Synopsis of Her Majesty the Queen v. Terrance Parker
On October 8, 1999, a panel of the Ontario Court of Appeal, composed of Justices Catzman, Charron and Rosenberg considered a constitutional challenge to the marihuana prohibitions in the former Narcotic Control Act ("NCA") and the Controlled Drugs and Substances Act ("CDSA") in the context of the medical use of marihauna. On December 10, 1997, the trial judge, Sheppard J. granted a stay of proceedings brought against Terrance Parker for cultivating marihuana contrary to the NCA and for possession of marihauna contrary to the CDSA. The Crown appealed. The unanimous Court of Appeal upholds the trial judge's decision to stay the charges against Parker and dismisses that part of the Crown's appeal.
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 smoking marihuana substantially reduces 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 NCA. By the time of the second investigation, that Act had been repealed and he was charged with possession of marihuana under the new CDSA.
The former NCA and the CDSA prohibit the possession and cultivation of marihuana. Both statutes, however, 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. However, no drug company has applied for a licence to sell marihuana or CBD, which is one of the most promising active ingredients in marihuana for controlling epileptic seizures. As a result, CBD is not available in Canada.
Parker argued that the prohibition on the cultivation and possession of marihuana is unconstitutional. He claimed that the legislation infringes his rights as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms (i.e. 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 of the marihuana laws, he faces the threat of imprisonment to keep his health. A statute that has this effect does not comport with fundamental justice, according to Parker. At trial, he led a great deal of scientific and other evidence to demonstrate 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.
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, which is a synthetic form of THC (another active ingredient in marihuana).
At trial, Sheppard J. concluded that Parker requires marihuana to control his epilepsy and that the prohibition against marihuana infringes his rights under s. 7 of the Charter. Sheppard J. stayed the cultivation and possession charges. 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”.
On appeal, the Crown argued that the trial judge made a factual error in finding that Parker requires marihuana for medical purposes. The Crown also argued that the legislation is valid and that there are legal means by which Parker can obtain marihuana. It said 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 argued that Parker could have applied for a special exemption from the Minister of Health under s. 56 of the CDSA. It pointed to fresh evidence that the Minister has granted such exemptions to other persons who need marihuana for therapeutic purposes. Finally, the Crown claimed that the remedy granted by the trial judge was wrong and he should not have, in effect, amended the legislation, as that is a matter for Parliament.
Justice Rosenberg, writing for the court, concludes that the trial judge was right in finding that Parker needs marihuana to control the symptoms of his epilepsy and also 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, where the court struck down the abortion provisions of the Criminal Code, and Rodriguez v. British Columbia (Attorney General), where the court upheld the assisted suicide offence in the Criminal Code, this court concludes that the prohibition on possessing marihauna in the CDSA has deprived Parker of his right to security of the person and his right to liberty in a manner that does not accord with the principles of fundamental justice. If the cultivation prohibition of the CDSA had been before the court, the court would also have held that it infringes Parker’s s. 7 rights. The possibility of an exemption under s. 56 that is dependent upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice.
The trial judge’s decision to stay the charges against Parker is upheld. However, the court disagreed with Sheppard J.’s remedy of reading in a medical use exemption into the legislation. This is a matter for Parliament. Accordingly, the prohibition on the possession of marihuana in the CDSA is declared to be of no force and effect. That declaration of invalidity is suspended 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 is, therefore, entitled to a personal exemption from the possession offence under the CDSA for possessing marihuana for his medical needs. Since the NCA has already been repealed, there is no need to declare it unconstitutional. If necessary, the court would have found that Parker was entitled to a personal exemption from the cultivation offence for his medical needs.