker’s rights to liberty and security of the person enhance
these objectives.
[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 marihuana is to prevent the harms
associated with marihuana 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.9  If the purpose of the marihuana prohibition is to
protect the health of users and thereby eliminate the related
costs to society,10 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 marihuana 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 marihuana 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 marihuana
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 marihuana.
[146]     As to Canada’s international treaty obligations with
respect to the control of illicit drugs, I have already referred
to the decision of the Supreme Court of Canada in R. v. Hauser
and its reliance on Canada’s being a party to the Single
Convention of Narcotic Control 1961.  As I noted, the first
objective of that Treaty, as set out in the preamble, recognizes
that “the medical use of narcotic drugs continues to be
indispensable for the relief of pain and suffering and that
adequate provision must be made to ensure the availability of
narcotic drugs for such purposes”.  The former Narcotic Control
Act, which made no provision for the legal medical use of
marihuana, does not further this objective.
[147]     Subsequent Conventions have tightened the control on
all narcotics and psychotropic substances, including marihuana.
The 1971 Convention permitted use of marihuana for limited
medical purposes by duly authorized persons.  The 1988 Convention
requires states to prohibit possession, purchase and cultivation
of marihuana for personal use, subject to the country’s
“constitutional principles and the basic concepts of its legal
system”.  It is self-evident that if under our Constitution,
namely s. 7 of the Charter of Rights and Freedoms, the
prohibition of possession and cultivation of marihuana for
medical purposes is unconstitutional, it would be open to
Parliament to enact such an exemption and still comply with its
treaty obligations.11  Prohibiting possession or cultivation of
marihuana for personal medical use does nothing to enhance the
state’s interest in fulfilling its international obligations.  In
R. v. Clay at p. 357, McCart J. noted that in their hard-line
approach to marihuana possession, the United States (and Canada)
appear “somewhat out of step with most of the rest of the western
world”.  The fact that state and federal lawmakers in the United
States now seem to favour making marihuana available for medical
use suggests that such a move in Canada would not be inconsistent
with our international obligations.
[148]     Finally, in considering Canada’s treaty obligations, it
should be borne in mind that Canada is also a party to the
International Covenant on Economic, Social and Cultural Rights,
(1976), 993 U.N.T.S. 3.12  Article 12 of the Covenant includes the
following:
1.   The States Parties to the present Covenant 
recognize the right of everyone to the enjoyment 
of the highest attainable standard of physical 
and mental health.
2.   The steps to be taken by the States Parties 
to the present Covenant to achieve the full 
realization of this right shall include those 
necessary for:
(d)  The creation of conditions which would 
assure to all medical service and medical 
attention in the event of sickness.  [Emphasis 
added.]   
[149]     I have already noted the Crown’s argument that the
trial judge “expressly” reversed the onus of proving that the
legislation was in accord with the principles of fundamental
justice.  This is based in part on the emphasized excerpt from
the following portion of the trial judge’s reasons:
However, these schedules include also numerous 
narcotic drugs which are possessed and used by 
Canadians with medical approval.  The Convention 
therefore, is not a prohibition against all 
possession or distribution.  As article 3(2) states, 
the Convention must be read subject to Canada’s 
constitutional principles and it is up to Canada to 
“adopt such measures, AS MAY BE NECESSARY” (Court 
emphasis) to criminalize the possession of marihuana.  
The respondent/Crown, on these facts and based on any
of the tests of the principles of fundamental justice, 
has not demonstrated the necessity of a legislative 
enactment so broad as to prevent therapeutic use of 
this non-manufactured grown plant product.  [Emphasis 
added.]
[150]     In my view, when read in context, this part of the
reasons only refers to the discussion about Canada’s
international obligations.  Resolution of that issue did not
depend on the burden of proof.  In this passage, the trial judge
is making the common-sense observation, not disputed at trial or
on appeal, that a medical exemption is consistent with
international obligations.  By this point in his reasons, the
trial judge has already held that a blanket prohibition does not
accord with the principles of fundamental justice since it does
little or nothing to enhance the state interest.  Given the Crown
position that a medical exemption is possible under the
Conventions, the apparent reversal of the burden is of no
consequence.13
[151]     The Crown also supports the legislation as necessary to
control the domestic and international trade in illicit drugs.
While such an objective suggests a need for some form of control
on the distribution of marihuana, the complete prohibition on the
possession or cultivation of marihuana for personal therapeutic
use does little to enhance this state interest.  The Crown has
never asserted that the number of persons who could legitimately
claim access to marihuana for medical purposes is very large.
They could have little impact on the huge market for illicit
marihuana.  Prohibiting these patients access to marihuana does
little to enhance these state interests.  What is required is
regulation of this drug, as with tranquilizers, morphine and
other much more dangerous and addictive drugs, for which there is
also no doubt a large illicit market.
[152]     To conclude, the deprivation of Parker’s rights to
liberty and security of the person because of the complete
prohibition on the possession or cultivation of marihuana in the
former Narcotic Control Act does little or nothing to enhance the
state’s interest.  In my view, Parker established that his rights
under s. 7 were violated by the absolute prohibition on
cultivation of marihuana in the Narcotic Control Act.  Parker has
no other practical means of obtaining the drug for his medical
needs.  I did not understand the Crown to suggest that we should
distinguish between the possession and cultivation for personal
medical use, for the purpose of the s. 7 analysis.  Since the
cultivation offence is the only provision at issue under that
Act, strictly speaking I need not consider the validity of the
possession offence.  However, it is obvious from this discussion
that were that provision before this court, I would have found
that it also violates Parker’s rights under s. 7.
[153]     I am also of the view that, subject to the availability
of a s. 56 exemption, Parker has established that the similar
prohibition on possession and cultivation of marihuana in the
Controlled Drugs and Substances Act violates his rights under s.
7 of the Charter.  Again, since, strictly speaking, the
possession offence is the only provision at issue under that Act,
it is unnecessary to consider the validity of the cultivation
offence.  Before turning to s. 56, it will be convenient to deal
with other principles of fundamental justice.
(vi)  Does the practical unavailability of a defence under
the legislation infringe the principles of fundamental justice?
[154]     In Morgentaler, Dickson C.J.C. rested his finding that
the abortion prohibition was unconstitutional on the practical
unavailability of the defence that was theoretically available
through the therapeutic abortion committee procedure.  He
reviewed the extensive evidence that demonstrated that
therapeutic abortions were unavailable in many parts of the
country and that even where it was available the delays created
by the administrative structure often required physicians to use
a riskier procedure when the abortion was finally approved.  He
explained at pp. 72-3, in a passage that I have previously
quoted, why this was inconsistent with the principles of
fundamental justice.  To summarize, he held that it was
manifestly unfair to create a defence that contained so many
barriers to its operation that it was practically unavailable to
women who would prima facie qualify for the defence.  Dickson
C.J.C. also explained at p. 76 why this violation of s. 7 could
not be saved under s. 1:
I conclude, therefore, that the cumbersome structure 
of s-s. (4) not only unduly subordinates the s. 7 
rights of pregnant women but may also defeat the 
value Parliament itself has established as paramount, 
namely, the life and health of the pregnant woman. As 
I have noted, counsel for the Crown did contend that 
one purpose of the procedures required by subs. (4)
is to protect the interests of the foetus. State 
protection of foetal interests may well be deserving 
of constitutional recognition under s. 1. Still, 
there can be no escape from the fact that Parliament 
has failed to establish either a standard or a 
procedure whereby any such interests might prevail 
over those of the woman in a fair and non-arbitrary 
fashion.  [Emphasis added.]
[155]     The same may be said of the theoretical defence
available in the Narcotic Control Act and the Controlled Drugs
and Substances Act.  Under s. 3 of the Narcotic Control Act and
s. 4 of the Controlled Drugs and Substances Act it is an offence
to have possession of any narcotic or scheduled substance
respectively including marihuana except as authorized by the Act
or regulations.  While the regulations theoretically contemplate
that a physician could prescribe marihuana, the evidence from the
government witness was that since there is no legal source for
marihuana, no pharmacist could fill the prescription and that the
government would not look favourably upon a physician who
purported to write such a prescription.  That witness also
established the practical impossibility of Parker obtaining a
legal source of marihuana.  For example, the process for approval
of a new drug involves the expenditure of hundreds of thousands
of dollars.  For most of his life, Parker has been on government
assistance as a result of his disability.
[156]     The Crown says that it is not the fault of the
legislation, but the fact that no one has come forward to attempt
to comply with the legislation to obtain new drug approval. The
practical unavailability of marihuana due to the administrative
structure prevents Parker and people like him who require the
drug for medical purposes from obtaining a prescription for the
drug because of the absence of a legal supply.  Put simply, the
expense for Parker in obtaining a legal source of the drug
through the new drug approval procedure established by the state
makes the defence held out under the legislation practically
unavailable.
[157]     Although we heard little argument on the point, I do
not doubt the importance of the state interest in ensuring that
new drugs meet stringent standards before they are made widely
available to the public.  One only has to remember the tragedy of
Thalidomide to understand the need for the regulatory structure.
However, the problem facing this court is different.  I have
found that Parker established that the criminal prohibition
against possession of marihuana infringed his security of the
person.  He requires marihuana to treat his epilepsy and without
it, his life and health are endangered.  He has also established
that the side effects of his use of marihuana are minor, compared
to the side effects from the prescription drugs he is required to
take as part of his conventional treatment.  The state interest
in strict regulation of new drugs must be balanced against the
risk to Parker’s life and health posed by the administrative
structure established by Parliament and the government.  The
state cannot hold out as a generally available defence the
possibility of possessing the drug in accordance with a
prescription when Parker is practically precluded from availing
himself of the defence.
[158]     In Morgentaler, the Crown made essentially the same
argument.  As summarized in the reasons of Dickson C.J.C. at p.
61, the Crown argued that any impairment to the physical or
psychological interests of individuals caused by the abortion
provisions of the Code “does not amount to an infringement of
security of the person because the injury is caused by practical
difficulties and is not intended by the legislator”.
[159]     Dickson C.J.C. rejected the argument for two reasons.
First, as a practical matter it was not possible to erect a rigid
barrier between the purposes of the section and the
administrative procedures established to carry those purposes
into effect.  For example, the delay resulted not simply from the
practical problems, but was inherent in the cumbersome operating
requirements of the section itself.  Second, even if it were
possible to dissociate purpose and administration, the Supreme
Court had previously held that both purpose and effect must be
considered.  As Dickson C.J.C. said at pp. 62-3:
Even if the purpose of legislation is unobjectionable, 
the administrative procedures created by law to bring 
that purpose into operation may produce unconstitutional 
effects, and the legislation should then be struck down. 
It is important to note that, in speaking of the effects 
of legislation, the court in R. v. Big M Drug Mart Ltd. 
was still referring to effects that can invalidate 
legislation under s. 52 of the Constitution Act, 1982
and not to individual effects that might lead a court to 
provide a personal remedy under s. 24(1) of the Charter. 
In the present case, the appellants are complaining of 
the general effects of s. 251. If s. 251 of the Criminal 
Code does indeed breach s. 7 of the Charter through its 
general effects, that can be sufficient to invalidate 
the legislation under s. 52.  [Emphasis added.]
[160]     I need only consider the second reason referred to by
Dickson C.J.C.  Even if the purpose of the regulatory scheme
created by the Narcotic Control Act and the Controlled Drugs and
Substances Act and Regulations is valid, the administrative
procedures created to bring the purpose into operation produce
unconstitutional effects for the group of people like Parker who
require marihuana for medical purposes.14
[161]     Even if I am wrong on this aspect of the case, the
theoretical availability of marihuana through the new drug
programme does not answer Parker’s claim that the prohibition
infringes his right to liberty.  I have described that right as
the right to make decisions that are of fundamental personal
importance, which includes the choice of medication to alleviate
the effects of an illness with life-threatening consequences.
There may be circumstances in which the state interest in
regulating the use of new drugs prevails over the individual’s
interest in access.  This, however, is not one of those
circumstances.  The evidence establishes that the danger from the
use of the drug by a person such as Parker for medical purposes
is minimal compared to the benefit to Parker and the danger to
Parker’s life and health without it.  It may be that the state is
entitled to require the approval of the patient’s choice by a
physician in much the same way that in Morgentaler, Beetz J.
contemplated that even if there was a right of access to abortion
founded upon the right to liberty, a second medical opinion as to
the mother’s health could be justified in some circumstances
(Wilson J. suggested the second trimester) because of the state
interest in the protection of the foetus.  However, the current
legal and administrative structure completely deprives Parker of
any choice, even with the approval of his physician.15
[162]     In summary, like the defence for women who required an
abortion because the continuation of the pregnancy would endanger
their health, the defence in the Narcotic Control Act and the
Controlled Drugs and Substances Act is practically unavailable to
Parker and others like him who require marihuana for conditions
threatening their life or health.  This constitutes a violation
of the principles of fundamental justice.  Again, as Dickson
C.J.C. said in Morgentaler at p. 70:
One of the basic tenets of our system of criminal 
justice is that when Parliament creates a defence 
to a criminal charge, the defence should not be 
illusory or so difficult to attain as to be
practically illusory. The criminal law is a very 
special form of governmental regulation, for it 
seeks to express our society's collective 
disapprobation of certain acts and omissions. When 
a defence is provided, especially a specifically-
tailored defence to a particular charge, it is 
because the legislator has determined that the 
disapprobation of society is not warranted when the 
conditions of the defence are met.  [Emphasis 
added.]
[163]     Parliament has created a defence to the possession and
cultivation offences if the person can comply with the
regulations.  Those regulations, for example, permitted a person
to legally possess the drug under prescription from a physician.
The government’s own witness established that this defence or
exemption is illusory.  This is not consistent with the
principles of fundamental justice.
6.   Is there a different analysis of fundamental justice under 
the Controlled Drugs and Substances Act?
(i)  Introduction
[164]     The Crown argues that even if Parker has established a
deprivation of his right to liberty or security of the person (as
opposed to a mere preference for an illegal form of treatment),
the Controlled Drugs and Substances Act does comply with the
principles of fundamental justice because of the three legal
means by which Parker could possess marihuana.  They are:
(i)  The Health Canada procedure for approval of 
new drugs,
(ii)  The Emergency Drug Release (Compassionate 
Use) Programme,
(iii) An application to the Minister of Health 
under s. 56 of the Act.
[165]     I have already briefly dealt with the Health Canada
procedure for approval of new drugs.  As to the Emergency Drug
Release Programme or Compassionate Use Programme under the
Narcotic Control Regulations, the theoretical availability of
this programme to Parker runs up against the practical and, for
Parker, insuperable barrier that there is no licensed source of
marihuana because it is a controlled substance.  Thus, while the
Programme allows applications to be made for access to otherwise
non-marketed drugs, marihuana is not available because Health
Canada has not licensed any firm to produce and distribute it.
The Crown says this is because no one has come forward seeking a
licence.  The same considerations that applied to my discussion
of the new drug approval process apply.  Parker simply does not
have the means to become a licensed dealer in marihuana and
therefore no means of taking advantage of the Compassionate Use
Programme.
(ii)   Section 56 of the Controlled Drugs and Substances Act
[166]     The third alternative source for legal possession of
marihuana is through s. 56 of the Controlled Drugs and Substances
Act.  That section provides as follows:
56. The Minister may, on such terms and conditions 
as the Minister deems necessary, exempt any person 
or class of persons or any controlled substance or 
precursor or any class thereof from the application 
of all or any of the provisions of this Act or the 
regulations if, in the opinion of the Minister, the
exemption is necessary for a medical or scientific 
purpose or is otherwise in the public interest.
[167]     The trial judge held that there was no provision under
the former Narcotic Control Act or the Controlled Drugs and
Substances Act for an exemption for a person requiring marihuana
for medical purposes.  This statement is true about the Narcotic
Control Act.  It is not the case under the Controlled Drugs and
Substances Act.  In fairness to the trial judge, s. 56 was never
drawn to his attention and Mr. Rowsell, the government witness,
who should have known about s. 56, made no mention of it in his
evidence.  In summary, at trial, the Crown did not advance the
availability of an exemption under s. 56 as a basis for upholding
the legislation.
[168]     Counsel for Parker argues that the Crown should not now
be permitted to rely upon s. 56.  This court is reluctant to
permit litigants to raise constitutional arguments for the first
time on appeal, even where the argument is to support a defence
for an accused.  Thus, at the opening of the appeal we indicated
to the intervener Epilepsy Association of Toronto that it would
not be permitted to challenge the validity of the Act under s. 15
of the Charter, notwithstanding the potential force of such a
submission, because no such challenge was made at trial.16
[169]     There are important institutional and practical reasons
underlying our reluctance to allow constitutional arguments to be
raised for the first time on appeal.  If the matter is not raised
at trial, the necessary adjudicative facts may not be before the
court to enable the court to adequately address the new issue.
An appellate court also does not have the benefit of findings of
fact by the trial judge concerning disputed adjudicated and
legislative facts.  Where the Crown raises a new issue for the
first time on appeal, double jeopardy concerns may arise.  See R.
v. Varga (1994), 90 C.C.C. (3d) 484 (Ont. C.A.) at 494.
[170]     The Crown’s new-found reliance on s. 56 involves many
of these considerations.  We have only a sparse record concerning
the operation of s. 56, especially since the Crown declined this
court’s offer to adjourn the hearing of the appeal to obtain
further evidence.  What information there is comes from the
decisions of LaForme J. of the Superior Court of Justice in
Wakeford v. Canada (1998), 166 D.L.R. (4th) 131 and (1999), 173
D.L.R. (4th) 726 to which I will refer and the fresh evidence put
forward by Parker through the affidavit and cross-examination of
Mr. Oscapella.
[171]     Nevertheless, in my view, it is necessary for this
court to consider the application of s. 56.  Although there was
no evidence about s. 56 at trial, the section was part of the
statute under consideration and in that sense the issue was
before the court.  Failure to consider, even on this sparse
record, the application of s. 56, which has become central to the
government’s defence of the legislation, could undermine the
legitimacy of this court’s judgment.
[172]     I have reviewed the fresh evidence concerning s. 56
applications earlier.  In summary, in May 1999, Health Canada
released the Interim Guidance Document that outlines the process
for Canadians to obtain exemptions under s. 56.  At the time of
Mr. Oscapella’s cross-examination, two exemptions had been
granted for cannabis possession.  This trial took place in 1997
and, as I have indicated, there was no practical way for Parker
to have obtained an exemption under s. 56.  Parker submits that
the government’s new-found interest in s. 56 is the result of the
Wakeford decisions.  It is worth examining those decisions.
[173]     Mr. Wakeford suffers from AIDS.  His illness and the
various drugs he must take to control it leave him with many
debilitating side effects including nausea and loss of appetite.
He tried using Marinol, but this only made him sicker.  He began
to use marihuana under a physician’s supervision in 1996.  He
found that the marihuana controlled his nausea and stimulated his
appetite and countered many of the side effects he experienced
from the prescription drugs.  In 1998, he applied to the Ontario
Court (General Division) (now the Superior Court of Justice) for
a constitutional exemption.  His submissions were similar to
those made in this case, although he also relied upon s. 15 of
the Charter.  In his first judgment released September 8, 1998,
LaForme J. held that Wakeford’s s. 7 rights were not infringed
because he had not demonstrated that he could not obtain an
exemption under s. 56 of the Act.  However, he also held at pp.
150-51 that if there was no real process or procedure whereby an
individual could apply for an exemption, he would “have no
hesitation in granting, perhaps even all, the relief Mr. Wakeford
seeks”.
[174]     In March 1999, Mr. Wakeford applied to re-open the
original application.  The evidence adduced on the new hearing
demonstrated that in fact there was no process by which Mr.
Wakeford could have obtained a s. 56 exemption.  As LaForme J.
put it, the availability of the exemption was illusory.  At the
time of the new hearing, the process for obtaining s. 56
exemptions was under development but it was unknown how the
process would work, how long it would take to process an
application and when Mr. Wakeford’s application would be dealt
with.  Accordingly, on the new hearing, LaForme J. granted Mr.
Wakeford an interim constitutional exemption from the operation
of the possession and cultivation offences under the Act until
the Minister decided upon his application.
[175]     The Crown submits that if this court were to find that
Parker’s right to liberty or security of the person is infringed
by the marihuana prohibition, that infringement is in accordance
with the principles of fundamental justice because of the
availability of the s. 56 exemption.  Mr. Wilson submits that the
fresh evidence shows that there is now a process in place for the
Minister to consider such applications.  He submits that the
Minister would have to comply with the dictates of the Charter in
considering such applications and further should there be a
refusal of the exemption in any particular case, the applicant’s
remedy is to judicially review the Minister’s decision, not
strike down the legislation.
[176]     Before dealing with the Crown’s submissions concerning
s. 56, it is important to make some preliminary comments.  I do
not wish the following reasons to be misinterpreted.  I do not
doubt that the present Minister of Health takes the issue of
medical use of marihuana seriously nor do I question his good
intentions.  On June 9, 1999, in response to a question from a
member, the Minister informed the House that he was exercising
his power under s. 56 for “two very sick people to use marijuana
for medical purposes”.17  In doing so he said the following:
Let us remember what this is about.  This is 
about showing compassion to people, often dying, 
suffering from grave and debilitating illness. I 
want to thank the member and all the members here 
for pushing this issue so that we behave properly 
on behalf of those who are sick and dying.
[177]     The question remains; does this unfettered discretion
meet constitutional standards?  In my view, notwithstanding the
theoretical availability of the s. 56 process, the marihuana
prohibition does not accord with the principles of fundamental
justice.  In Morgentaler, Dickson C.J.C. found the therapeutic
abortion scheme invalid in part because the provincial Ministers
of Health could impose so many restrictions as to make
therapeutic abortions unavailable in the province and because
there was no standard provided in the section for the committee
to use in determining whether the woman’s health was in danger.
He held as follows at pp. 67-8:
The requirement that therapeutic abortions be 
performed only in "accredited" or "approved" 
hospitals effectively means that the practical 
availability of the exculpatory provisions of 
subs. (4) may be heavily restricted, even denied, 
through provincial regulation. In Ontario, for 
example, the provincial government promulgated O. 
Reg. 248/70 under The Public Hospitals Act, R.S.O.
1960, c. 322, now R.R.O. 1980, Reg. 865. This 
regulation provides that therapeutic abortion 
committees can only be established where there are 
ten or more members on the active medical staff
(Powell Report, at p. 13). A minister of health is 
not prevented from imposing harsher restrictions. 
During argument, it was noted that it would even be 
possible for a provincial government, exercising 
its legislative authority over public hospitals, to
distribute funding for treatment facilities in such 
a way that no hospital would meet the procedural 
requirements of s. 251(4).  Because of the 
administrative structure established in s. 251(4)
and the related definitions, the "defence" created in 
the section could be completely wiped out.
A further flaw with the administrative system 
established in s. 251(4) is the failure to provide 
an adequate standard for therapeutic abortion 
committees which must determine when a therapeutic 
abortion should, as a matter of law, be granted. 
Subsection (4) states simply that a therapeutic 
abortion committee may grant a certificate when it
determines that a continuation of a pregnancy would 
be likely to endanger the "life or health" of the 
pregnant woman. It was noted above that "health" is 
not defined for the purposes of the section. The 
Crown admitted in its supplementary factum that the 
medical witnesses at trial testified uniformly that
the "health" standard was ambiguous, but the Crown 
derives comfort from the fact that "the medical 
witnesses were unanimous in their approval of the 
broad World Health Organization definition of health". 
The World Health Organization defines "health" not
merely as the absence of disease or infirmity, but as 
a state of physical, mental and social well-being.
I do not understand how the mere existence of a 
workable definition of "health" can make the use of 
the word in s.  251(4) any less ambiguous when that
definition is nowhere referred to in the section. 
There is no evidence that therapeutic abortion 
committees are commonly applying the World Health 
Organization definition. Indeed, the Badgley report
indicates that the situation is quite the contrary… 
[Emphasis added.]
[178]     The same must be said about s. 56.  It reposes in the
Minister an absolute discretion based on the Minister’s opinion
whether an exception is “necessary for a medical … purpose”, a
phrase that is not defined in the Act.  The Interim Guidance
Document issued by Health Canada to provide guidance for an
application for a s. 56 exemption sets out factors that the
Minister “may” consider in deciding whether an exemption is
necessary for a medical purpose.  This document does not have the
force of law and, in any event, merely sets out examples of
factors the Minister may consider.  It does not purport to
exhaustively define the circumstances.  In fact, the document
explicitly states that the Minister may take into account
considerations unrelated to medical necessity such as “the
potential for diversion”.18  The document also suggests that the
power under s. 56 is only to be exercised in “exceptional
circumstances”, a qualification not found in the statute itself.
[179]     Even if the Minister were of the opinion that the
applicant had met the medical necessity requirement, the
legislation does not require the Minister to give an exemption.
The section only states that the Minister “may” give an
exemption.  The Crown did not suggest that “may” should be
interpreted as “shall”.
[180]     The problem is not unlike the issue confronting the
court in Committee for the Commonwealth of Canada v. Canada,
[1991] 1 S.C.R. 139.  That case concerned freedom of expression
and the validity of s. 7 of the Government Airport Concession
Operations Regulations, SOR/79-373, which prohibited the
conducting of any business or undertaking, commercial or
otherwise, and any advertising or soliciting at an airport,
“except as authorized in writing by the Minister”.  There were
several sets of reasons and only some members of the court
reached the constitutional issue.  The comments of L’Heureux-Dubé
J., concurred in in this respect by Gonthier and Cory JJ., are
instructive, even taking into account that the case involved a
fundamental freedom under s. 2 rather than a guaranteed right
under s. 7 and that the relevant part of the discussion comes in
the s. 1 analysis.
[181]     L’Heureux-Dubé J. held that the violation of freedom of
expression could not be saved because an applicant could apply
for authorization.  At p. 214, she wrote as follows:
Rights and freedoms must be nurtured not inhibited.  
Vague laws intruding on fundamental freedoms create 
paths of uncertainty onto which citizens fear to 
tread, fearing legal sanction.  Vagueness serves 
only to cause confusion and most people will shy 
from exercising their freedoms rather than facing
potential punishment.
In addition, the Regulations provides that “except 
as authorized in writing by the Minister, no person 
shall …”.  It is clear that the Minister is given a 
“plenary discretion to do whatever seems best”. That
in itself may create a standard which is so vague as 
to be incomprehensible.  In any event, vagueness by 
virtue of the lack of a comprehensible standard does 
not accord with the requirement that a limit on a 
right or freedom be “prescribed by law”.  [Emphasis
added.]
[182]     Further, in concluding that the regulation did not meet
the Oakes test under s. 1, she held at pp. 225-26 as follows:
This particular provision does not even come close 
to meeting that standard.  As a result of its 
vagueness and overbreadth, there is no foreseeability 
as to what activity is in fact being proscribed.  
Furthermore, the unfettered discretion vested in the 
Minister itself undermines the reasonableness and
predictability of the provision’s application.  Those 
affected by the Regulation cannot be left to 
speculate or surmise how or in what circumstances it 
will be implemented.  Such conjecture is incompatible 
with the spirit, purposes and goals of our Charter,
and will not pass constitutional muster:  it has not 
been demonstrably justified in a free and democratic 
society.   [Emphasis added.]
[183]     McLachlin J. reached a similar conclusion in her
consideration of s. 1.  She held at pp. 246-47 that the limit on
the right should contain sufficient safeguards to ensure that as
the law is applied the right will not be infringed more than
necessary.  This latter danger may occur “if too much discretion
is granted to administrators charged with applying the limit or
law in question”.
[184]     In view of the lack of an adequate legislated standard
for medical necessity and the vesting of an unfettered discretion
in the Minister, the deprivation of Parker’s right to security of
the person does not accord with the principles of fundamental
justice.
[185]     In effect, whether or not Parker will be deprived of
his security of the person is entirely dependent upon the
exercise of ministerial discretion.  While this may be a
sufficient legislative scheme for regulating access to marihuana
for scientific purposes, it does not accord with fundamental
justice where security of the person is at stake.19
[186]     The problem is not unlike that faced by the court in R.
v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045 in considering the
validity of the seven-year minimum term of imprisonment for
importing narcotics under the former Narcotic Control Act.  The
Crown argued that violations of the right to protection against
cruel and unusual punishment under s. 12 of the Charter could be
avoided by prosecutorial discretion.  At pp. 1078-1079 Lamer J.
explained why this could not save the provision:
In its factum, the Crown alleged that such eventual
violations could be, and are in fact, avoided through 
the proper use of prosecutorial discretion to charge 
for a lesser offence.
In my view, the section cannot be salvaged by relying 
on the discretion of the prosecution not to apply the 
law in those cases whee, in the opinion of the
prosecution, its application would be a violation of 
the Charter. To do so would be to disregard totally 
s. 52 of the Constitution Act, 1982 which provides 
that any law which is inconsistent with the
Constitution is of no force or effect to the extent 
of the inconsistency and the courts are duty-bound 
to make that pronouncement, not to delegate the 
avoidance of a violation to the prosecution or to 
anyone else for that matter. Therefore, to conclude, 
I find that the minimum term of imprisonment provided 
for by s. 5(2) of the Narcotic Control Act infringes 
the rights guaranteed by s. 12 and, as such, is a 
prima facie violation of the Charter. Subject to the 
section's being salvaged under s. 1, the minimum must 
be declared of no force or effect.  [Emphasis added.]
[187]     In my view, this is a complete answer to the Crown’s
submission.  The court cannot delegate to anyone, including the
Minister, the avoidance of a violation of Parker’s rights.
Section 56 fails to answer Parker’s case because it puts an
unfettered discretion in the hands of the Minister to determine
what is in the best interests of Parker and other persons like
him and leaves it to the Minister to avoid a violation of the
patient’s security of the person.
[188]     If I am wrong and, as a result, the deprivation of
Parker’s right to security of the person is in accord with the
principles of fundamental justice because of the availability of
the s. 56 process, in my view, s. 56 is no answer to the
deprivation of Parker’s right to liberty.  The right to make
decisions that are of fundamental personal importance includes
the choice of medication to alleviate the effects of an illness
with life-threatening consequences.  It does not comport with the
principles of fundamental justice to subject that decision to
unfettered ministerial discretion.  It might well be consistent
with the principles of fundamental justice to require the patient
to obtain the approval of a physician, the traditional way in
which such decisions are made.  It might also be consistent with
the principles of fundamental justice to legislate certain
safeguards to ensure that the marihuana does not enter the
illicit market.  However, I need not finally determine those
issues, which, as I will explain in considering the appropriate
remedy, are a matter for Parliament.
[189]     I have one final concern with the availability of the
s. 56 process. An administrative structure made up of unnecessary
rules that results in an additional risk to the health of the
person is manifestly unfair and does not conform to the
principles of fundamental justice.  We were provided with little
evidence as to the operation of the s. 56 procedure as
established by the government.  The Oscapella affidavit includes
the Interim Guidance Document, that is, as I have indicated, to
provide guidance for a s. 56 application.  The document envisages
a detailed application and entitles the Minister to request
further information.  Since the Crown declined the opportunity to
present further fresh evidence about s. 56, the only evidence as
to the actual operation of the programme comes from the cross-
examination of Mr. Oscapella, which was hearsay based on
information he had obtained from government employees, presumably
persons who could have provided evidence for the Crown.20  Mr.
Oscapella testified that, despite the statement by the Minister
in the House of Commons that he intended there be a “15-day
turnaround period”, only two exemptions had been granted as of
June 9, 1999.  As of August 26, 1999, a further 15 applications
were complete but had still not been dealt with by the Minister
as of the date of the cross-examination on September 14th.  These
kinds of delays, which may be due to the administrative
procedure, would further endanger the health of a person like
Parker.
[190]     To conclude, in my view, Parker has established that
the prohibition on possession of marihuana in the Controlled
Drugs and Substances Act has deprived Parker of his right to
security of the person and right to liberty in a manner that does
not accord with the principles of fundamental justice.  Since
Parker was not charged with the cultivation offence, that offence
is not expressly before this court.  However, it is apparent from
these reasons and the reasons dealing with the cultivation
offence under the Narcotic Control Act that if the cultivation
provision had been before this court, I would hold that it too
infringes Parker’s s. 7 rights.  Since there is no legal source
of supply of marihuana, Parker’s only practical way of obtaining
marihuana for his medical needs is to cultivate it.  In this way,
he avoids having to interact with the illicit market and can
provide some quality control.
7.   Can any violations be saved by s. 1?
[191]     The onus was on the Crown to establish that the
violations of Parker’s rights could be saved under s. 1 of the
Canadian Charter of Rights and Freedoms.  The Crown did not
suggest that the violations could be saved by s. 1.  In any
event, many of the defects in the legislation that contribute to
the deprivations of Parker’s rights practically preclude the
legislation from meeting the proportionality test under s. 1.
[192]     In particular, one of the purposes of the law is to
prevent harm to the health of Canadians and the resulting costs
to society.  However, the broad nature of the marihuana
prohibition has the effect of impairing the health of Parker and
others who require it for medical purposes.  In this sense, the
legislation works in opposition to one of the primary objectives
and thus could be described as “arbitrary” or “unfair”:  R. v.
Keegstra (1990) 61 C.C.C. (3d) 1 (S.C.C.) per Dickson C.J.C. at
53 and per McLachlin J. (dissenting) at 114.
[193]     The only possible basis for holding that the provision
of the Controlled Drugs and Substances Act constituted a
reasonable limit is that s. 56 tempers the facial overbreadth of
the prohibition.  However, for the reasons of L'Heureux-Dubé J.
and McLachlin J. in Committee for the Commonwealth of Canada v.
Canada, the plenary discretion vested in the Minister precludes a
finding that this is a reasonable limit.  Thus, whether the s. 56
exemption is considered under s. 1 or s. 7, it cannot save the
legislation.
[194]     Finally, the broad prohibition means that the section
fails the minimal impairment test:  R. v. Heywood (1994), 94
C.C.C. (3d) 481 (S.C.C.) at 523.  There is no need to prosecute
people like Parker who require marihuana for medical purposes to
achieve any of the three objectives identified by the Crown:
preventing harm, international treaty obligations, and control of
the trade in illicit drugs.  Less intrusive means are available
to meet these objectives.  The Californian and Hawaiian
legislative schemes are but two examples of how these objectives
might be reconciled with the needs of patients requiring access
to marihuana.
8.   The appropriate remedy for the violations
[195]     The trial judge granted remedies through the
combination of s. 24(1) of the Charter and s. 52 of the
Constitution Act, 1982.  He stayed the charges against Parker and
declared that the marihuana possession and cultivation
prohibitions in both the Narcotic Control Act and the Controlled
Drugs and Substances Act be read down to exempt “persons
possessing or cultivating cannabis marihuana for the personal
medically approved use”.  The trial judge also ordered that the
plants seized from Parker on September 18, 1997 be returned to
him.
[196]     I cannot agree with the trial judge’s choices of
remedies.  First, in my view, it was inappropriate to require the
police to return the plants as there was no evidence that these
perishable items were still available.  I would strike out that
part of the judgment.
[197]     I also cannot agree that it was open to the trial judge
to grant a declaration in relation to the possession offence
under the Narcotic Control Act or the cultivation offence under
the Controlled Drugs and Substances Act.  The trial judge’s
jurisdiction to deal with the constitutional issues before him
was dependent upon the criminal charges in issue.  He did not
have the jurisdiction a superior court would have had on an
application for a declaration.  I would therefore also set aside
those parts of the judgment.
[198]     I also do not agree with the trial judge that it was
appropriate to read a medical exemption into the legislation.  In
this respect, I agree with the submissions of the Crown.  In
light of the leading decisions on remedy in Schachter v. Canada,
[1992] 2 S.C.R. 679, Corbiere v. Canada (Minister of Indian and
Northern Affairs), [1999] 2 S.C.R. 203 and Rodriguez, the Crown
submits that, should this court find a violation of s. 7 because
the legislation fails to provide adequate exemptions for medical
use, the “only available remedy” is to strike down those
provisions and suspend the finding of invalidity for a sufficient
period of time to allow Parliament to craft satisfactory medical
exemptions.
[199]     Since the federal Crown takes this position in
defending its own legislation, it is only necessary for me to
briefly indicate my reasons for reaching the same conclusion with
respect to the Controlled Drugs and Substances Act.  Since the
Narcotic Control Act has been repealed by Parliament, it is
unnecessary to strike down the offending provision.
[200]     In Schachter, Lamer C.J.C. extensively reviewed the
various remedies available to a court that finds legislation
violates a Charter provision.  Reading in is a remedial option
under s. 52 of the Constitution Act, 1982, which requires the
court to strike down any law that is inconsistent with the
Constitution, but only “to the extent of the inconsistency”.  The
purpose of reading in “is to be as faithful as possible within
the requirements of the Constitution to the scheme enacted by the
Legislature”:  Schachter at p. 700.  Reading in is also sometimes
required in order to respect the purposes of the Charter.
[201]     In Schachter, Lamer C.J.C. reviewed the factors to be
considered in determining whether or not reading in is an
appropriate remedy by reference to the factors developed by the
Court in R. v. Oakes, [1986] 1 S.C.R. 103.  Reading in is
particularly appropriate where the legislation fails because it
is not carefully tailored to be a minimal intrusion or it has
effects that are disproportionate to its purpose.  The defects in
the Controlled Drugs and Substances Act fall within this
rationale and thus reading in is a potential remedy.  Even so,
reading in will not be appropriate if “the question of how the
statute ought to be extended in order to comply with the
Constitution cannot be answered with a sufficient degree of
precision on the basis of constitutional analysis”:  Schachter at
p. 705.  To read in an exemption in such circumstances would
“amount to making ad hoc choices from a variety of options, none
of which was pointed to with sufficient precision by the
interaction between the statute in question and the requirements
of the Constitution.  This is the task of the legislature not the
courts”:  Schachter at p. 707.
[202]     In its factum, the Crown has listed a number of
problems with the reading in remedy adopted by the trial judge.
They include the following:
(a)  what constitutes “medically approved use”?
(b)  who may grant medical approval? on what basis? 
on whose onus? to what standard of proof?
(c)  given that this is a constitutional protection 
(i.e. the highest form of protection allowed by our 
law), what degree of illness is required to engage 
it? must it be life-threatening? chronically disabling?
disruptive? generally inconvenient? merely bothersome?
(d)  what quantities of marijuana may an authorized 
person possess? enough for one day? a week? a year? 
should there be a presumption that any amount in excess 
of immediate need is not covered by the exemption? If 
so, who decides what the threshold amount should be?
(e)  what quantities of marijuana may an authorized 
person cultivate? how much of the plant should be 
considered useable for the purpose of that 
determination? just the flowers? the flowers and the 
leaves? who decides?
(f)  does the exemption extend in any way to roommates, 
family members or caregivers? if an unauthorized 
individual cares for an otherwise ‘exempt’ plant while
its authorized owner is away, is that individual 
insulated from prosecution for cultivation? on what 
basis, if the exemption is personal?
[203]     I do not necessarily accept that all of these problems
necessarily flow from the remedy chosen by the trial judge.21  I
do accept, however, that the Crown has raised matters of
sufficient complexity that reading in is not an appropriate
remedy.  For these reasons, I agree with the Crown that the
prohibition on simple possession of marihuana in s. 4 of the
Controlled Drugs and Substances Act must be struck down.
[204]     I point out, however, that this is not a case like
Rodriguez where creating an exception might frustrate the purpose
of the legislation because adequate guidelines to control abuse
are difficult or impossible to develop.  Rather, refusing to read
in an exemption demonstrates a recognition of and respect for the
different roles of the legislature and the courts.  There is, in
my view, no question that a medical exemption with adequate
guidelines is possible.  The fact that such exemptions exist in
some states in the United States is testament to that.  However,
there are many options to consider and this is a matter within
the legislative sphere.  There is also a particular problem in
the case of marihuana because of a lack of a legal source for the
drug.  This raises issues that can only be adequately addressed
by Parliament.
[205]     There is one other factor that is also worth
considering. To avoid an undue intrusion into the legislative
sphere, any exemption crafted by a court should probably be the
minimum necessary to cure the constitutional defect.  However,
faced with the need to open up the Controlled Drugs and
Substances Act to address the constitutional defect, Parliament
has the resources to address the broader issue of medical use.
By way of example only, people without the means to grow
marihuana themselves may be dependent upon caregivers to obtain
the drug.  This is a complex matter that, while not necessarily
implicating Charter rights (although it may), is not something a
court is equipped to deal with.  Put another way, Parliament is
not bound to legislate to the constitutional minimum.  It can
adopt the optimal and most progressive legislative scheme that it
considers just.
[206]     Finally, I believe it is appropriate to sever the
marihuana possession prohibition from the other parts of s. 4.
That section is central to the control of many dangerous drugs
and there was no suggestion by any of the parties that severance
in this limited respect was inappropriate.
[207]     I also agree with the Crown that the declaration of
invalidity should be suspended to provide Parliament with the
opportunity to fill the void.  Such a declaration is required
where striking down a provision “poses a potential danger to the
public”:  Schachter at p. 715.  I would suspend the declaration
of invalidity for 12 months.
[208]     I do not accept the submissions of the intervener that
the appropriate remedy is a constitutional exemption for persons
requiring marihuana for medical purposes.  In Corbiere at p. 225,
the court held that the remedy of a constitutional exemption has
only been recognized in a very limited way, “to protect the
interests of a party who has succeeded in having a legislative
provision declared unconstitutional, where the declaration of
invalidity has been suspended”.22   Thus, Parker is entitled to a
constitutional exemption from the possession offence under the
Controlled Drugs and Substances Act during the period of the
suspended invalidity for possession of marihuana for his medical
needs.  I have also made it clear in these reasons that if the
cultivation offence under that Act were before this court, I
would have held that provision to be invalid.  I expect that the
authorities would not subject Parker to further prosecution under
that section in view of these reasons.
[209]     Finally, Parker is entitled to the personal remedies
granted to him by the trial judge under s. 24(1) of the Charter.
Thus, I would uphold the trial judge’s order staying the
proceedings for cultivation under the former Narcotic Control Act
and for possession under the Controlled Drugs and Substances Act.
DISPOSITION
[210]     Accordingly, I would vary the remedy granted by the
trial judge and declare the marihuana prohibition in s. 4 of the
Controlled Drugs and Substances Act to be invalid.  I would
suspend the declaration of invalidity for a period of twelve
months from the release of these reasons.  The respondent is
exempt from the marihuana prohibition in s. 4 of the Controlled
Drugs and Substances Act during the period of suspended
invalidity for possession of marihuana for his medical needs.  I
would set aside those parts of Sheppard  J.’s judgment reading in
a medical exemption into the former Narcotic Control Act and the
Controlled Drugs and Substances Act and ordering the return of
the plants seized in the September 1997 search.  In all other
respects, I would dismiss the Crown appeal.
RELEASED: JUL 31 2000                Signed: “M. Rosenberg J.A.
MAC                                  “I agree: M.A. Catzman J.A.”
                                     “I agree. Louise Charron J.A.”

 


                           APPENDIX I

            California Compassionate Use Act of 1996
11362.5.  (a)   This section shall be known and may be cited as
the Compassionate Use Act of 1996.
     (b)  (1)   The people of the State of California hereby find
and declare that the purposes of the Compassionate Use Act of
1996 are as follows:
(A)  To ensure that seriously ill Californians have the right to
     obtain and use marijuana for medical purposes where that medical
     use is deemed appropriate and has been recommended by a physician
     who has determined that the person’s health would benefit from
     the use of marijuana in the treatment of cancer, anorexia, AIDS,
     chronic pain, spasticity, glaucoma, arthritis, migraine, or any
     other illness for which marijuana provides relief.
(B)  To ensure that patients and their primary caregivers who
     obtain and use marijuana for medical purposes upon the
     recommendation of a physician are not subject to criminal
     prosecution or sanction.
(C)  To encourage the federal and state governments to implement
     a plan to provide for the safe and affordable distribution of
     marijuana to all patients in medical need of marijuana.
(2)  Nothing in this section shall be construed to supersede
     legislation prohibiting persons from engaging in conduct that
     endangers others, nor to condone the diversion of marijuana for
     nonmedical purposes.
(c)  Notwithstanding any other provision of law, no physician in
this state shall be punished, or denied any right or privilege,
for having recommended marijuana to a patient for medical
purposes.
(d)  Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall
not apply to a patient, or to a patient’s primary caregiver, who
possesses or cultivates marijuana for the personal medical
purposes of the patient upon the written or oral recommendation
or approval of a physician.
(e)  For the purposes of this section, “primary caregiver” means
the individual designated by the person exempted under this
section who has consistently assumed responsibility for the
housing, health, or safety of that person.
                            APPENDIX II                                 
                          STATE OF HAWAII
      A Bill for an Act relating to Medical Use of Marihuana
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1.  The legislature finds that modern medical research has
discovered a beneficial use for marijuana in treating or
alleviating the pain or other symptoms associated with certain
debilitating illnesses such as cancer, glaucoma, human
immunodeficiency virus, acquired immune deficiency syndrome,
multiple sclerosis, epilepsy, and crohn's disease.  There is
sufficient medical and anecdotal evidence to support the
proposition that these diseases and conditions may respond
favorably to a medically controlled use of marijuana.
     The legislature is aware of the legal problems associated
with the legal acquisition of marijuana for medical use.  However,
the legislature believes that medical scientific evidence on the
medicinal benefits of marijuana should be recognized.  Although
federal law expressly prohibits the use of marijuana, the
legislature recognizes that a number of states are taking the
initiative in legalizing the use of marijuana for medical
purposes.  Voter initiatives permitting the medical use of
marijuana have passed in California, Arizona, Oregon, Washington,
Alaska, Maine, and the District of Columbia.
     The legislature intends to join in this initiative for the
health and welfare of its citizens.  However, the legislature does
not intend to legalize marijuana for other than medical purposes.
The passage of this Act and the policy underlying it does not in
any way diminish the legislature's strong public policy and laws
against illegal drug use.
     Therefore, the purpose of this Act is to ensure that
seriously ill people are not penalized by the State for the use of
marijuana for strictly medical purposes when the patient's
treating physician provides a professional opinion that the
benefits of medical use of marijuana would likely outweigh the
health risks for the qualifying patient.
SECTION 2.  Chapter 329, Hawaii Revised Statutes is amended by
adding a new part to be appropriately designated and to read as
follows:
                            "PART    .
                                 
                     MEDICAL USE OF MARIJUANA
     §329-A  Definitions.  As used in this part:
"Adequate supply" means an amount of marijuana that is not more
than reasonably necessary to assure, throughout the projected
course of treatment, the uninterrupted availability of marijuana
for purposes of treating or alleviating the pain or other symptoms
associated with a qualifying patient's debilitating medical
condition or the treatment of such condition; provided that an
"adequate supply" shall be between 1 ounce and 10.5 ounces, but no
more than a sixty-day supply.
"Debilitating medical condition" means:
  (1)  Cancer, glaucoma, positive status for human
  immunodeficiency virus, acquired immune deficiency syndrome, or
  the treatment of these conditions;
  
  (2)  A chronic or debilitating disease or medical condition or
  its treatment that produces one or more of the following:
     (A)  Cachexia or wasting syndrome;
     
     (B)  Severe pain;
     
     (C)  Severe nausea;
     
     (D)  Seizures, including those characteristic of epilepsy; or
     
     (E)  Severe and persistent muscle spasms, including those
          characteristic of multiple sclerosis or crohn's disease;
          or
  (3)  Any other medical condition approved by the department of
  health pursuant to administrative rules in response to a request
  from a physician or qualifying patient.
"Marijuana" shall have the same meaning as "marijuana" and
"marijuana concentrate" as provided in sections 329-1 and 712-
1240.
"Medical use" means the acquisition, possession, cultivation, use,
distribution, or transportation of marijuana or paraphernalia
relating to the administration of marijuana to alleviate the
symptoms or effects of a qualifying patient's debilitating medical
condition.
"Physician"  or "treating physician" means a person who is
licensed under chapters 453 and 460.
"Primary caregiver" means a person, other than the qualifying
patient and the qualifying patient's physician, who is eighteen
years of age or older who has agreed to undertake significant
responsibility for managing the well-being of no more than three
qualifying patients at any one time with respect to the medical
use of marijuana.  In the case of a minor or an adult lacking
legal capacity, the primary caregiver shall be a parent, guardian,
or person having legal custody.
"Qualifying patient" means a person who has been diagnosed by a
physician as having a debilitating medical condition.
"Written certification" means the qualifying patient's medical
records or a statement signed by a qualifying patient's physician,
stating that in the physician's professional opinion, the
qualifying patient has a debilitating medical condition and the
potential benefits of the medical use of marijuana would likely
outweigh the health risks for the qualifying patient.
     §329-B  Medical use of marijuana; conditions of use.
(a)  Notwithstanding any law to the contrary, the medical use of
marijuana by a qualifying patient, or the furnishing of marijuana
for medical use by the qualifying patient's primary caregiver
pursuant to this chapter, shall be permitted only if:
     (1)  The qualifying patient has been diagnosed by a physician
     as having a debilitating medical condition;
     
     (2)  The qualifying patient's physician has certified in
     writing that, in the physician's professional opinion, the
     potential benefits of the medical use of marijuana would
     likely outweigh the health risks for the particular
     qualifying patient; and
     (3)  The amount of marijuana does not exceed an adequate
     supply.
(b)  Subsection (a) shall not apply to a qualifying patient under
the age of eighteen years, unless:
     (1)  The qualifying patient's physician has explained the
     potential risks and benefits or the medical use of marijuana
     to the qualifying patient and to a parent, guardian, or
     person having legal custody; and
     
     (2)  A parent, guardian, or person having legal custody
     consents in writing to:
          (A)  Allow the qualified patient's medical use of
          marijuana;
          
          (B)  Serve as the qualifying patient's primary
          caregiver; and
          
          (C)  Control the acquisition of the marijuana, the
          dosage, and the frequency of the medical use of
          marijuana by the qualifying patient.
(c)  The authorization for medical use of marijuana in this
section shall not apply to:
     (1)  Medical use of marijuana that endangers the health or
     well-being of another person;
     
     (2)  Medical use of marijuana:
          (A)  In a school bus, public bus, or any moving vehicle;
          
          (B)  In the workplace of one's employment;
          
          (C)  On any school grounds;
          
          (D)  At any public park, public beach, public recreation
          center, recreation or youth center; or
          
          (E)  Other place open to the public; and
     (3)  Use of marijuana by a qualifying patient, parent, or
     primary caregiver for purposes other than medical use
     permitted by this chapter.
     §329-C  Registration requirements.
(a)  The qualifying patient shall register with, and provide a
copy of the written certification to, the department of health
within ten working days of receipt of the written certification by
the treating physician.  The department of health shall issue to
the qualifying patient a registration certificate, and may charge
a reasonable fee, not to exceed $25.
(b)  Upon an inquiry by a law enforcement agency, the department
of health shall verify whether the particular qualifying patient
has registered with the department and may provide reasonable
access to the registry information for official law enforcement
purposes.
     §329-D  Insurance not applicable.  This part shall not be
construed to require insurance coverage for the medical use of
marijuana.
     §329-E  Protections afforded to a qualifying patient or
primary caregiver.
(a)  A qualifying patient or the primary caregiver may assert
medical use of marijuana as an affirmative defense to any
prosecution involving marijuana under this chapter or chapter 712;
provided that the qualifying patient or the primary caregiver
strictly complied with the requirements of this part.
(b)  No person shall be subject to arrest or prosecution for being
in the presence or vicinity of the medical use of marijuana as
permitted under this part.
     §329-F  Protections afforded to a treating physician.  No
physician shall be subject to arrest or prosecution, penalized in
any manner, or denied any right or privilege for providing written
certification for the medical use of marijuana for a qualifying
patient; provided that:
(1)  The physician has diagnosed the patient as having a
debilitating medical condition, as defined in section 329-A;
(2)  The physician has explained the potential risks and benefits
of the medical use of marijuana, as required under section 329-B;
and
(3)  The certification is based upon the physician's professional
opinion after having completed a full assessment of the patient's
medical history and current medical condition made in the course
of a bona fide physician-patient relationship.
     §329-G  Protection of marijuana and other seized property.
Marijuana and any property used in connection with the medical use
of marijuana shall not be subject to search and seizure.
Marijuana, paraphernalia, or other property seized from a
qualifying patient or primary caregiver in connection with claimed
medical use of marijuana under this part shall be returned
immediately upon the determination by a court that the qualifying
patient or primary caregiver is entitled to the protections of
this part, as evidenced by a decision not to prosecute, dismissal
of charges, or an acquittal; provided that law enforcement
agencies seizing live plants as evidence shall not be responsible
for the care and maintenance of such plants.
     §329-H  Fraudulent misrepresentation; penalty.
Notwithstanding any other law to the contrary, fraudulent
misrepresentation to a law enforcement official of any fact or
circumstance relating to the medical use of marijuana in order to
avoid arrest or prosecution under this part or chapter 712 shall
be a petty misdemeanor and subject to a fine of $500.
SECTION 3.  Section 453-8, Hawaii Revised Statutes, is amended by
amending subsection (a) to read as follows:
     "(a) In addition to any other actions authorized by law, any
     license to practice medicine and surgery may be revoked,
     limited, or suspended by the board at any time in a
     proceeding before the board, or may be denied, for any cause
     authorized by law, including but not limited to the
     following:
     
     (1)  Procuring, or aiding or abetting in procuring, a
     criminal abortion;
     
     (2)  Employing any person to solicit patients for one's self;
     
     (3)  Engaging in false, fraudulent, or deceptive advertising,
     including, but not limited to:
          (A)  Making excessive claims of expertise in one or more
          medical specialty fields;
          
          (B)  Assuring a permanent cure for an incurable disease;
          or
          
          (C)  Making any untruthful and improbable statement in
          advertising one's medical or surgical practice or
          business;
     (4)  Being habituated to the excessive use of drugs or
     alcohol; or being addicted to, dependent on, or a habitual
     user of a narcotic, barbiturate, amphetamine, hallucinogen,
     or other drug having similar effects;
     
     (5)  Practicing medicine while the ability to practice is
     impaired by alcohol, drugs, physical disability, or mental
     instability;
     
     (6)  Procuring a license through fraud, misrepresentation, or
     deceit or knowingly permitting an unlicensed person to
     perform activities requiring a license;
     
     (7)  Professional misconduct, hazardous negligence causing
     bodily injury to another, or manifest incapacity in the
     practice of medicine or surgery;
     
     (8)  Incompetence or multiple instances of negligence,
     including, but not limited to, the consistent use of medical
     service which is inappropriate or unnecessary;
     
     (9)  Conduct or practice contrary to recognized standards of
     ethics of the medical profession as adopted by the Hawaii
     Medical Association or the American Medical Association;
     
     (10) Violation of the conditions or limitations upon which a
     limited or temporary license is issued;
     
     (11) Revocation, suspension, or other disciplinary action by
     another state or federal agency of a license, certificate, or
     medical privilege for reasons as provided in this section;
     
     (12) Conviction, whether by nolo contendere or otherwise, of
     a penal offense substantially related to the qualifications,
     functions, or duties of a physician, notwithstanding any
     statutory provision to the contrary;
     
     (13) Violation of chapter 329, the uniform controlled
     substances act, or any rule adopted thereunder[;] except as
     provided in section 329-B;
     
     (14) Failure to report to the board, in writing, any
     disciplinary decision issued against the licensee or the
     applicant in another jurisdiction within thirty days after
     the disciplinary decision is issued; or
     
     (15) Submitting to or filing with the board any notice,
     statement, or other document required under this chapter,
     which is false or untrue or contains any material
     misstatement or omission of fact."
SECTION 4.  Section 712-1240.1, Hawaii Revised Statutes, is
amended to read as follows:
     "§712-1240.1  Defense to promoting.
     (1)  It is a defense to prosecution for any offense defined
     in this part that the person who possessed or distributed the
     dangerous, harmful, or detrimental drug did so under
     authority of law as a practitioner, as an ultimate user of
     the drug pursuant to a lawful prescription, or as a person
     otherwise authorized by law.
     
     (2)  It is an affirmative defense to prosecution for any
     marijuana-related offense defined in this part that the
     person who possessed or distributed the marijuana was
     authorized to possess or distribute the marijuana for medical
     purposes pursuant to part of chapter 329."
SECTION 5.  This Act shall not affect rights and duties that
matured, penalties that were incurred, and proceedings that were
begun, before its effective date.
SECTION 6.  If any provision of this Act, or the application
thereof to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of the
Act which can be given effect without the invalid provision or
application, and to this end the provisions of this Act are
severable.
SECTION 7.  In codifying the new sections added section 2, and
referred to in sections 3 and 4 of this Act, the revisor of
statutes shall substitute the appropriate section numbers for the
letters used in designating the new sections of this Act.
SECTION 8.  Statutory material to be repealed is bracketed.  New
statutory material is underscored.
SECTION 9.  This Act shall take effect upon its approval.
_______________________________
1    The parties also placed “fresh” evidence before this court.
For the most part, this evidence falls within the category of
legislative facts and, in my view, is properly admissible.  See
Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577
(S.C.C.) at 624-26.  The one category of evidence that may
constitute adjudicative facts is an affidavit from the
respondent’s mother setting out the respondent’s health since the
judgment.  The Crown objected to one paragraph of that affidavit
as hearsay and I have ignored that paragraph.
2    The reasons of McCart J. are reported at (1997), 9 C.R.
(5th) 349 (Ont. Ct. (Gen. Div.)).
3    I note that Howard Prov. Ct. J., who heard similar evidence
in R. v. Caine, [1998] B.C.J. No. 885 came to almost the same
conclusions as did McCart J.  The accused in Caine appealed from
that decision.  The British Columbia Court of Appeal heard that
appeal with another appeal raising the same issues.  A majority
of the court upheld the trial decisions in reasons cited as R. v.
Malmo-Levine 2000 BCCA 335.  I have made extensive reference to
this decision in my reasons in R. v. Clay.  Malmo-Levine does not
deal with the therapeutic use of marihuana.
4    The Crown objected to certain parts of the Morgan affidavit
that referred to material that could have been produced at trial.
I have not found it necessary to rely upon any of the objected-to
material.
5    The Crown submits that Mr. Rowsell is in error in this
respect and it would be possible for someone to obtain a licence
under the Regulations for the purposes of the programme.  The
Crown nevertheless concedes that no firm has been licensed to
produce and distribute marihuana.
6    The much more difficult question whether security of the
person would be engaged if the lack of access is due not to a
criminal sanction but government inaction is not before the court
and should be left to another day.  It is raised only in passing
in this case by the Minister’s s. 56 approval, which requires the
applicant to disclose the legal source for the marihuana.
7    The need to take into account state or societal interests
under s. 7, especially where the court is asked to conduct
substantive review of legislation, is discussed more fully in
this court’s decision in R. v. Pan (1999), 134 C.C.C. (3d) 1
(leave to appeal to S.C.C. granted January 27, 2000) at para. 177
– 187.
8    From R. v. Jones, [1986] 2 S.C.R. 284 at 304, per La Forest
J.
9    See R. v. Keegstra (1990) 61 C.C.C. (3d) 1 (S.C.C.) per
McLachlin J. dissenting at 114.
10    See the discussion of those issues in R. v. Malmo-Levine
supra, at para. 142-43.
11    In any event, the Constitution takes precedence over any
treaty obligations:  Attorney-General for Canada v. Attorney
General for Ontario and Others, [1937] A.C. 326 (P.C.).
12    Canada acceded to the Covenant on May 19, 1976 and it came
into force in Canada on August 19, 1976.
13    The Crown, of course, claims that the legislation already
contains sufficient exemptions.  In any event, if treaty
obligations are a matter more properly considered under s. 1, the
Crown did bear the burden of proof on that issue.
14    I will deal with the question of remedy, raised in the
passage quoted above, later in my reasons.  Suffice it to say
that I do not consider the defect in the legislation to be merely
an individual effect requiring simply a remedy under s. 24(1)
alone.
15    Subject to a possible s. 56 exemption discussed below.
16    The Association argues that the marihuana prohibition
discriminates on the basis of disability.
17    One of those people was Mr. Wakeford.
18    Presumably, into the illicit market.
19    Section 56 also gives the Minister the power to impose “such
terms and conditions” as he deems necessary.  It would thus be
possible for a Minister of Health to impose conditions that would
make the exemption illusory.  The fact that the present
application requires the applicant to name the source of his or
her supply gives some reason for concern when the government must
know that at present there is no legal source for marihuana in
Canada.
20    As Cory J. said in MacKay v. Manitoba (1989), 61 D.L.R.
(4th) 385 (S.C.C.) at 388, in light of the importance and impact
that some Charter decisions may have, “the courts have every
right to expect and indeed to insist upon the careful preparation
and presentation of a factual basis in most Charter cases”.
While the burden was on the respondent to demonstrate the
violation of s. 7, given the importance the Crown placed upon the
s. 56 exemption it would have been helpful if the Crown produced
expert evidence from the officials in Health Canada in charge of
the s. 56 programme.
21    I also do not accept all of the Crown’s submissions, based
on Schachter, for refusing the reading-in remedy.  For example,
the Crown argues that a medical exemption would undermine the
“comprehensive code” governing right of access to controlled
substances for medical purposes or would constitute judicial
intrusion into the very core of Parliament’s legislative
authority over criminal law to decide what conduct should be
criminalized.  This significantly overstates the issue.  The
Controlled Drugs and Substances Act already contains a
significant number of exemptions for medical use of drugs.  It is
obvious that absolute prohibition is not at the core of the power
to criminalize conduct.  The “comprehensive code” rationale for
refusing to read in is based on the theory that reading in would
so markedly change the legislation that it could not be safely
assumed that Parliament would have enacted the non-offending
provisions.  Given the various existing exemptions for medical
use of other more dangerous drugs, this theory hardly seems
credible.
22    Also see Lamer C.J.C. dissenting in Rodriguez at p. 577.
This part of his reasons was adopted by the court in Corbiere.