R. v. Dowling, 2011 ABQB 548

Court of Queen ’ s Bench of Alberta Citation: R. v. Dowling, 2011 ABQB 548 Date: 20110913 Docket: 090415670Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - David Allyn Dowling Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.J. Smith _______________________________________________________

Summary [ 1 ] The Crown applies to have part of Mr. Dowling's Amended Notice of Charter and Constitutional Arguments struck or for better particulars. Facts

[2] Mr. Dowling was the holder of a valid licence from Health Canada permitting him to grow cannabis marijuana (49 plants)for one individual (D’Ambrosia) who was licenced to use the cannabis marijuana he produced for her. [3] Mr. Dowling is charged with five offences all dated February 5, 2009. In abbreviated form they are production of,possession for the purposes of trafficking of and trafficking of cannabis marijuana, production of cannabis resin and possession ofproceeds of crime. All but the proceeds of crime charge involve the Controlled Drugs and Substances Act (CDSA), sections 7(1) and 5(1and 2). [4] Mr.

Dowling has filed an Amended Notice of Charter and Constitutional Arguments (Notice) requesting relief underSections 7 and 8 of the Charter of Rights and Freedoms. [5] The Crown concedes that paragraph 2 of the Notice dealing with the alleged S. 8 breach is sufficient to permit properpreparation for the voir dire in relation to the search. [6] The Crown submits, however, that paragraph 1of the Notice dealing with the alleged S. 7 breach does not provide sufficientgrounds for the Crown to properly prepare to respond to the application by defence. [7] Paragraph 1 of the Notice states: 1. Pursuant to

Section 7, that Sections 4(1) and 5(2) and 7 of the Controlled Drugs and Substances Act (CDSA) be declaredinoperative and unconstitutional and the Medical Marijuana Access Regulation (MMAR) be declared inoperative and unconstitutional asunduly restricting the rights of ill people requiring cannabis for medical treatment or therapy to have a safe and legal way to meet thismedical need and not be forced into illegal street transactions to do so. In support of which will be cited the Ontario Court of Appeal decisions in R. v. Parker (2000) and R. v. Hitzig (2003) and R. v. J.P.(2003) as well as R. v.

Sfetkopoulos (2008) (Federal Court of Appeal) holding that the medical exemption that the MMAR grants isillusory and does not meet the Parker requirements. The accused will therefore move that the impugned Section’s and regulations areboth inoperative as against him, and unconstitutional as not meeting the Parker standards for an acceptable and functional and realisticexemption for medical needs.

The factual basis for this request will be the evidence of the accused and Donna D’Ambrosia, and theevidence called on the aforesaid Ontario cases which is equally applicable here and now as the problem is national and ongoing. [8] After paragraph 2 the following is stated: AND TAKE FURTHER NOTICE that by giving this Notice the accused does not acknowledge the right of the courts or any other bodyto mandate such notice and thereby constrain or limit or amend

Section 52 of the Charter of Rights and Freedoms, and will argue thatProvincial legislation, whether enacted under the Provincial Court Act, or in cases such as R. v. Dwernychuk or R. v. Leitch areincompetent to affect criminal procedure and in trying to do so they trench on federal powers under s. 91(27) of the Constitution Act. See R. v. Price 2010 NBCA 84 and R. v. Blom (ON CA), 61 O.R. (3rd) 51. [9] Counsel for the Crown has requested that defence counsel provide particulars of the Constitutional challenge and of therelief sought.

Defence counsel has refused maintaining, in part, that the nature of the Crown's request goes beyond the obligation ofdefence disclosure into matters which are privileged. [10] Counsel have provided me with case law outlining constitutional challenges made to sections of the CDSA. (R. v. Parker (2000), (ON CA), 188 D.L.R. (4th) 385; R. v. Kreiger 2003 ABPC 85; R. v. Hitzig, (ON CA),[2003] O.J. No. 3873 (C.A.); R. v. P.(J), [2003] O.J. No.1 (Ont. Prov. Ct.); Sfetkopoulos v. Canada (Attorney General) (2008), 2008FC 33; R. v. Beren 2009 BCSC 429 , 2009 CarswellBC 794, [2009] B.C.J. No. 618; Kubby v.

Canada, 2005 BCCA 640; R. v.

LeClair, [2010] N.B.J. No. 238, NBQB 237). These cases demonstrate some challenges to the legislation have succeeded butconsequential amendments made to the MMAR have rendered the legislation again valid. [11] Currently Sections 4 and 7 of the CDSA were found to be constitutionally invalid in R. v. Mernagh, 2011 ONSC 2121, [2011] O.J. No. 1669, OSCJ.

However, that decision is stayed until a higher court hears the appeal. [12] In Mernagh the evidence proved that it was practically impossible to obtain the requisite support of a medical doctor for thelawful use of medicinal marihuana under the MMAR. [13] It is expected in Dowling that the attack upon the legislation would not be of the sort raised in Mernagh since Mr.

Dowlingwas not licenced for his own use and his purchaser/client was medically approved. [14] However, it is argued by the defence that the legislation as a whole must be declared invalid based upon the precedentsavailable and cited above and other facts which remain to be proven in the voir dire. [15] Given the jurisprudence of successful challenges and effective consequential amendments to the MMAR, a preliminary viewof the defence argument that the content of the legal precedents can render the legislation invalid is that without adjudicative facts thedefence argument may have little chance of success.

I hasten to add, not having heard the defence argument, that this characterization ofthe defence argument may be unduly narrow. [16] On questioning from the Court, defence counsel allowed that the operation of the CDSA may be challenged on the basis thatit does not permit the production of cannabis resin, that it limits a licenced producer to one client, and that it limits the amount that can beproduced.

However, the main thrust of the argument is expected to be against the legislation as a whole. [17] The Crown's obligation will be to seek to justify the legislation and the restrictions in the MMARs under S. 1 of the Charter.The Crown submits that to do this it needs sufficient particulars in advance of the application so that it can focus the S. 1 evidence onactual complaints and to avoid the need for an adjournment later. Notice [18] Alberta law sets out the need for notice when the validity of an enactment is challenged.

Judicature Act, RSA 1980 c.J-1s.25; Constitutional Notice Regulation, Alberta Regulation 102/99. [19] Additionally, case law sets out that the Notice must include a factual and legal basis for the challenge. "The requirement thatthe party bearing the burden of proof outline the basis of his or her application is part of, and in no way inconsistent with, our adversarialprocess" (R. v. Kutynec, (ON CA), [1992] O.J. No. 347, (O.C.A.)at para 34. [20] Further in R. v. Aberdeen, 2006 ABCA 164 , [2006] A.J. No. 561 (ABCA) the Court stated: 12.

The requirement of notice is to ensure that governments have a full opportunity to support the constitutional validity of theirlegislation, or to defend their action or inaction, and to ensure that courts have an adequate evidentiary record in constitutional cases. Thenotice requirements depend on whether a constitutional remedy is sought and whether the remedy falls under s. 52(1) of the ConstitutionAct, 1982 or ss. 24(1) or 24(2) of the Charter. [21] In Danson v. Ontario (Attorney General), (SCC), [1990] 2 SCR 1086, para. 20, Sopinka J. said:

27 It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: “adjudicative facts”and “legislative facts”. These terms derive from Davis, Administrative Law Treatise (1958), vol. 2. para. 15.03, p. 353. (See alsoMorgan, “Proof of Facts in Charter Litigation”, in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern theimmediate parties: in Davis’s words, “who did what, where, when, how and with what motive or intent ...” Such facts are specific, andmust be proved by admissible evidence.

Legislative facts are those that establish the purpose and background of legislation, including itssocial, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibilityrequirements. 28 In the present case, the appellant contends that he ought to be entitled to proceed with his application under Rule 14.05(3)(

h) inthe complete absence of adjudicative facts, and, moreover, that it is sufficient that he present in argument (but not prove by affidavit orotherwise) legislative “facts”, in the form of textbooks and academic material about the prevailing understanding of the concept of theindependence of the bar, and material concerning the legislative history of the impugned rules. In the view I take of this matter, theappellant is not entitled to proceed with the application as presently constituted. [22] I am bound by Aberdeen and Danson and guided by Kutynec.

I am not inclined to disregard Alberta legislationnotwithstanding that this constitutional challenge is against federal law. Nor am I inclined to ignore the public’s interest in the Courtmoving on effective prior notice. Eaton v. Brant County Board of Education (SCC), [1996] SCJ No. 98, SCC. Finding [23] Paragraph 1 of the Notice states that the legislation is unconstitutional as "unduly restricting the rights of ill people requiringcannabis for medical treatment or therapy to have a safe and legal way to meet this medical need".

However, it fails to set out the mannerin which it will be alleged that the legislation achieves this result or the sections of the MMARs which allegedly help to create thissituation. [24] While Paragraph 1 suggests that the factual basis will be the evidence of the accused and Ms. D'Ambrosia, that factual basisis completely lacking without some suggestion of how the expected evidence will assist with the argument. [25] The Notice fails to set out a remedy sought. [26] In my view the Notice is deficient. [27] This matter has been previously adjourned. The trial is now set to begin December 7, 2011.

A further adjournment ought tobe avoided if possible. That objective has a probability of being met if the basis of the legislative challenge is set out so that the Crownwill be in a position to determine the type of evidence which is likely to be required for its S. 1 argument and for the argument onstanding. [28] I am disinclined to deprive Mr. Dowling of his opportunity to challenge the legislation at this time. While he has declined toprovide particulars prior to this hearing it is my view that he ought to have a further opportunity to do so. In R .v. Blom, (ON CA), [2002] O.J.

No. 3199 (OCA) an adjournment was refused and the appellant was denied the right to advance hisapplication for S. 7 relief. In Dowling we are in a state of adjournment. This is an appropriate time for the defence to particularize itschallenge. [29] For clarity, it is the basis of the attack on the legislation which is ordered particularized, not a recitation of the evidence of thetwo witnesses or a brief of argument.

Conclusion [ 30 ] I direct that further particulars for the Constitutional Challenge be set out by the defence by October 17. This is the same date set for a determination by defence of whether an O'Connor application will be advanced and for the necessary action to bring it on if the determination is affirmative. [ 31 ] The particulars shall include the specific sections of the CDSA and of the MMARs which are alleged to offend, the basic facts which the defence hopes to elicit from Mr. Dowling and Ms.

D'Ambrosia to support the challenge to the legislation as well as to support the standing required to maintain a challenge to the legislation, and the specific cases (referred to in the Notice as the Ontario cases) and the basic facts and/or conclusions from each which the defence hopes will be of assistance on the application. [ 32 ] Further, the particulars shall specify the remedy or range of remedies sought and the authority for the remedy. Heard on the 7 th day of September, 2011. Dated at the City of Edmonton, Alberta this 12 th day of September, 2011. L.J. Smith J.C.Q.B.A.

Appearances: Adam Halliday, Crown Prosecutor, Public Prosecution Service of Canada For the Crown Philip G. Lister, Q.C. For the Accused