





CITATION:
R. v. McCrady, 2011 ONCA 820



DATE: 20111222



COURT OF APPEAL FOR ONTARIO



Rosenberg, Sharpe and Juriansz JJ.A.



BETWEEN:                                                                                       DOCKET:
          C52549



Her Majesty The Queen



Respondent



and



Robert Christopher McCrady

On appeal from
          conviction entered by Justice R. W. Lalande of the Ontario Court of Justice,
          dated July 9, 2010.





BETWEEN:                                                                                       DOCKET:
                C52898



Her Majesty The Queen



Respondent



and



Wayne William Hearn



Appellant

On appeal
                from conviction entered by Justice S. Fuerth of the Ontario Court of
                Justice dated October 25, 2010.

BETWEEN:                                                                           DOCKET:
                53096





Her Majesty The Queen



Respondent



and



Debra McIntyre



Appellant

On appeal
          from an order of Justice Drew S. Gunsolus of the Superior Court of Justice
          dated December 9, 2010.





BETWEEN:                                                                           DOCKET:
          52007



Her Majesty The Queen



Respondent



and



Gary Pallister



Appellant

On appeal
          from the order of Justice Terrance OConnor of the Superior Court of Justice
          dated March 26, 2010.






BETWEEN:                                                                           DOCKET:
          C52961

Her
          Majesty The Queen







Respondent



and



Mark
          MacDonald



Appellant



On appeal from the order of Justice Cory Gilmore of the Superior Court of
    Justice dated October 27, 2010.

Robert McCrady, in
    person

Wayne William Hearn,
    in person

Debra McIntyre, in
    person

Gary Pallister, in person

Mark MacDonald, in
    person

Kevin Wilson, for the
    respondent

By The Court:

OVERVIEW

[1]

These appeals involve five appellants who have been charged and, in some
    cases, convicted of marihuana related offences contrary to the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19. The appellants have been
    frustrated by the operation of the
Marihuana Medical Access Regulations
,
    S.O.R./2001-227 and argue that the offences with which they have been charged have
    been judicially repealed. The reasons in this appeal are being released at the
    same time as the reasons in the companion cases of
Parker
and
Maloney.

[2]

The appellants McCrady and Hearn appeal from convictions for marihuana related
    offences.  The appellant McCrady was convicted of possession of marihuana contrary
    to s. 4(1) of the
CDSA
by Lalande J. of the Ontario Court of Justice on
    July 19, 2010. The appellant Hearn pleaded guilty to production of marihuana
    contrary to s. 7(1) of the
CDSA
in the Ontario Court of Justice on July
    9, 2010.

[3]

The appellants Pallister and McIntyre currently face charges for
    production and possession for the purpose of trafficking, and production and
    simple possession, respectively. The appellant MacDonald was charged with
    possession for the purpose of trafficking in December 2008. Those charges were
    stayed in December 2010. Pallister, McIntyre and MacDonald each seek orders
    prohibiting prosecution for marihuana related offences under the
CDSA
and

staying all marihuana charges as an abuse of process. They also seek
    to have the Crown cited for contempt for continuing to prosecute marihuana
    offences. Finally, they seek to expunge the criminal records of all people
    convicted of marihuana offences.

[4]

We recognize the frustration expressed by each of the appellants about the
MMAR
. However, the marihuana offences set out in the
CDSA
have
    not been repealed and were in force when the appellants McCrady and Hearn were
    convicted. The remedies sought by the appellants Pallister, McIntyre and
    MacDonald are not available on this record. Accordingly, all the appeals are
    dismissed.

FACTS

(1)       The Appellant McCrady

[5]

In October 2008, McCrady submitted an application to possess and grow
    marihuana pursuant to the
MMAR
. The application was signed by his
    medical doctor. Health Canada processed the application six months later, in
    April 2009.  On February 20, 2009, before the application was processed,
    McCrady was charged with possession and possession for the purpose of
    trafficking contrary to ss. 4 and 5 of the
CDSA
. The amount was 106
    grams, or just under four ounces. On July 19, 2010, he was acquitted of
    possession for the purpose and convicted of simple possession. McCrady was
    sentenced to 12 months of probation and a $250 fine.

(2)       The Appellant Hearn

[6]

On July 9, 2010, Hearn pleaded guilty to production of
cannabis
contrary to s. 7 of the
CDSA
. The offence occurred on April 22, 2009 and
    involved 69 plants. On October 25, 2010 Hearn was sentenced to a $500 fine.

(3)       The Appellant Pallister

[7]

It is alleged that on October 2, 2009, police executed a
CDSA
search
    warrant at a residence in Thornbury, Ontario and seized approximately 450
cannabis
plants, along with a quantity of cannabis. The appellant Pallister was charged
    with production of
cannabis
, possession of
cannabis
and
    possession for the purpose of trafficking, together with several co-accused. The
    charges were set to be heard by the Superior Court of Justice on November 29,
    2011.  While his charges were still before the Ontario Court of Justice,
    Pallister brought an application before the Superior Court for declaratory
    relief with respect to the validity of the offences. On March 26, 2010,
    OConnor J. dismissed the application. Pallister appeals from OConnor J.s
    decision.

(4)       The Appellant McIntyre

[8]

It is alleged that on January 7, 2010, the police executed a
CDSA
search
    warrant at a residence in the Township of Douro-Dummer and seized three pounds
    of marihuana and 1383
cannabis
plants. McIntyre was charged with
    production of
cannabis
and possession of
cannabis
. Those charges
    are still before the courts. McIntyre brought an application before the
    Superior Court of Justice for declaratory relief with respect to the validity
    of the offences with which she is charged. Gunsolus J. dismissed the
    application on December 9, 2010. McIntyre appeals that decision.

(5)       The Appellant MacDonald

[9]

It is alleged that on December 8, 2008, the police executed a
CDSA
search
    warrant at a residence in Otonabee-South Monaghan Township and seized a large
    quantity of
cannabis
. The appellant MacDonald was charged with
    possession of
cannabis
for the purpose of trafficking. MacDonald brought
    an application before the Superior Court of Justice seeking declaratory relief
    with respect to the validity of the offence. On October 27, 2010, Gilmore J.
    dismissed the application. On December 8, 2010, the charge against MacDonald
    was stayed. MacDonald appeals from Gilmore J.s decision.

ISSUES ON APPEAL

[10]

The appellants McCrady and Hearn appeal their convictions. They raise
    the following issues:

(1)       Their
    charges should have been quashed, as marihuana is no longer a controlled
    substance.

(2)       Their
    charges should have been judicially stayed, as marihuana no longer should be a
    controlled substance.

[11]

The appellants Pallister, MacDonald and McIntyre raise the following
    issues respecting marihuana offences:

(1)       The
    combined effect of the decisions of the Ontario Court of Appeal in
R. v.
    Parker
(2000), 49 O.R. (3d) 481,

[
Parker
(2000)];
Hitzig
    v. Canada
(2003), 177 C.C.C. (3d) 449

(Ont. C.A.)
,
and
R.
    v. J.P.
(2003), 67 O.R. (3d) 321

is the repeal of the marihuana
    prohibitions. This deemed repeal has never been remedied.

(2)       The
    decision in
R. v. Krieger
, 2000 ABQB 1012 is deemed to have repealed the
    marihuana production offence in s. 7 of the
CDSA
.

(3)       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

have invalidated the marihuana prohibition retroactive to at least December
    3, 2003.

STANDING

[12]

The Crown challenges the standing of the appellants Pallister, McIntyre
    and MacDonald to obtain the broad forms of relief they sought in their notices
    of application. It is open to Pallister and McIntyre to defend the criminal
    charges brought against them by challenging the constitutional validity of the
    laws under which their charges are brought. The charges against MacDonald have already
    been withdrawn, thus he no longer has standing for this type of argument. The
    standing of Pallister, McIntyre and MacDonald to seek the broader forms of
    relief such as prohibiting prosecution of marihuana offences would depend upon
    whether they should be given public interest standing in accordance with the
    test set out in
Canadian Council of Churches v. Canada
,[1992] 1 S.C.R.
    236.  We have decided not to address the standing issue because we are satisfied
    that their claims can be disposed of by dealing with the issues raised on the
    merits. Their claims for relief all hinge on the theory that the marihuana
    prohibitions in the
CDSA
have not been in effect since August 1, 2001,
    what the appellants refer to as Terry Parker Day. For the reasons developed
    below, that argument has no merit. While the marihuana possession prohibition
    was not in force from July 31, 2001 to October 7, 2003 as a result of the
    combined effect of
Parker
(2000) and
Hitzig
, that offence as well
    as the production offence in the
CDSA
, have been in force since October
    7, 2003. No court, so far as we are aware, has ever struck down the possession
    for the purpose offence. That offence has always been in force.

THE SUBSTANTIVE ARGUMENTS

Background

[13]

The history in Ontario of the issues raised by the appellants begins
    with this courts decision in
Parker
(2000)
.
That history is more
    fully set out in our reasons in Mr. Parkers case which are being released
    at the same time as these reasons. These reasons must be read with the reasons
    in Mr. Parkers case to fully appreciate the history of the arguments raised by
    these appellants. Mr. Parker suffered from a severe form of epilepsy which he
    found was alleviated better by smoked marihuana than by conventional treatment.
    At his criminal trial he challenged the constitutionality of the
CDSA
criminal
    prohibition of marihuana possession on the basis that it infringed his s. 7
Charter
rights to liberty and security of the person. This court agreed, declaring
    the provision invalid to the extent of the constitutional inconsistency, but
    suspending its declaration for 12 months to give the government time to craft a
    legislative response.

[14]

In response to
Parker
(2000) the federal government enacted the
MMAR
,
    which came into force on July 30, 2001. In
Hitzig
this court determined
    that the
MMAR
regime was unconstitutional as it did not adequately
    provide for a lawful supply of marihuana. Importantly, however, the court in
Hitzig
did not strike down the
MMAR
in its entirety or declare s. 4 of the
CDSA
to be of no force or effect.  Rather, 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).

[15]

Hitzig
created a retrospective period of invalidity of the
    prohibition of marihuana possession dating back to July 31, 2001 (the date that
    the suspension of invalidity in
Parker
(2000) ran out). Going forward,
Hitzig
made the prohibition of marihuana possession fully constitutional in
    Ontario as of October 7, 2003 (the date of the
Hitzig
decision).

[16]

Following
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 persons
    authorized-to-possess. Sections 41(b) and 54 were re-enacted in their original
    form as sections 41(b.1) and 54.1. As we explain in
Parker
, 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.

1.         The marihuana offences remain in full
    force

[17]

The appellants argue that, in combination,
Parker
(2000)
,
    Hitzig
and
J.P.
have the effect of completely repealing all of the marihuana
    offences set out in the
CDSA
. That is incorrect.  In
R. v. Turmel
(2003),
    231 D.L.R. (4
th
) 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
.

[18]

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.

Krieger
does not assist the
    appellants

[19]

In
Krieger
the Alberta Court of Queens Bench held that because
    Mr. Krieger used marihuana to alleviate his suffering from multiple sclerosis,
    the production prohibition in s. 7(1) of the
CDSA
infringed his s. 7
Charter
rights to liberty and security of the person. The court held that s. 7(1)
    was of no force and effect with respect to marihuana production. The
    declaration of invalidity was suspended for one year to give the government
    time to arrange for a legal source of marihuana for therapeutic use. The
    Alberta Court of Appeal extended the suspension of the declaration until
    further order of the Court. That suspension has never been lifted. In the
    interim, the
Hitzig
line of cases resulted in the
MMAR
which allow
    for lawful access to marihuana for therapeutic use. The constitutional defect
    identified in
Krieger
was thereby remedied during the period of
    suspension and the declaration of invalidity is now moot.

Sfetkopoulos
and
Beren
do
    not assist the appellants

[20]

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) invalid. He did
    not, however, strike down any of the prohibitions in the
CDSA
.

[21]

R. v. Beren
involved a prosecution for production and trafficking
    in marihuana. Koenigsberg J. of the Birtish 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
.
    No provision of the
CDSA
was found to be invalid in
Beren
.

[22]

The appellants argue that, by analogy to
Hitzig
and
J.P.
,
Sfetkopolous
and
Beren
have the effect of invalidating all marihuana
    offences retroactively dating back to December 3, 2003. This argument fails for
    several reasons.

[23]

First,
Hitzig
and
J.P.
only affected the constitutionality
    of the offence of simple possession of marihuana, not the offences of
    production or possession for the purpose of trafficking. The foundational
    declaration of invalidity in
Parker
(2000) simply declares that the
    reference to marihuana in Schedule II is of no force and 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
(
Turmel,
(2003) at para.
    6). Thus, if the appellants argument had merit it could only apply to the
    simple possession charges against the appellants McCrady, Pallister and
    McIntyre.

[24]

Second, the period of retroactive invalidity that the appellants argue
    for would not apply to any of them:

(a)       Retroactive
    invalidity would only work backward from the date of
Sfetkopoulos.
The
    offence dates in the cases of MacDonald, McCrady and Hearn (December 8, 2008,
    February 20, 2009 and April 22, 2009, respectively) are after January 10, 2008 when
    the
Sfetkopoulos
declaration remedied the
Sfetkopoulos
problem.

(b)       The
    offence dates in the cases of Pallister and McIntyre (October 2, 2009 and
    January 7, 2010, respectively) are after paragraph 41(b.1) of the
MMAR
was
    amended in response to
Sfetkopoulos
on May 14, 2009. No court has found
    the amended regulation unconstitutional.

[25]

Third, the offence dates in the cases of McCrady, Hearn, Pallister and
    McIntyre (February 20, 2009, April 22, 2009, October 2, 2009, and January 7,
    2010, respectively) are during the one-year
Beren
suspension of
    invalidity, which began on February 2, 2009. Maloneys offence date (June 6, 2010)
    is after the
MMAR
were amended in response to
Beren
,

on
    March 11, 2010.

[26]

Fourth, although the trial judge in
Beren
declared ss. 41(b.1)
    and 54.1 of the
MMAR
invalid, she made findings of guilt under the
CDSA
(at para. 136). Thus,
Beren
upheld the production and trafficking
    offences as they relate to persons who do not have ATPs under the
MMAR
.

2.         The charges against McCrady and Hearn should
    not be stayed

[27]

The appellants McCrady and Hearn, submit that the charges against them
    should be stayed as marihuana no longer should be a controlled substance. The
    record does not support this position. The appellants submit a list of 25
    complaints related to the
MMAR
. The complaints are not grounded in
    evidence in the record placed before the trial courts or this court. In so far
    as the complaints reference
Sfetkopoulos
and
Beren
, the
    appellants argument

is addressed above. The appellants also make reference
    to the trial decision in
R. v. Mernagh,
2011 ONSC 2121. In that case, Taliano
    J. declared that the prohibitions against possession and production of
    marihuana in ss. 4 and 7 of the
CDSA
are invalid.  However, this court has
    already extended the
Mernagh
suspension of invalidity pending appeal.


THE BENO ARGUMENT

[28]

These appeals are some of many cases that have recently found their way
    to this court either as conviction appeals or attempts at prerogative remedies.
    They all turn on an argument referred to by the appellants as BENO (Bad
    Exemption = No Offence). By the reasons in this appeal and in the companion
    appeal in
Parker
it should now be apparent that this argument cannot
    succeed. This court and other courts have dealt with the so-called Bad
    Exemption by reading in words to fix the constitutional infirmity or by striking
    down the exemption. It was only in
Hitzig
that the effect of the Bad
    Exemption was to retroactively render of no force and effect the s. 4
CDSA
possession
    prohibition as it related to marihuana. That order gave effect to the order of
    this court in
Parker
(2000). In
Parker
(2000),

this court
    gave Parliament a year to fix the problem identified in that case. The effect
    of
Hitzig
was to find that Parliament had not succeeded. Hence the order
    in
Parker
(2000) declaring s. 4 as related to marihuana of no force and
    effect, took effect, but only until October 7, 2003. Put another way, the BENO
    argument only applied to the period from July 31, 2001 to October 7, 2003.

[29]

The appellants have continuing concerns about the
MMAR
regime. In
    their view, the regime is inadequate and fatally flawed. But their views about
    the regime cannot change the fact that since October 7, 2003, with the
    exception of the 2011 decision
Mernagh,
no court has held that the
    marihuana prohibitions are invalid. Since
Parker
(2000) and
Krieger
,
    courts have dealt with defects in the
MMAR
by striking down the
    provisions or reading out offending parts of the regulations. The orders made
    in those cases including
Hitzig, Sfetkopoulos,
and
Beren
, have
    left intact the prohibitions in the
CDSA
. As we have pointed out, the
Parker
(2000)

state of invalidity, as regards the possession offence, ended on
    October 7, 2003. The
Krieger
order of invalidity, as regards the
    cultivation offence, never took effect because of successive orders of the
    trial court and the Alberta Court of Appeal. The order made by Taliano J. in
Mernagh
holding the possession and production marihuana offences of the
CDSA
and
    the
MMAR
to be of no force and effect cannot assist the appellants at
    this point because that order has been stayed.

[30]

Put simply, it is not open to these appellants or others who are
    dissatisfied with the
MMAR
regime to simply refuse to obey the law and
    take the position that the
CDSA
offences are not in effect. If they wish
    to now challenge the validity of any part of the
CDSA
or the
MMAR
they can do so as part of the defence to their charges or by an application in
    the Superior Court of Justice. However, that defence and any application must
    be based upon proper material that clearly demonstrates the constitutional
    infirmity of the
MMAR
and the link between the
CDSA
offences and
    the alleged infirmity in the
MMAR.

CONCLUSION

[31]

The appellants have expressed a shared sense of frustration with the
MMAR
and the medical profession. However, the issues raised are based on a
    fundamental misreading of the state of the law. The marihuana offences set out
    in the
CDSA
remain in full force. The appeals are dismissed.

Signed:           M. Rosenberg J.A.

Robert J. Sharpe J.A.

R. G. Juriansz J.A.

RELEASED:  MR DECEMBER 22, 2011


