





CITATION:
R. v. Parker, 2011 ONCA 819



DATE: 201111222



DOCKET: C51187



COURT OF APPEAL FOR ONTARIO



Rosenberg, Sharpe and Juriansz JJ.A.



BETWEEN:



Her Majesty The Queen



Respondent (Respondent)



and



Terrance Parker



Applicant (Appellant)



Terrance Parker, in person

Jonathan Dawe, amicus curiae

James Gorham, for the respondent



Heard: November 7, 2011



On appeal from the judgment of Justice Michael Tulloch of the
          Superior Court of Justice dated September 30, 2009.



By The Court:



[1]

This appeal involves the dismissal of an application for return of seized
    marihuana pursuant to s. 24 of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. The appellants s. 24
CDSA
application was originally
    dismissed on December 7, 2007 by Clements J. of the Ontario Court of Justice. The
    appellant appealed Clements J.s decision to the Superior Court of Justice. Tulloch
    J. ruled that he had jurisdiction under s. 40 of the
Courts of Justice Act
to
    hear the appeal.  He subsequently dismissed the appeal on September 30, 2009. The
    appellant now appeals from the decision of Tulloch J.

[2]

The appellant argues that Clements J. erred in law for two reasons:

1.         The
    offences of production and possession of marihuana set out in ss. 7 and 4 of
    the
CDSA
were struck down in
R. v. Krieger
, 2000 ABQB 1012 and
R.
    v. Parker
(2000), 49 O.R. (3d) 481 [
Parker
(2000)], respectively.
    Parliament has not re-enacted these prohibitions.

2.         The
    decisions in
Sfetkopoulos v. Canada (A.G.)
, 2008 FC 33,
Sfetkopoulos
    v. Canada (A.G.)
,

2008 FCA 328

and
R. v. Beren
, 2009
    BCSC 429, invalidated the marihuana prohibitions retroactive to at least
    December 3, 2003.

[3]

The court also heard submissions as to whether the appellant had a right
    of appeal from the decision of Clements J. under s. 40 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43
.
For the following reasons,
    we are satisfied that the appellant did have a right of appeal, although not
    under the
Courts of Justice Act
.  We are also satisfied that Clements J.
    correctly determined that the appellant was not lawfully entitled to possess
    marihuana and that Tulloch J. correctly dismissed the appeal.

FACTS


Background

[4]

This appeal and the companion appeals that were argued at the same time
R.
    v. McCrady et al.
and
R. v. Maloney
, arise out of the continuing
    quest by this appellant and others to access marihuana for medicinal purposes. 
    In
Parker
(2000)
,
at para. 3,

the court briefly described
    this appellants plight in 2000:

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 marijuana he can
    substantially reduce the incidence of seizures. Since he has no legal source of
    marijuana, he has been growing it himself. On two occasions, the police
    searched his home and seized the marijuana. He was first charged with
    cultivating marijuana under the
Narcotic Control Act
. By the time of the
    second investigation, that Act had been repealed and he was charged with
    possession of marijuana under the new
Controlled Drugs and Substances Act.

[5]

At his trial in 1997, Parker defended the charges brought against him by
    arguing that the prohibition against marihuana in the former
Narcotic
    Control Act
, R.S.C. 1985, c. N-1 and the
CDSA
, infringed his rights
    to fundamental justice under s. 7 of the
Canadian Charter of Rights and
    Freedoms
. Both the trial court in reasons reported at (1997), 12 C.R. (5th)
    251, 48 C.R.R. (2d) 352, and this court, concluded that Parker requires marihuana
    to control his epilepsy and that the prohibition against marihuana infringed
    his rights under s. 7 of the
Charter
. At the time, there was no lawful
    means by which Parker could obtain and possess marihuana except pursuant to a special
    exemption under s. 56 of the
CDSA.

[6]

In
Parker
(2000), the court explained why the availability of
    such an exemption at the sole discretion of the Minister of Health was not an
    adequate response to Mr. Parkers circumstances. Pursuant to s. 52 of the
Constitution Act, 1982
, this court declared the prohibition against
    possession of marihuana in s. 4 of the
CDSA
to be invalid. The court
    suspended the declaration of invalidity for 12 months to allow time for
    Parliament to craft a legislative response. The court also granted Mr. Parker a
    personal remedy under s. 24 of the
Charter
temporarily exempting him
    from the possession prohibition for the period of suspended invalidity so that
    he could legally possess marihuana for his medical needs. For reasons set out
    in
Parker
(2000), this court did not deal with the production provision
    of the
CDSA.

[7]

In response to
Parker
(2000), the federal government enacted the
Medical
    Marihuana Access Regulations
, S.O.R./2001-227, which came into force on
    July 30, 2001, one day before the suspension of invalidity expired. The
MMAR
created a process for gaining authorization to possess marihuana (ATP) for
    a medical purpose and a process for ATP holders to obtain a license to produce
    for personal use or to permit a designated person to grow marihuana on their behalf.

[8]

At the same time that the
Parker
(2000) case was working its way
    through the courts of this province, a similar case was being heard in Alberta.
    In
Krieger
, the accused challenged both the production prohibition under
    the
CDSA
and the prohibition against possession for the purpose of
    trafficking. In December 2000, Acton J. struck down the production prohibition
    in s. 7 of the
CDSA
as it applied to marihuana.  He did not strike down
    the possession for the purpose prohibition.  Acton J. stayed his declaration of
    invalidity for one year, just as this court had in
Parker
(2000). In
    November 2001, the Alberta Court of Appeal extended the stay until further
    order of that court. In March 2003, the Alberta Court of Appeal dismissed the
    Crown appeal from the order of Acton J., in reasons reported at 2003 ABCA 85. So
    far as we are aware, that court has never made a further order respecting the
    stay originally imposed by Acton J.

[9]

To return to Mr. Parkers interaction with the government and medicinal
    use of marihuana. The personal exemption granted to Mr. Parker by this court from
    the possession of marihuana offence expired July 31, 2001. On August 8, 2001, he
    requested a temporary exemption from Health Canada to allow him time to comply
    with the
MMAR
by applying for an ATP. Health Canada initially granted
    the appellant a six-month temporary exemption on September 14, 2001. When the
    appellants first exemption expired Health Canada granted him a series of
    subsequent exemptions, the last of which expired May 31, 2004.

[10]

On March 12, 2002, Mr. Parker brought an application to the Superior
    Court of Justice seeking an order granting him an ongoing personal exemption
    from the prohibition against possession of marihuana. At the core of this new
    litigation was the allegation that the
MMAR
fail to provide individuals
    who have a serious medical need to use marijuana with a legal source and safe
    supply of their medicine. Lederman J. heard the appellants application
    together with applications in the matter of
Hitzig v. Canada
. On January
    9, 2003, in reasons reported at 171 C.C.C. (3d) 18, Lederman J. declared that
    the
MMAR
were constitutionally invalid and of no force and effect. He
    declined to attempt to fix the constitutional problem by reading in to the
MMAR
a legal means of accessing marihuana for those who required marihuana for
    medical purposes. Justice Lederman suspended his declaration of invalidity for
    6 months. He did not declare the marihuana prohibition in the
CDSA
to be
    unconstitutional.

[11]

On appeal, this court determined that the
MMAR
were
    constitutionally defective insofar as they did not provide for reasonable
    access to a legal source of supply of marihuana for medical purposes. This
    court brought the
MMAR
into compliance with the
Charter
by
    striking down s. 41(b) (which prohibited a licensed producer from growing for
    more than one authorized-to-possess holder) and s. 54 (which prohibited more
    than three licensed producers from producing in common). The
MMAR
were then
    declared constitutional and s. 4 of the
CDSA
was declared to be
    constitutional as well. As this court said in one of the companion cases to
Hitzig
,
R. v. J.P.
(2003), 67 O.R. (3d) 321, at para. 33:

There was no need to amend or re-enact s. 4 of the
CDSA
to address the constitutional problem in
Parker
. That problem arose from
    the absence of a constitutionally adequate medical exemption. As our order in
Hitzig
demonstrates, the prohibition against possession of marihuana in s. 4 is in
    force when there is a constitutionally acceptable medical exemption in force.

[12]

In response to
Hitzig
,

the federal government passed the
Regulations
    Amending the Marihuana Medical Access Regulations
,

SOR/2003-387. A
    new provision was added to Part IV of the
MMAR
which enabled the
    Governments supply of dried marihuana to be shipped directly to ATP holders. Sections
    41(b) and 54 were re-enacted in their original form as sections 41(b.1) and
    54.1. As is apparent, the government believed that the way to remedy the
    constitutional deficiency identified by this court in
Hitzig
was not to
    make it easier for individuals to grow marihuana, but rather to make available
    a government supply of marihuana to persons found to be eligible under the
MMAR
programme. Whether or not this was an adequate response has been a source of
    litigation since 2003.

[13]

It is apparent from his submissions in this court, that the appellant
    views the
MMAR
programme as inadequate and views medical practitioners
    with suspicion. Medical practitioners have a crucial role under the
MMAR
.
    Following
Hitzig
,

the appellant made minimal efforts to comply with
    the
MMAR
. The appellant admitted that he has not been examined by a
    medical specialist since 1997. The appellant was aware that his exemption from
    the possession prohibition would expire in May 2004. In February 2004 he called
    Health Canada and said that he refused to seek a doctor to sign his ATP
    application. The appellant expressed a fear of medical mistreatment and
    objected to the
MMAR
requirement that he provide medical authorization:
    Well I am upset...As you see, Ive been kicked out of school, college, jobs,
    got these seizures, and now, Ive got to go back to these  these monsters for
    doctors and get permission that they wont provide me. I mean Im sorry, but
    this is disgusting.

The seizure of Marihuana

[14]

In April, 2006 the appellant was notified that a package of marihuana
    addressed to him had been seized by Canada Post and turned over to Peel
    Regional Police. By notice of application dated June 2, 2006 he applied to the
    Ontario Court of Justice in Brampton for an order under s. 24 of the
CDSA
directing
    the return of this seized marihuana. It appears that the police did not lay any
    charges against the appellant as a result of the marihuana seizure.

The decision of Clements J.  Ontario Court of Justice

[15]

The sole issue before Clements J. was whether the appellant was lawfully
    entitled to possess the marihuana seized by Canada Post. The appellant argued
    that he was lawfully entitled to possess because the constitutional exemption
    granted in
Parker
(2000) was still valid, thus compliance with the
MMAR
was not required. In addition, the combined effect of
Parker
(2000),
Hitzig
, and
Krieger
was that the prohibition against possession
    of marihuana had been repealed.

[16]

Clements J. ruled that the appellant was not lawfully entitled to
    possess marihuana. The
MMAR
and s. 4 of the
CDSA
were
    constitutionally valid. The appellant was not exempt from the application of
    the
MMAR
or compliance with the
CDSA
. Thus, in the absence of an
    ATP the appellant was not lawfully entitled to possess. Clements J. found the
    record insufficient to determine whether physician co-operation with the
MMAR
had dropped to the point that the scheme was ineffective. The s. 24
CDSA
application for return of a controlled substance was dismissed.

The decision of Tulloch J.  Superior Court of Justice

[17]

The appellant served a notice of application on March 20, 2008,
    returnable March 28, 2008. The application sought to overturn the order made by
    Clements J. Tulloch J. ruled that the Superior Court had jurisdiction to hear
    the matter, pursuant to the summary conviction appeal provisions in the
Courts
    of Justice Act
, s. 40.  Tulloch J. ruled that Clements J. correctly held
    that the case law relied on by the appellant did not demonstrate that he was
    exempt from compliance with the
MMAR
. It was also not an error to refuse
    to consider the appellants claim of lack of physician co-operation. The appeal
    was dismissed on September 30, 2009.

THE ISSUES ON APPEAL

[18]

There are two questions before the court on this appeal. The first
    concerns the proper route of appeal from an order made under s. 24
CDSA
.
     In our view, no appeal lies under the
Courts of Justice Act
. The
    appellant did, however, have a right to review the decision of Clements J. by
    way of
certiorari.
The second question considers whether or not the
    appellant is legally entitled to possess marihuana. The short answer to the
    second question is no. Clements J. correctly determined that the appellant was
    not lawfully entitled to possess marihuana and Tulloch J. correctly
    dismissed the appeal.

The Right of Appeal/Review of a s. 24 Order

[19]

The court received helpful submissions from both Crown counsel and Mr. Dawe
    who was appointed as
amicus
counsel to argue the jurisdiction question. Tulloch
    J. held that the Superior Court had jurisdiction to hear the matter, pursuant
    to the summary conviction appeal provisions in the
Courts of Justice Act
,
    s. 40.
Amicus
counsel and Crown counsel agree that Tulloch J. erred in
    reaching this conclusion, but that the error has no effect on this courts
    jurisdiction to hear the appeal. We agree with counsel that the
Courts of
    Justice Act
had no application. While the interplay between federal and
    provincial jurisdictions in drug cases can be problematic, we are satisfied
    that the correct characterization of a s. 24 application is that it flows out
    of Parliaments criminal law power. Accordingly, provincial rights of appeal
    have no application: see
R. v. Malmo-Levine
(2003), 2003 SCC 74, [2003]
    3 S.C.R. 571;
Kourtessis v. Minister of National Revenue
, [1993] 2
    S.C.R. 53,
R. v. Meltzer
, [1989] 1 S.C.R. 1764 and
Knox Contracting
    Ltd. v. Canada
, [1990] 2 S.C.R. 338.

[20]

Amicus
 principal position is that an application under s. 24 of
    the
CDSA
can be appealed to the Superior Court of Justice under s. 830
    of the
Criminal Code.
Alternatively, he argues that
certiorari
is available to review the decision. The Crown argues that s. 24 of the
CDSA
may not be appealed under the summary conviction provisions in Part XXVII
    of the
Criminal Code,
and that the proper route of review is through an
    application for
certiorari.
If the route of review is under s. 830, a
    further appeal lies to this court, with leave, under s. 839 of the
Criminal
    Code.
If the route of review is through
certiorari
, the route to
    this court is by way of appeal as of right under s. 784(1) of the
Criminal
    Code
.

[21]

In one sense, determination of the appropriate outcome for review has no
    practical implication for the party seeking to review the s. 24 decision.
    Section 830 provides for an appeal from, among other things, a conviction,
    judgment, or other final order or determination of a summary conviction court
    on questions of law or jurisdiction. The same grounds for review would be
    available on an application for
certiorari.
On the other hand, we think
    that the right of review should be clarified so that litigants know how to
    proceed in the future.

[22]

Despite Mr. Dawes very persuasive submissions, we are satisfied that
    the right of review is through
certiorari.
While s. 830 appears to have
    a wide reach because of the broad definition of proceedings in s. 785, when that
    section and s. 830 are considered in context of the other provisions of Part
    XXVII, it is apparent that the s. 830 appeal is directed to orders made by a
    judge or justice acting as a summary conviction court. A judge or justice
    acting under s. 24 of the
CDSA
is not acting as a summary conviction
    court.  There is little, if any, disadvantage to a party seeking to review a s.
    24 order having to apply for
certiorari
rather than proceeding by way of
    appeal.  In this province, the reviewing court is the same, the Superior Court
    of Justice. The grounds of review are also the same and, one advantage to a
    party is that an appeal lies to this court as of right. Finally, while hardly
    conclusive of the jurisdiction issue, we note that similar orders under the
    former
Narcotic Control Act
were reviewed by way of
certiorari
,
    not by way of appeal: see
R. v. Largie
(1981), 63 C.C.C. (2d) 508 (Ont.
    C.A.) and
R. v. Gombosh Estate
(1982), 1 C.C.C. (3d) 323 (Ont. H.C.J.),
    [affirmed (1983), 3 C.C.C. (3d) 575, reversed [1986] 1 S.C.R. 415, without
    reference to the jurisdiction issue].

THE SUBSTANTIVE ARGUMENTS

1.         The prohibition against possession of marihuana
    has not been repealed

[23]

The appellant argues that the combined effect of
Parker
(2000)

and
Hitzig
is that all marihuana offences have been completely
    repealed. This argument is based on a misreading of the law. The critical
    passage of this courts decision in
Hitzig v. Canada
, 177 C.C.C. (3d)
    449

states, at para. 170:

In
R. v. Parker, supra,
this court declared
    the prohibition invalid as of July 31, 2001 if by that date the Government had
    not enacted a constitutionally sound medical exemption. Our decision in this
    case confirms that it did not do so. Hence the marihuana prohibition in s. 4
    has been of no force or effect since July 31, 2001. Since the July 8, 2003
    regulation did not address the eligibility deficiency, that alone could not
    have cured the problem. However, our order has the result of
    constitutionalizing the medical exemption created by the Government. As a result,
the marihuana prohibition in s. 4 is no longer inconsistent with the
    provisions of the Constitution.
Although Parliament may subsequently choose
    to change it,
that prohibition is now no longer invalid, but is of full
    force and effect
. Those who establish medical need are simply exempted from
    it. This consequence removes the cloud of uncertainty from the marihuana
    prohibition in s. 4 of the
CDSA
 a cloud which we were told in argument
    has created very considerable confusion for courts and law enforcement agencies
    alike... [Emphasis added.]

[24]

In
R. v. Turmel
(2003), 231 D.L.R. (4th) 190, released
    concurrently with
Hitzig
and
J.P.
,

this court held that
Parker
(2000) did not have the effect of deleting marihuana from Schedule II of the
CDSA
,
    at para. 6:

The declaration of invalidity made by this court in
Parker, supra
, does not delete marihuana from Schedule II of the
CDSA
.
    It simply declares that the reference to marihuana in Schedule II is of no
    force or effect for the purposes of the possession charge in s. 4 of the
CDSA
.
    The declaration does not extend to any other section of the
CDSA
. In
    particular, it does not diminish the effect of the listing of marihuana in
    Schedule II for the purposes of s. 5(2) of the
CDSA
.

[25]

Following
Hitzig
and
Turmel
(2003), this court has
    repeatedly confirmed that the marihuana offences in the
CDSA
remain in
    full force. See for example
R. v. Turmel
, 2007 ONCA 133, at para. 2;
R.
    v. Real Martin
(2010, unreported, Ont. C.A. Docket C50273), at paras. 6-8;
    and
R. v. Ethier
, 2011 ONCA 588, at paras. 3-4.

[26]

Clements J. properly rejected the appellants argument as a reason why
    he should be considered lawfully entitled to possess marihuana. Tulloch J. was
    correct to find that Clements J. made no error of law in this respect.

The order of Pitt J. does not assist the appellant

[27]

On March 15, 2002, Pitt J. of the Superior Court of Justice ordered that
    the constitutional exemption granted to the appellant following
Parker
(2000)

be extended until such time as the government has complied with the Courts
    ruling. The appellant argues that this order entitles him to lawfully possess marihuana.
    However, Chapnik J. set aside Pitt J.s order on April 19, 2002(see [2002] O.J.
    No. 1503). The appellant appealed Chapnik J.s decision and this court found
    that she made no error when she set aside the order of Pitt J (see [2003] O.J.
    No. 3874). Thus, the March 15, 2002 order of Pitt J. is of no assistance to the
    appellant.

Sfetkopoulos
and
Beren
do
    not assist the appellant

[28]

Sfetkopolous
was a civil application for declaratory relief in
    the Federal Court. Strayer J. found that the
MMAR
still did not
    adequately address the issue of lawful supply first canvassed in
Hitzig
.
    He declared s. 41(b.1) of the
MMAR
(which prohibited the holder of a
    production license from growing for more than one ATP-holder) to be invalid.

[29]

R. v. Beren
involved a prosecution for production and trafficking
    in marihuana. Koenigsberg J. of the British Columbia Supreme Court relied on
Sfetkopolous
and held that ss. 41(b.1) and 54.1 of the
MMAR
infringed s. 7 of the
Charter
.
    However, the defendants were found guilty as the individuals they grew for, and
    sold to, did not hold ATPs. As she said at para. 136:

In relation to the charges against Mr. Beren, the
    Crown, having proved beyond a reasonable doubt that Mr. Beren was producing and
    trafficking in marihuana for the purpose of supplying a compassion club, which
    in turn was selling the marihuana to most of its members who did not have ATPs,
    and thus were not licensed to possess,
which parts of the MMAR I have found
    to be valid
,
is guilty on both counts. [Emphasis added.]

[30]

The appellant argues that by analogy to
Hitzig
and
J.P.
,
Sfetkopolous
and
Beren
have the effect of invalidating all marihuana offences
    retroactively from December 3, 2003, when ss. 41(b.1) and 54.1 of the
MMAR
were
    enacted, to March 31, 2010 when section 41(b.1) was amended and s. 54.1 was
    repealed. This argument fails for two reasons.

[31]

First, no provision of the
CDSA
was found to be invalid in
Beren
or
Sfetkopolous
. Without a finding of invalidity the marihuana
    offences remain in force. It was the combination of the declaration of the
    invalidity of s. 4 of the
CDSA
in
Parker
(2000),

and the
    finding of constitutional invalidity of the
MMAR
in
Hitzig
,

that
    resulted in the period of invalidity of the possession offence between July 31,
    2001 and October 7, 2003. When the constitutional deficiencies in the
MMAR
were
    remedied by this court the declaration of invalidity in
Parker
(2000)

no longer had any effect. The fact that the government re-enacted ss. 41(b)
    and 54, when it revised the
MMAR
in response to
Hitzig
, did not
    retroactively resurrect the effect of the
Parker
(2000) decision
    striking down the prohibition.

[32]

The declaration of invalidity in
Parker
(2000)

does not
    survive indefinitely, waiting to be invoked whenever problems are identified
    with the constitutional validity of a provision of the
MMAR
.  A finding
    of invalidity would depend on a fresh finding of invalidity with respect to the
    marihuana offences in the
CDSA
.

This was not the conclusion in
    either
Beren
or
Sfetkopolous
. Rather,
Beren
upheld the
    production and trafficking offences as they relate to persons who do not have
    ATPs under the
MMAR
. The appellant is similarly without an ATP. Thus, at
    the time the appellant brought his application under s. 24, he was not lawfully
    entitled to possess marihuana. There is also no evidence put before this court
    that the appellant is entitled, at present, to lawfully possess marihuana.

2.         There is no evidence regarding physician
    participation under the
MMAR

[33]

The appellant asserts that only one in 60 Ontario doctors participate in
    the medical marihuana regime, making the possibility of obtaining an exemption
    under the
MMAR
illusory. A similar argument challenging the
    constitutionality of the
MMAR
based on a lack of physician co-operation
    was raised in oral submissions before Clements J. Clements J. dismissed the
    argument on the grounds that there was no evidentiary record before him to
    support the appellants claim.

[34]

No court can determine whether or not this argument has merit in the
    absence of relevant information. Clements J. was correct to refuse to consider
    the appellants constitutional challenge in the absence of a proper evidentiary
    record. Tulloch J. properly concluded that Clements J. did not err with respect
    to this issue.  We note that this issue was decided by Taliano J. in
R. v.
    Mernagh
, 2011 ONSC 2121, on an extensive factual record, but his order has
    been stayed pending appeal.

DISPOSITION

[35]

The appellant has not demonstrated that he was lawfully entitled to
    possess marihuana. The merit of the physician participation argument cannot be
    properly assessed on the record. Clements J. did not err in law and Tulloch J.
    correctly dismissed the appeal.

Signed:           M. Rosenberg J.A.

Robert J. Sharpe J.A.

R. G. Juriansz J.A.

RELEASED:  MR DECEMBER 22, 2011



