Her Majesty The Queen Appellant v. Owen Edward Smith, 2015 SCC 34

SUPREME COURT OF CANADA Citation: R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602 Date: 20150611 Docket: 36059 Between: Her Majesty The Queen Appellant and Owen Edward Smith Respondent - and - Santé Cannabis, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Canadian AIDS Society, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario Interveners Coram: McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ. Reasons for Judgment: (paras. 1 to 34) The Court R. v .

S mith, 2015 SCC 34, [2015] 2 S.C.R. 602 Her Majesty The Queen Appellant v. Owen Edward Smith Respondent and Santé Cannabis, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, British Columbia Civil Liberties Association,

Canadian AIDS Society, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario Interveners Indexed as: R. v. Smith 2015 SCC 34 File No.: 36059. 2015: March 20; 2015: June 11.

Present: McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of Rights — Standing — Accused charged with possession and possession for purpose oftrafficking of cannabis — Regulations limiting lawful possession of medical marihuana to dried forms — Accused not using marihuanafor medical purposes but producing derivatives for sale outside regulatory scheme — Whether accused has standing to challengeconstitutional validity of scheme — Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), 5(2) — Marihuana Medical AccessRegulations, SOR/2001-227.

Constitutional law — Charter of Rights — Right to life, liberty and security of person — Fundamental justice — Accusedcharged with possession and possession for purpose of trafficking of cannabis — Regulations limiting lawful possession of medicalmarihuana to dried forms — Whether limitation infringes s. 7 of Canadian Charter of Rights and Freedoms — If so, whetherinfringement justifiable under s. 1 of Charter — Appropriate remedy — Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1),5(2) — Marihuana Medical Access Regulations, SOR/2001-227.

S produced edible and topical marihuana derivatives for sale by extracting the active compounds from the cannabis plant.He operated outside the Marihuana Medical Access Regulations (“MMARs”), which limit lawful possession of medical marihuana to“dried marihuana”. S does not himself use marihuana for medical purposes. The police charged him with possession and possession forpurpose of trafficking of cannabis contrary to ss. 4(1) and 5(2), respectively, of the Controlled Drugs and Substances Act (“CDSA”).

Thetrial judge held that the prohibition on non-dried forms of medical marihuana unjustifiably infringes s. 7 of the Charter and a majority ofthe Court of Appeal dismissed the appeal. Held: The appeal should be dismissed, the Court of Appeal’s suspension of the declaration of invalidity deleted and S’sacquittal affirmed. S has standing to challenge the constitutionality of the MMARs.

Accused persons have standing to challenge theconstitutionality of the law under which they are charged, even if the alleged unconstitutional effects are not directed at them, or even ifnot all possible remedies for the constitutional deficiency will end the charges against them. The prohibition on possession of non-dried forms of medical marihuana limits the s. 7 Charter right to liberty of the personin two ways. First, the prohibition deprives S as well as medical marihuana users of their liberty by imposing a threat of imprisonment onconviction under s. 4(1) or s. 5(2) of the CDSA.

Second, it limits the liberty of medical users by foreclosing reasonable medical choicesthrough the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and anillegal but more effective one, the law also infringes security of the person. These limits are contrary to the principles of fundamental justice because they are arbitrary; the effects of the prohibitioncontradict the objective of protecting health and safety.

The evidence amply supports the trial judge’s conclusions that inhalingmarihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives. In otherwords, there is no connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patientswho qualify for legal access to medical marihuana. In this case, the objective of the prohibition is the same under both the ss. 7 and 1 Charter analyses: the protection of healthand safety.

It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7 frustrates therequirement under s. 1 that the limit on the right be rationally connected to a pressing objective. The infringement of s. 7 is therefore notjustified under s. 1. However, ss. 4 and 5 of the CDSA should not be struck down in their entirety.

The appropriate remedy is a declaration thatthese provisions are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessingcannabis derivatives for medical purposes; however, that declaration is not suspended because it would leave patients without lawfulmedical treatment and the law and law enforcement in limbo. Cases Cited Referred to: R. v. Parker (2000), (ON CA), 146 C.C.C. (3d) 193; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; R. v. Latchmana, 2008 ONCJ187, 170 C.R.R. (2d) 128; R. v.

Clay (2000), (ON CA), 49 O.R. (3d) 577; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; Hitzig v. Canada (2003), (ON CA), 231 D.L.R. (4th) 104; Housen v. Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134;Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015]

1 S.C.R. 331; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7. Constitution Act, 1982, s. 52. Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4, 5, 55. Food and Drugs Act, R.S.C. 1985, c. F-27. Marihuana for Medical Purposes Regulations, SOR/2013-119. Marihuana Medical Access Regulations, SOR/2001-227 [rep. 2013-119, s. 267], ss. 1 “dried marihuana”, 24, 34.

APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Chiasson and Garson JJ.A.), 2014 BCCA 322,360 B.C.A.C. 66, 617 W.A.C. 66, 315 C.C.C. (3d) 36, 316 C.R.R. (2d) 205, 14 C.R. (7th) 81, [2014] B.C.J. No. 2097 (QL), 2014CarswellBC 2383 (WL Can.), setting aside in part a decision of Johnston J., 2012 BCSC 544, 290 C.C.C. (3d) 91, 257 C.R.R. (2d) 129,[2012] B.C.J. No. 730 (QL), 2012 CarswellBC 1043 (WL Can.). Appeal dismissed. W. Paul Riley, Q.C., and Kevin Wilson, for the appellant. Kirk I. Tousaw, John W. Conroy, Q.C., Matthew J. Jackson and Bibhas D. Vaze, for the respondent. Julius H.

Grey and Geneviève Grey, for the intervener Santé Cannabis. Gerald Chan and Nader R. Hasan, for the intervener the Criminal Lawyers’ Association (Ontario). Andrew K. Lokan and Debra McKenna, for the intervener the Canadian Civil Liberties Association. Jason B. Gratl, for the intervener the British Columbia Civil Liberties Association. Written submissions only by Paul Burstein, Ryan Peck and Richard Elliott, for the interveners the Canadian AIDS Society,the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario.

The following is the judgment delivered by [1] The Court — Regulations under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), permit theuse of marihuana for treating medical conditions. However, they confine medical access to “dried marihuana”, so that those who arelegally authorized to possess marihuana for medical purposes are still prohibited from possessing cannabis products extracted from theactive medicinal compounds in the cannabis plant.

The result is that patients who obtain dried marihuana pursuant to that authorizationcannot choose to administer it via an oral or topical treatment, but must inhale it, typically by smoking. Inhaling marihuana can presenthealth risks and is less effective for some conditions than administration of cannabis derivatives. [2] The parties accept the conclusion of the Ontario Court of Appeal in R. v. Parker (2000), (ONCA), 146 C.C.C. (3d) 193, that a blanket prohibition on medical access to marihuana infringes the Canadian Charter of Rights andFreedoms.

This appeal requires us to decide whether a medical access regime that only permits access to dried marihuana unjustifiablyviolates the guarantee of life, liberty and security of the person contrary to s. 7 of the Charter. The British Columbia courts ruled it did,and we agree. I. Background [3] The CDSA prohibits the possession, production, and distribution of cannabis, its active compounds, and itsderivatives. In recognition of the fact that controlled substances may have beneficial uses, the CDSA empowers the government to createexemptions by regulation for medical, scientific or industrial purposes (s. 55).

The Marihuana Medical Access Regulations, SOR/2001-227 (“MMARs”), created such an exemption for people who could demonstrate a medical need for cannabis. Applicants had to provide adeclaration from a medical practitioner certifying that conventional treatments were ineffective or medically inappropriate for treatmentof their medical condition. Once they had met all the regulatory requirements, patients were legally authorized to possess “driedmarihuana”, defined as “harvested marihuana that has been subjected to any drying process” (s. 1).

Some patients were authorized togrow their own marihuana, under a personal-use production licence (s. 24), while others obtained the drug from a designated licensedproducer (s. 34). [4] The MMARs were replaced in 2013 with the Marihuana for Medical Purposes Regulations, SOR/2013-119(“MMPRs”). The new regime replaces the marihuana production scheme in the MMARs with a system of government-licensedproducers.

For the purposes of this appeal, however, the situation remains unchanged: for medical marihuana patients, the exemptionfrom the CDSA offence is still confined to dried marihuana. [5] The accused, Owen Edward Smith, worked for the Cannabis Buyers Club of Canada, located on Vancouver Island,in British Columbia. The Club sold marihuana and cannabis derivative products to members — people the Club was satisfied had a bonafide medical condition for which marihuana might provide relief, based on a doctor’s diagnosis or laboratory test.

It sold not only driedmarihuana for smoking, but edible and topical cannabis products — cookies, gel capsules, rubbing oil, topical patches, butters and lipbalms. It also provided members with recipe books for how to make such products by extracting the active compounds from driedmarihuana. Mr. Smith’s job was to produce edible and topical cannabis products for sale by extracting the active compounds from thecannabis plant. Mr. Smith does not himself use medical marihuana, and the Club did not have a production licence under the MMARs.

[6] On December 3, 2009, the police, responding to a complaint about an offensive smell, paid Mr. Smith a visit at hisapartment in Victoria, and saw marihuana on a table. They obtained a search warrant and seized the apartment’s inventory, whichincluded 211 cannabis cookies, a bag of dried marihuana, and 26 jars of liquids whose labels included “massage oil” and “lip balm”. Laboratory testing established that the cookies and the liquid in the jars contained tetrahydrocannabinol (“THC”), the main activecompound in cannabis.

THC, like the other active compounds in cannabis, does not fall under the MMARs exemption for driedmarihuana. The police charged Mr. Smith with possession of THC for the purpose of trafficking contrary to s. 5(2) of the CDSA, andpossession of cannabis contrary to s. 4(1) of the CDSA. [7] At his trial before Johnston J., Mr. Smith argued that the CDSA prohibition on possession, in combination with theexemption in the MMARs, was inconsistent with s. 7 of the Charter and unconstitutional because it limits lawful possession of marihuanafor medical purposes to “dried marihuana”.

Many witnesses, expert and lay, were called. At the end of the voir dire, the judge made thefollowing findings (2012 BCSC 544, 290 C.C.C. (3d) 91):

(1) The active compounds of the cannabis plant, such as THC and cannabidiol, have established medical benefits and theirtherapeutic effect is generally accepted, although the precise basis for the benefits has not yet been established.

(2) Different methods of administering marihuana offer different medical benefits. For example, oral ingestion of the activecompounds, whether by way of products baked with THC-infused oil or butter, or gel capsules filled with the active compounds, may aidgastro-intestinal conditions by direct delivery to the site of the pathology. Further, oral administration results in a slower build-up andlonger retention of active compounds in the system than inhaling, allowing the medical benefits to continue over a longer period of time,including while the patient is asleep. It is therefore more appropriate for chronic conditions.

(3) Inhaling marihuana, typically through smoking, provides quick access to the medical benefits of cannabis, but also hasharmful side effects. Although less harmful than tobacco smoke, smoking marihuana presents acknowledged risks, as it exposes patientsto carcinogenic chemicals and is associated with bronchial disorders. [8] The trial judge found that the restriction to dried marihuana deprives Mr. Smith and medical marihuana users oftheir liberty by imposing a threat of prosecution and incarceration for possession of the active compounds in cannabis.

He also found thatit deprives medical users of the liberty to choose how to take medication they are authorized to possess, a decision which hecharacterized as “of fundamental personal importance”, contrary to s. 7 of the Charter (para. 88). These limits offend the principles offundamental justice because they are arbitrary; limiting the medical exemption to dried marihuana does “little or nothing” to enhance thestate’s interest in preventing diversion of illegal drugs or in controlling false and misleading claims of medical benefit (para. 114).

Forthe same reason, the trial judge held that the restriction is not rationally connected to its objectives, and hence not justified under s. 1 ofthe Charter. [9] The majority of the Court of Appeal upheld the trial judge’s conclusions on the evidence and the constitutionalissues, although it characterized the object of the prohibition more broadly, as the protection of health and safety (2014 BCCA 322, 360B.C.A.C. 66). Chiasson J.A., dissenting, held that Mr.

Smith did not have standing to raise the constitutional issue, and that in any eventthe restriction did not violate s. 7 because medical users could legally convert dried marihuana into other forms. II. Discussion [10] Three issues arise: Mr. Smith’s standing to challenge the constitutionality of the prohibition; the constitutionality ofthe prohibition; and the appropriate remedy. A. Standing [11] The first question is whether Mr. Smith has standing to challenge the constitutionality of the prohibition. Weconclude that he does. The Crown took no issue with Mr. Smith’s standing at trial.

On appeal, although the issue was canvassed in oralargument, the Crown acknowledged that the principle “that no one can be convicted of an offence under an unconstitutional law” appliedto Mr. Smith (R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 313; C.A. reasons, at para. 147). Beforethis Court, the Crown adopted Chiasson J.A.’s dissenting position, arguing that Mr. Smith does not have standing because he does nothimself use medical marihuana and operated outside the regulatory scheme.

The restriction to dried marihuana therefore has “nothing todo with him” (C.A. reasons, at para. 151). [12] This overlooks the role the MMARs play in the statutory scheme. They operate as an exception to the offenceprovisions under which Mr. Smith was charged, ss. 4 and 5 of the CDSA. As the majority of the Court of Appeal said, the issue iswhether those sections of the CDSA, “as modified by the MMARs, deprive people authorized to possess marijuana of a constitutionallyprotected right by restricting the exemption from criminal prosecution to possession of dried marijuana” (para. 85). Nor does the factthat Mr.

Smith is not a medical marihuana user and does not have a production licence under the regime mean he has no standing. Accused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutionaleffects are not directed at them: see R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; Big M Drug Mart. Nor need accusedpersons show that all possible remedies for the constitutional deficiency will as a matter of course end the charges against them.

In caseswhere a claimant challenges a law by arguing that the law’s impact on other persons is inconsistent with the Charter, it is alwayspossible that a remedy issued under s. 52 of the Constitution Act, 1982 will not touch on the claimant’s own situation: see R. v.Latchmana, 2008 ONCJ 187, 170 C.R.R. (2d) 128, at para. 16; R. v. Clay (2000), (ON CA), 49 O.R. (3d) 577 (C.A.). [13] In this case, the constitutionality of the statutory provision under which Mr. Smith is charged is directly dependenton the constitutionality of the medical exemption provided by the MMARs: see Parker.

He is therefore entitled to challenge it. B. The Constitutionality of the Prohibition [14] This appeal asks the Court to determine whether restricting medical access to marihuana to dried marihuana violatess. 7 of the Charter:

7. 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. [15]

Section 7 permits the law to limit life, liberty and security of the person, provided it does so in a way that is notcontrary to the principles of fundamental justice. [16] The first question in the s. 7 analysis is whether the law limits life, liberty or security of the person. We concludethat it does. The legislative scheme’s restriction of medical marihuana to dried marihuana limits s. 7 rights in two ways. [17] First, the prohibition on possession of cannabis derivatives infringes Mr. Smith’s liberty interest, by exposing him tothe threat of imprisonment on conviction under s. 4(1) or s. 5(2) of the CDSA.

Any offence that includes incarceration in the range ofpossible sanctions engages liberty: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 515. The prohibitionalso engages the liberty interest of medical marihuana users, as they could face criminal sanctions if they produce or possess cannabisproducts other than dried marihuana. We cannot accede to the dissenting judge’s position on this point: the MMARs do not authorizemedical marihuana users to convert dried marihuana into its active compounds.

An authorization to possess medical marihuana is nodefence for a patient found in possession of an alternate dosage form, such as cannabis cookies, THC-infused massage oil, or gel capsulesfilled with THC. [18] Second, the prohibition on possession of active cannabis compounds for medical purposes limits liberty byforeclosing reasonable medical choices through the threat of criminal prosecution: Parker, at para. 92.

In this case, the state preventspeople who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — fromchoosing the method of administration of the drug. On the evidence accepted by the trial judge, this denial is not trivial; it subjects theperson to the risk of cancer and bronchial infections associated with smoking dry marihuana, and precludes the possibility of choosing amore effective treatment.

Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but moreeffective choice, the law also infringes security of the person: Morgentaler; Hitzig v. Canada (2003), (ON CA), 231D.L.R. (4th) 104 (Ont. C.A.). [19] The Crown says that the evidence adduced on the voir dire did not establish that the prohibition on alternative formsof cannabis intruded on any s. 7 interest, beyond the deprivation of physical liberty imposed by the criminal sanction.

It says that theevidence did not prove that alternative forms of medical marihuana had any therapeutic benefit; at most it established that the patientwitnesses preferred cannabis products to other treatment options. This submission runs counter to the findings of fact made by the trialjudge. After a careful review of extensive expert and personal evidence, the trial judge concluded that in some circumstances the use ofcannabis derivatives is more effective and less dangerous than smoking or otherwise inhaling dried marihuana.

A trial judge’sconclusions on issues of fact cannot be set aside unless they are unsupported by the evidence or otherwise manifestly in error: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

The evidence amply supports the trial judge’s conclusions on the benefits of alternativeforms of marihuana treatment; indeed, even the Health Canada materials filed by the Crown’s expert witness indicated that oral ingestionof cannabis may be appropriate or beneficial for certain conditions. [20] The expert evidence, along with the anecdotal evidence from the medical marihuana patients who testified, did morethan establish a subjective preference for oral or topical treatment forms.

The fact that the lay witnesses did not provide medical reportsasserting a medical need for an alternative form of cannabis is not, as the Crown suggests, determinative of the analysis under s. 7. While it is not necessary to conclusively determine the threshold for the engagement of s. 7 in the medical context, we agree with themajority at the Court of Appeal that it is met by the facts of this case. The evidence demonstrated that the decision to use non-driedforms of marihuana for treatment of some serious health conditions is medically reasonable.

To put it another way, there are cases wherealternative forms of cannabis will be “reasonably required” for the treatment of serious illnesses (C.A. reasons, at para. 103). In our view,in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person. [21] We conclude that the prohibition on possession of non-dried forms of medical marihuana limits liberty and securityof the person, engaging s. 7 of the Charter.

This leaves the second question — whether this limitation is contrary to the principles offundamental justice. [22] The trial judge found that the limits on liberty and security of the person imposed by the law were not in accordancewith the principles of fundamental justice, because the restriction was arbitrary, doing “little or nothing” to further its objectives, whichhe took to be the control of illegal drugs or false and misleading claims of medical benefit.

The majority of the Court of Appeal, whichfound that the objective of the prohibition was the protection of public health and safety (relying on Hitzig and Canada (AttorneyGeneral) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134), likewise concluded it did not further that objectiveand was thus arbitrary and contrary to the principles of fundamental justice. [23] It is necessary to determine the object of the prohibition, since a law is only arbitrary if it imposes limits on liberty orsecurity of the person that have no connection to its purpose: Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R.1101, at para. 98. [24] The Crown does not challenge the Court of Appeal’s conclusion that the object of the prohibition on non-dried formsof medical marihuana is the protection of health and safety. However, it goes further, arguing that the restriction protects health andsafety by ensuring that drugs offered for therapeutic purposes comply with the safety, quality and efficacy requirements set out in theFood and Drugs Act, R.S.C. 1985, c. F-27, and its regulations.

This qualification does not alter the object of the prohibition; it simplydescribes one of the means by which the government seeks to protect public health and safety. Moreover, the MMARs do not purport tosubject dried marihuana to these safety, quality and efficacy requirements, belying the Crown’s assertion that this is the object of theprohibition.

We therefore conclude that the object of the restriction to dried marihuana is simply the protection of health and safety. [25] The question is whether there is a connection between the prohibition on non-dried forms of medical marihuana andthe health and safety of the patients who qualify for legal access to medical marihuana. The trial judge concluded that for some patients,

alternate forms of administration using cannabis derivatives are more effective than inhaling marihuana. He also concluded that theprohibition forces people with a legitimate, legally recognized need to use marihuana to accept the risk of harm to health that may arisefrom chronic smoking of marihuana. It follows from these findings that the prohibition on non-dried medical marihuana undermines thehealth and safety of medical marihuana users by diminishing the quality of their medical care.

The effects of the prohibition contradictits objective, rendering it arbitrary: see Bedford, at paras. 98-100. [26] The Crown says there are health risks associated with extracting the active compounds in marihuana foradministration via oral or topical products. It argues that there is a rational connection between the state objective of protecting healthand safety and a regulatory scheme that only allows access to drugs that are shown by scientific study to be safe and therapeuticallyeffective. We disagree.

The evidence accepted at trial did not establish a connection between the restriction and the promotion of healthand safety. As we have already said, dried marihuana is not subject to the oversight of the Food and Drugs Act regime. It is thereforedifficult to understand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permittingthem to smoke or vaporize dried marihuana. Moreover, the Crown provided no evidence to suggest that it would.

In fact, as noted above,some of the materials filed by the Crown mention oral ingestion of cannabis as a viable alternative to smoking marihuana. [27] Finally, the evidence established no connection between the impugned restriction and attempts to curb the diversionof marihuana into the illegal market. We are left with a total disconnect between the limit on liberty and security of the person imposedby the prohibition and its object. This renders it arbitrary: see Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331,at para. 83. [28] We conclude that the prohibition of non-dried forms of medical marihuana limits liberty and security of the person ina manner that is arbitrary and hence is not in accord with the principles of fundamental justice. It therefore violates s. 7 of the Charter. [29] The remaining question is whether the Crown has shown this violation of s. 7 to be reasonable and demonstrablyjustified under s. 1 of the Charter.

As explained in Bedford, the s. 1 analysis focuses on the furtherance of the public interest and thusdiffers from the s. 7 analysis, which is focused on the infringement of the individual rights: para. 125. However, in this case, theobjective of the prohibition is the same in both analyses: the protection of health and safety. It follows that the same disconnect betweenthe prohibition and its object that renders it arbitrary under s. 7 frustrates the requirement under s. 1 that the limit on the right berationally connected to a pressing objective (R. v. Oakes, (SCC), [1986] 1 S.C.R. 103).

Like the courts below, weconclude that the infringement of s. 7 is not justified under s. 1 of the Charter. C. Remedy [30] A law is “of no force or effect” to the extent it is inconsistent with the guarantees in the Charter: s. 52 of theConstitution Act, 1982. We have concluded that restricting medical access to marihuana to its dried form is inconsistent with theCharter. It follows that to this extent the restriction is null and void. [31] The precise form the order should take is complicated by the fact that it is the combination of the offence provisionsand the exemption that creates the unconstitutionality.

The offence provisions in the CDSA should not be struck down in their entirety.Nor is the exemption, insofar as it goes, problematic — the problem is that it is too narrow, or under-inclusive.

We conclude that theappropriate remedy is a declaration that ss. 4 and 5 of the CDSA are of no force and effect, to the extent that they prohibit a person with amedical authorization from possessing cannabis derivatives for medical purposes. [32] We would reject the Crown’s request that the declaration of invalidity be suspended to keep the prohibition in forcepending Parliament’s response, if any. (What Parliament may choose to do or not do is complicated by the variety of available optionsand the fact that the MMARs have been replaced by a new regime.) To suspend the declaration would leave patients without lawfulmedical treatment and the law and law enforcement in limbo.

We echo the Ontario Court of Appeal in Hitzig, at para. 170: “Asuspension of our remedy would simply [continue the] undesirable uncertainty for a further period of time.” III.

Disposition [33] We would dismiss the appeal, but vary the Court of Appeal’s order by deleting the suspension of its declaration andinstead issue a declaration that ss. 4 and 5 of the CDSA are of no force and effect to the extent that they prohibit a person with a medicalauthorization from possessing cannabis derivatives for medical purposes. [34] At no point in the course of these proceedings did the British Columbia courts or this Court issue a declarationrendering the charges against Mr. Smith unconstitutional. In fact, following the voir dire, the trial judge refused to grant a judicial stayof proceedings.

Despite this, the Crown chose not to adduce any evidence at trial. As a result of the Crown’s choice, Mr. Smith wasacquitted. We see no reason why the Crown should be allowed to reopen the case following this appeal. Mr. Smith’s acquittal isaffirmed. Appeal dismissed. Solicitor for the appellant: Public Prosecution Service of Canada, Vancouver. Solicitors for the respondent: Tousaw Law Corporation, Duncan, British Columbia; Conroy and Company, Abbotsford;Henshall Scouten, Vancouver; Bibhas D. Vaze, Vancouver. Solicitors for the intervener Santé Cannabis: Grey Casgrain, Montréal.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Ruby Shiller Chan Hasan, Toronto. Solicitors for the intervener the Canadian Civil Liberties Association: Paliare Roland Rosenberg Rothstein, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association: Gratl & Company, Vancouver. Solicitors for the interveners the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario: Burstein Bryant Barristers, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto; Canadian HIV/AIDS Legal Network, Toronto .