R. v. Ferkul, 2019 ONCJ 893

ONTARIO COURT OF JUSTICE CITATION: R. v. Ferkul, 2019 ONCJ 893 DATE: 2019 07 26 Old City Hall BETWEEN: HER MAJESTY THE QUEEN (Respondent) — AND — DAVID FERKUL, CLINTON YOUNGE, BRITNEY GUERRA, REBECCA BRUCE, AND JAKE SIMOPOULOS (Applicants) Before Justice Rondinelli Reasons for Decision released on July 26, 2019 K. Gill, D. Morlog, and K. Aird ............................................... counsel for the Respondent D. Stein and J.

Lloyd.................................................................. counsel for the Applicants Rondinelli J.: [ 1 ] The Applicants are charged with various Controlled Drugs and Substances Act (“CDSA”) offences in relation to the possession and sale of marihuana. The Applicants bring this joint Application, arguing that ss. 5(2) and 4 of the CDSA (in combination with the Access to Cannabis for Medical Purposes Regulations , SOR/2016-239 (“ACMPR”)) as they apply to marihuana are inconsistent with sections 7, 15, and 2(

b) of the Charter and cannot be saved by s. 1 of the Charter . The Nature and Timing of the Application [ 2 ] When the Applicants were charged with these offences and this Application commenced, cannabis was only legally available through the ACMPR. Prior to the hearing of this Application, however, the Cannabis Act , S.C. 2018, c. 16 came into force on October 17, 2018. The Cannabis Act creates a legal and regulatory framework for the production, distribution, possession and sale of cannabis. The Cannabis Regulations , SOR/2018-144 were also brought into force on the same date as the Cannabis Act .

These new regulations have replaced the ACMPR. [ 3 ] Since October 17, 2018, authorized patients are still able to access medical cannabis by buying directly from a federally licensed seller; registering with Health Canada to produce a limited amount of cannabis for their own medical purposes; or designating someone to produce it for them. In Ontario, they are also able to buy cannabis at authorized retail outlets or through authorized online sales platforms.

Possession, production, distribution and sale outside the legal system remains subject to criminal penalties. [ 4 ] Despite this change of legislative landscape, the Application is not rendered moot.

Section 43 of the

Interpretation Act , R.S.C. 1985, c-I-21 authorizes the prosecution and punishment for offences committed under an enactment so repealed. Consequently, the Applicants are entitled to advance a defence to the charges that includes a Charter challenge to the now-repealed legislation. [ 5 ] The joint Application record in this case contains extensive expert evidence and evidence of a number of medical cannabis patients that rely on access to medical cannabis to deal with their various conditions.

There was however, no evidence put forth as to who the Applicants are and in what circumstances they are alleged to have possessed and sold cannabis. Through some unsubstantiated submissions by counsel, I gather that the Applicants have some involvement in unregulated cannabis storefront dispensaries. [ 6 ] At first blush, it would appear that in the absence of an evidentiary record that indicates that access to medical cannabis has

anything to do with the Applicants, standing to advance such Charter claims is lacking. However, the principle “…that no one can beconvicted of an offence under an unconstitutional law” applies to the Applicants: R. v. Big M Drug Mart Ltd., (SCC),[1985] 1 S.C.R. 295, at p. 313. Further, as R. v. Morgentaler, (SCC) instructs, accused persons have standing tochallenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them. [7] These principles were recently applied by the Supreme Court of Canada in R. v.

Smith, 2015 SCC 34 at paras. 11-13, where theCourt found that Mr. Smith was entitled to challenge provisions of the CDSA and the Marihuana Medical Access Regulations,SOR/2001-227 (“MMARs”) (which were replaced by the ACMPR) since the constitutionality of the statutory provision under which Mr.Smith was charged was directly dependent on the constitutionality of the medical exemption provided by the MMARs. The sameprinciples apply here. As such, the Applicants are entitled to challenge the statutory provisions in this case.

Section 7 of the Charter [8]

Section 7 of the Charter states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [9] In order to demonstrate a violation of s. 7, the Applicants must first show that the law interferes with, or deprives them of, theirlife, liberty or security of the person. If so, s. 7 is engaged and the Applicants must then establish that the deprivation in question is not inaccordance with the principles of fundamental justice: Carter v.

Canada (Attorney General), 2015 SCC 5 at para. 55. [10] The fact that the Applicants are exposed to the threat of imprisonment upon conviction for the charges they are facing is enoughto engage their s. 7 right to liberty: Smith, at para. 17. [11] The question then becomes whether the restriction of liberty is in accordance with the principles of fundamental justice. Thoseprinciples include arbitrariness, overbreadth, and gross disproportionality.

Furthermore, as held in Canada (Attorney General) v.Bedford, 2013 SCC 72 at para. 123, “The question under s. 7 is whether anyone’s life, liberty or security of the person has been deniedby a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breachof s. 7.” [12] Each of these principles involves comparison with the object of the law that is challenged: Bedford, at para. 123.

The object ofthe ACMPR is to “provide Canadians with a greater range of options to access cannabis for medical purposes in order to address theissue of reasonable access as identified by the court [in Smith and Allard]”: ACMPR Regulatory Impact Analysis Statement, Affidavit ofTodd Cain, Respondent’s Record, Volume I, Tab 1a. This purpose fits within the CDSA’s objective of protection of health and publicsafety: Canada (Attorney General) v.

PHS Community Services Society, 2011 SCC 44 at para. 129. [13] The Applicants submit that the ACMPR creates eight main barriers to medical cannabis access that are not in accordance withthe principles of fundamental justice.

These barriers are: 1) Delivery delays and a lack of on-demand timely access; 2) Ordering and delivery issues by persons who have limited or no access to the Internet or no banking facilities or no permanentresidences to facilitate delivery of their medicine; 3) High costs associated with minimum purchase requirements and shipping from licensed producers; 4) A lack of face-to-face contact with sales and service personnel for patients who need to ask questions about and receive informationabout their medicine; 5) An inability of patients to see and smell their medicine when purchasing – which has a negative impact on their ability to choose theirmedicine; 6) Delays in obtaining licenses to possess, access or grow their medicine; 7) Limited availability of strains preferred by and needed by patients to treat their illness; and

8) Limits on cannabis derivatives that make access to cannabis derivatives illusory at best. [14] The Applicants argue that the CDSA prohibitions and the ACMPR’s mail order system stand in the way of a medical cannabispatient making autonomous medical decisions. A patient who needs pain or symptom relief should be entitled to immediate reliefoffered through an on-demand access channel. [15] In my view, the barriers that the Applicant highlights do not rise to a level of infringing s. 7 of the Charter. [16] When it comes to health care, Chief Justice McLachlin and Justice Major wrote in Chaoulli v.

Quebec (Attorney General), 2005SCC 35 at para 104, “The Charter does not confer a freestanding constitutional right to health care. However, where the governmentputs in place a scheme to provide health care, that scheme must comply with the Charter.” But just because the scheme must complywith the Charter, it does not mean that the government “must do everything possible to save the lives of its citizens in everycircumstance, including funding all potentially life-saving treatments”: Flora v.

Ontario Health Insurance Plan, (ONSCDC) at para. 227. [17] In my view, the Applicants are seeking a system that provides perfect access (which is not constitutionally required), rather thanone that provides reasonable access (which is constitutionally protected). [18] The ACMPR regime provides multiple avenues to access cannabis for medical purposes. Indeed, it provides medical cannabispatients with more options than any previous regime. Since Smith and Allard v.

Canada, 2016 FC 236 were decided, the ACMPR nowpermits medical cannabis patients to both possess and produce cannabis derivatives and to purchase and possess cannabis oil. It alsoallows patients to designate others to produce derivatives for those patients with their cannabis. Also, unlike in Allard where patientscould only purchase cannabis for medical purposes from licensed producers, the ACMPR permits patients to grow it for themselves or todesignate a third party to grow it for them. The ACMPR permits all authorized patients nationwide to access cannabis for medicalpurposes.

Access is not dependent on being located in or near a city centre or having access to transportation. Storefront access wouldnot necessarily improve the plight of the homeless or those living in precarious housing since it would be impossible to provide enoughstorefronts in both urban and remote communities to provide practical access to this marginalized group. [19] Delay in accessing health care has been found to infringe s. 7 of the Charter in certain landmark Supreme Court of Canada cases.As the Court of Appeal explains in Flora v.

Ontario Health Insurance Plan, 2008 ONCA 538 at paras. 98-100: [98] In Chaoulli, the pivotal consideration was the fact that the impugned prohibition on private health insurance "conspired" withexcessive costs in Quebec's public health care system to force Quebeckers onto the wait lists that pervaded the public system. It was thisconnection between the statutory prohibition on private health insurance and the delays in the public system that anchored the Chaoulliholding that the wait lists constituted a deprivation of rights protected under s. 7.

In other words, the statutory prohibition in issue wasdirectly linked to the harm suffered by Quebeckers who were compelled by the prohibition to rely on the public health care system and toendure the consequences of significant wait lists. [99] A similar link between state action and delays in accessing health care grounds the Supreme Court of Canada's decision in R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1.

In that case, the Supreme Court concluded that the s. 7right to security of the person for women was jeopardized by the mandatory therapeutic abortion committee system established bythe Criminal Code, R.S.C. 1985, c. C-46, which forced women who sought abortions to suffer significant delays in treatment withattendant physical risk and psychological suffering. Morgentaler, at p. 59, per Dickson C.J.C. and, at pp. 105-106, per Beetz J., Estey J.concurring. [100] To similar effect is the Supreme Court's decision in Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, [1993] S.C.J.

No. 94, 107 D.L.R. (4th) 342, which holds that governmental interference with a citizen'sbodily integrity -- such as a criminal law prohibition on assisted suicide -- constitutes a deprivation of security of the person under s. 7. [20] The ACMPR does not prohibit any medical cannabis patient from taking advantage of the medical service provided by theregulations.

There is no doubt that the ACMPR’s mail order system provides some inherent delay in obtaining medical cannabis, but theevidence before me falls short in establishing that the mail order delay could lead to serious long lasting harm or life-threateningconditions that were found to exist in Chaoulli, Morgentaler, and Rodriguez.

Rather, the evidence in this Application demonstrates thatthe medical cannabis patients wish immediate access to help manage pain levels and to alleviate symptoms: See affidavits of KennethWebber, Sylvie Duggan, Maxine Abena Mackenzie, Marcel Wilson, Rick Vrecic, Elizabeth Swartz, and Karlee Boyce, Applicants’Application Record, Volume III. [21] The medical cannabis patients’ evidence presented at this Application share many similar concerns over the expense, delay, andfrustrations in dealing with the mandated mail-order system the ACMPR put in place.

For example, the affidavit of Kenneth Webberstates: As a low-income individual, my only option is to purchase from a local dispensary or compassion club, or use a pre-paid VISA card tomake purchases from Aurora, however that is more expensive and time consuming: Affidavit of Kenneth Webber, Applicants’Application Record, Volume III, Tab 11, para. 27 [22] The affidavit of Sylvie Duggan states: The rules for payment with Tweed make it very difficult for me to make a single order because of the fact that I do not have a creditcard.

I only have a debit card and I cannot use a debit card to purchase from Tweed because my bank is TD Bank and they will not dobusiness with Tweed…In order to purchase my medical cannabis I have to go to my bank and get a money order, then I have to get themoney order faxed to Tweed, then I have to phone Tweed to make sure they received the fax money order, and then it takes up to threedays after that for them to ship the cannabis to me…I have mobility issues due to my illness and having to go to the bank, then theemployment office, and then the post office can exacerbate my symptoms of COPD, lupus, and fibromyalgia…I prefer to have person-to-person contact when it comes to my medical needs and concerns: Affidavit of Sylvie Duggan, Applicants’ Application Record, Volume

III, Tab 12, paras. 7, 8, 12, and 17. [23] In my view, the access to medical cannabis provided by the ACMPR achieves the object of the ACMPR and therefore,individuals’ rights are not limited arbitrarily and the negative effects of the ACMPR regime (delay, cost, and frustrations) are notcompletely out of sync with the object of the law: Carter, at para. 89. [24] I find no infringement of s. 7 of the Charter.

Section 15(1) of the Charter [25] Section 15(1) of the Charter states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [26] In Quebec (Attorney General) v.

Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC17, Justice Abella (speaking for the majority) articulated the substantive equality analysis under s. 15(1) as follows: [25] Since Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, this Court has emphasizedsubstantive equality as the engine for the s. 15 analysis (R. v. Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483; Quebec (AttorneyGeneral) v. A, 2013 SCC 5 , [2013] 1 S.C.R. 61; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 , [2015] 2S.C.R. 548).

The test for a prima facie violation of s. 15 proceeds in two stages: Does the impugned law, on its face or in its impact,create a distinction based on enumerated or analogous grounds? If so, does the law impose “burdens or den[y] a benefit in a manner thathas the effect of reinforcing, perpetuating, or exacerbating . . . disadvantage” (Taypotat, at paras. 19-20). [26] The first step of the s. 15(1) analysis is not a preliminary merits screen, nor an onerous hurdle designed to weed out claims ontechnical bases.

Rather, its purpose is to ensure that s. 15(1) of the Charter is accessible to those whom it was designed to protect. The“distinction” stage of the analysis should only bar claims that are not “intended to be prohibited by the Charter” because they are notbased on enumerated or analogous grounds — which are “constant markers of suspect decision making or potential discrimination”(Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396, at para. 33; Taypotat, at para. 19,quoting Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, at para. 8).

Thepurpose, in other words, is to exclude claims that have “nothing to do with substantive equality” (Taypotat, at para. 19, quoting LynnSmith and William Black, “The Equality Rights” (2013), 62 S.C.L.R. (2d) 301, at p. 336). For that reason it is not appropriate, at the firststep, to require consideration of other factors — including discriminatory impact, which should be addressed squarely at the second stageof the analysis.

The focus must remain on the grounds of the distinction. * * * [28] At the second step of the s. 15(1) test, as this Court said in Kapp (at paras. 23-24) and Withler (at para. 66), it is not necessary ordesirable to apply a step-by-step consideration of the factors set out in Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, and no case since Kapp has applied one.

The focus is not on “whether a discriminatory attitudeexists”, or on whether a distinction “perpetuates negative attitudes” about a disadvantaged group, but rather on thediscriminatory impact of the distinction (Quebec v. A, at paras. 327 and 330 (emphasis deleted)). [27] The Applicants claim that there are two sets of discriminated parties. First, disabled persons who use cannabis and cannabisderivative products medicinally and their comparator group are disabled people who do not use cannabis or cannabis derivative productsmedicinally.

By preventing medical cannabis patients from accessing their medicine at a dispensary and, instead, forcing them into ahighly restricted system that engenders significant delay or inability to lawfully access medicine, Canada has made a distinction betweendisabled people who use cannabis and cannabis derivative products medicinally and disabled people who do not use cannabis andcannabis derivative products medicinally. [28] The second set includes homeless and precariously housed individuals as described by Professor Stephen Gaetz, Professor MJMilloy, and Dr.

Carolina Landolt, who use cannabis and cannabis derivative products medicinally. Their comparator group arehomeless/precariously housed individuals who do not use cannabis and cannabis derivative products medicinally. [29] Turning first to the homeless and precariously housed individuals. While the Supreme Court of Canada has yet to pronouncewhether poverty is an analogous ground for the purposes of s. 15, there is binding appellate authority in Ontario that has found that it isnot: R. v. Banks, 2007 ONCA 19, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 139. As Justice Lederer explained in Tanudjajav.

Attorney General (Canada), 2013 ONSC 5410 at para. 131: [131] …It is a circumstance where there is no means to understand the parameters that would define those who make up the analogous

group. Who would be the members? On what basis is the group said to be analogous? In these circumstances, it is impossible to come toa substantive understanding of what the analogous ground is. It appears that the true shared characteristic is that applicants are poor.They cannot afford adequate housing, whatever that may be for each of them. This is not a basis for distinguishing an analogous group: A third reason lies in a consideration of those who make up the group of people who are in financial need.

The poor in Canadian societyare not a group in which the members are linked by shared personal or group characteristics. The absence of common or sharedcharacteristics means, in my view, that poverty is not an analogous grounds to those enumerated. Those enumerated grounds are definedby one or more shared characteristics whether it be race, nationality, colour, religion, sex, age or disability. [Polewsky v.

Home HardwareStores Ltd., at para. 59.] [30] As homelessness in not an analogous ground under s. 15(1), the Applicants’ claim fails at the first stage of the s. 15 analysis. [31] On the other hand, physical disability is an enumerated ground under s. 15(1) of the Charter. However, there is no general rightthat everyone is to be free of unequal or differing treatment. Section 15(1) is aimed at preventing discriminatory distinctions that impactadversely on members of groups identified by the grounds enumerated in s. 15 and analogous grounds: R. v. Kapp, 2008 SCC 41 at para.16.

As with the homelessness claim, the judicial authority is against the Applicants with respect to access to medical cannabis byindividuals with disabilities. [32] In Wakeford v. Canada, (ON SC), Justice LaForme (as he then was) held that the CDSA did not have anadverse discriminatory impact upon individuals with disabilities and those with AIDS, and as such, Mr. Wakeford’s s. 15 Charter rightswere not violated. As Justice LaForme stated: [89] If cannabis were the only means of treating Mr.

Wakeford’s symptoms, and it was not reasonably accessible, then it could beargued that the government was disregarding the needs of a particular identifiable group. However, that is not the situation here.Mr. Wakeford has not established that he has no other elective legal way to treat his nausea and loss of appetite. Indeed, the evidence isthere are other options that are available to him, some of which he has, for his own reasons, chosen not to avail himself of. [90] It is again Mr. Wakeford’s choice not to use the other available medications which may also effectively treat his condition.

Theletter of health Minister Allan Rock to Mr. Wakeford, portions of which have been set out above, demonstrates that the government isaware that these medications exist. In my view, it cannot be said that the government is impassive to his needs solely on the basis it doesnot actively seek to make available Mr. Wakeford’s drug of choice.

This would be analogous to the situation where the governmentequipped its buildings to accommodate those with a specific disability and those individuals claimed they were being discriminatedagainst because they would rather have something different [33] It is important to note that Wakeford was decided before any of the regulations at issue here were in effect. The ACMPR regimedoes not draw a distinction between individuals with or without disabilities. If anything, the situation has improved immensely sinceWakeford with respect to access to medical cannabis to all individuals, including those with disabilities.

As outlined in the Applicants’Application Record, medical cannabis is used to treat serious medical conditions for which other prescription drugs could be prescribed.As such, on the reasoning of Wakeford and the expanded choices since Wakeford lead me to conclude that Parliament is not denyingindividuals with disabilities equal access to the benefit of helpful and therapeutic medication. [34] Consequently, the Applicants have failed to establish that the CDSA, in combination with the ACMPR scheme infringe s. 15(1)of the Charter.

Section 2(

b) of the Charter [35]

Section 2(

b) of the Charter reads: 2. Everyone has the following fundamental freedoms: * * * (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. [36] The Applicants argue that the criminal prohibition against in-person access to medical cannabis is an infringement of s. 2(

b) ofthe Charter. [37] The Applicants claim that storefront dispensaries should be allowed to express valuable medical, political, legal and commercialinformation to medically approved patients. Further, individuals should be able to see and smell the product before purchasing it.Evidence lead at this Application suggests that the aural, visual, and sensory communications relating to medical cannabis form a vitalpart of an individual’s ability to access and benefit from medical cannabis.

For example, the affidavit of Christopher Sampson (a medicalcannabis user) states: Irradiated cannabis products have degraded terpenes and I find they do not work as well for me. Terpenes have medically beneficialeffects for me. Terpenes are identifiable because you can smell them. Being able to smell the cannabis plant is vitally important because

you can tell which terpenes are present and that helps determine whether the strain of cannabis will help you…storefront dispensaries arevitally important because I can smell the cannabis and see the cannabis that they are selling: Affidavit of Christopher Sampson,Applicant’s Application Record, Volume IV, Tab 21, para. 14. [38] Further, the medical expert report of Jokubas Ziburkus, an Associate Professor in Biology and Biochemistry and a researcher oncannabinoids, explains that medical cannabis is a substance for which the smell and appearance have specific and important meaning forpatients.

This meaning cannot be conveyed unless a patient sees the product in person and smells the product in person. As Dr. Ziburkusopines: In my opinion, as with any botanical nutraceutical or pharmaceutical preparations it is often very useful to have in-person purchasinginteractions. First, patients can be aversive to certain smells and thus certain cannabis strains. When olfactory perceptions are heightenedduring the chemotherapy treatments, this can lead to an unwanted effect.

Instead, if the patient had ability to walk into the store andsmell several kinds of cannabis that would help them avoid aversion or otherwise allergic reaction to certain cannabis strains. Second,since cannabis flowers come from many strains, it is important to learn from the dispensary technicians or health practitioners onsiteabout the possible entourage of molecules in cannabis flower and cannabis products: Affidavit of Jokubas Ziburkus, Applicant’sApplication Record, Volume I, Tab 7, para. 68. [39] Dr.

Ziburkus uses the following analogy when describing a person’s affinity for different strains of cannabis: …[W]e eat apples that we like. They are all health and nutritious, but we all prefer green or red, small or large apples.

Thus, we gravitatetoward certain apples not only because it gives us healthy benefits, but also because we prefer certain looks, textures, and flavors of ourfavourite apple types: Affidavit of Jokubas Ziburkus, Applicant’s Application Record, Volume I, Tab 7, para. 67. [40] As the Applicants framed their claim in their final submissions, they are not demanding positive action through s. 2(

b) of theCharter, but rather asking that the muzzles contained in the ACMPR be removed. That is, ss. 144 and 150 of the ACMPR that mandatemail order shipping of product rather than direct access. [41] While it is true that the ACMPR regime prevents the sale of cannabis for medical purposes by way of storefronts, there isnothing in the CDSA or the ACMPR that in any way prohibits the Applicants or others from communicating information about medicalcannabis. As Mr.

Lloyd acknowledged in his oral submissions, there is no law stopping the Applicants from providing the sameinformation that they wish to provide in a storefront setting: Transcript, November 30, 2018, pp. 94-95. As such it cannot be found thatthe CDSA or the ACMPR regulations contravene s. 2(

b) of the Charter in this regard. [42] With respect to the odour and appearance of the medical cannabis, it is important to note that the ACMPR regime allows aperson to return any of the product it receives: See ss. 146(5), 147, and 148 of the ACMPR. Of course, this necessitates some delay andexpense for the person, but it cannot be said that the regime is muzzling any expressive content that seeing, feeling, and smellingmedical cannabis may hold to an extent that attracts s. 2(

b) Charter attention. [43] The Applicants’ s. 2(

b) claim fails. Conclusion [44] Since ss. 5(2) and 4 of the CDSA (in combination with the ACMPR) do not violate ss. 7, 15(1), or 2(

b) of the Charter, it isunnecessary to consider whether any infringement is justified under s. 1 of the Charter. [45] Canada has come a long way since the Ontario Court of Appeal first held in R. v. Parker, that a blanketprohibition on medical access to marihuana infringed the Charter. The medical benefits of cannabis are now generally accepted. TheACMPR was a stepping stone to the recently enacted Cannabis Act. In my view, this stepping stone is constitutionally sound. [46] The Application is dismissed. Released: July 26, 2019 Signed: Justice Rondinelli