R. v. LeClair, 2010 NBPC 37

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF WOODSTOCK Citation: R. v. LeClair, 2010 NBPC 37 Date: 2010-12-03 Docket: 03604507 Between: Her Majesty, The Queen, - and - Todd Terrance LeClair Before: Date(

s) of Hearing: Chief Judge R. Leslie Jackson July 23 & October 14, 2010 Appearances: Leonard J. MacKay - for the Crown Todd Terrance LeClair - Per se with Judy Jamieson as Agent JACKSON, C.P.C.J. Introduction: [ 1 ] Todd Terrance LeClair (LeClair) was charged with possession of marihuana contrary to section 4(1) of the Controlled Drugs and Substances Act (the Act ) following the execution of a search warrant at his home in Upper Hainesville on October 19, 2009. [ 2 ] At the time of the execution of the search warrant LeClair had in his possession a Medical Practioner’s Declaration signed by Dr. Douglas D.

Smith in support of his application for an authorization to produce and possess marihuana pursuant to the Marihuana Medical Access Regulations (the MMAR’s). While there is a dispute as to whether or not LeClair had filed the Application, it is clear that on October 19, 2009 he had not yet received an Authorization to Possess marihuana (an ATP). He did receive an ATP on January 13, 2010. [ 3 ] Prior to trial LeClair filed a written Notice of Application and Constitutional issue wherein he asks this Court to: (

a) declare sections 32 (d)and(

e) of the MMAR to be unconstitutional for limiting ATP’s per grower and for limiting growers per site respectively; (

b) declare the entire MMAR to be unconstitutional for delays in processing both original as well as renewal and amendment applications;

And to: (

c) declare section 4(1) and 7(1) of the Act of no force and effect “with respect to marihuana while the MMAR exemption is unconstitutional”. Facts [ 4 ] There is no issue as to LeClair’s possession of marihuana. At trial he admitted to possession of the marihuana found in his home. The evidence of Cpl.

Munro establishes that 215 grams of bud marihuana and 1300 grams of “shake” were seized at LeClair’s home, a sample of which was tested by Health Canada and confirmed as Cannabis (Exhibit 8 ). [ 5 ] LeClair testified that in March 2009 he applied for an exemption under the MMAR Regulations and that he received at that time what he referred to as “a prescription” from Dr. Smith for marihuana for relief from chronic pain. He admitted that he did not receive an ATP from Health Canada until January 13, 2010, some ten months after his application.

He also spoke of the delays in getting a supply of marihuana from Prairie Plant Systems Inc., the only legal supplier of the product. [ 6 ] LeClair also called four witnesses to speak to what is alleged to be systemic and intolerable delays in the processing of initial, renewal and variation applications under MMAR. All spoke of their frustration in waiting for months for what they all referred to as “their medicine”, that is marihuana, and to the difficulty, if not impossibility, of finding out the status of their application from the bureaucracy at Health Canada.

Alvin Duffy said he filed his application on February 4, 2010, receipt was acknowledged by Health Canada on March 4 and he received his ATP on July 16 but only after intervention by his Member of Parliament. Luke Paul said he applied on April 14, 2010 and as of July 23 had neither received an acknowledgement of receipt nor any other information from Health Canada. Chris Pelletier said he applied on June 1, 2010 and had heard nothing from Health Canada although he agreed that he had moved in the interim.

Tim Murphy, who has had an ATP since October 6, 2009 and who operates a store in Grand Falls, New Brunswick, Twisters Medicinal Smoke Shop, dedicated to assisting people who are going through the process to obtain an ATP, said it took him between 16 to 18 weeks to obtain his original ATP and when his doctor recommended an increase in dosage from three to five grams per day it took five months to have his ATP amended. Murphy’s ATP will have to be renewed in October 2010, as an ATP is good for only one year, and currently it requires 6 to 8 weeks to process even a renewal. Mr.

Murphy’s biggest complaint, however, relates to the inability to be able to talk to anyone other than an intake worker (who actually works for Service Canada not Health Canada), when trying to get information about an application. [ 7 ] By way of rebuttal to the testimony of the above noted Defence witnesses the Crown called Ms. Ritchot, the Director of the Bureau of Medical Cannabis at Health Canada and the person responsible for the oversight and administration of the Marihuana Medical Access Program and the MMAR. Ms.

Ritchot prepared and filed with the court an affidavit, Exhibit 12 , in which she gives a general overview of the MMAR Regulations, the application process and what must be submitted, the Bureau’s procedure for processing client telephone inquiries, and finally her response to the testimony of the defence witnesses. [ 8 ] Ms. Ritchot testified that beginning in September 2009 her Bureau began to observe a very sharp increase in the number of applications received.

At first they were unsure if this was an anomaly or a trend, however by November of that year it became clear that a new trend was establishing itself and that the Bureau’s prediction that the number of new and renewal applications would gradually increase and double over two years was inaccurate. At paragraph 114 of her affidavit Ms. Ritchot says: “114. The recent processing time increase can be explained by the unpredictable volume of new applications, and resulting renewals and amendments, received since the fall of 2009.

As can be seen from the following table, the number of new and renewal applications received has more than tripled between January 2008 and April 2010, resulting in an increase of the number of renewal applications received since ATP and/or licences to produce are renewed on a yearly basis. Consequently, every month, the number of new and renewal applications to be processed increased as per the tables below.

Considering the yearly increase trend for 2010, Health Canada projects that this rapid increase in applications will continue.” New applications Received Renewal applications Received New+Renewal 2008 January 117 144 261 February 142 142 284 March 125 122 247 April 160 193 353 May 124 165 289 June 140 198 338 July 131 207 338 August 102 161 263 September 146 259 405 October 158 221 379 November 150 198 348 December 115 167 282 2009 January 138 186 324 February 174 220 394 March 204 260 464 April 194 254 448 May 227 245 472 June 253 288 541 July 245 283 528 August 258 245 503

September 314 336 650 October 308 297 605 November 338 301 639 December 198 266 464 2010 January 261 341 602 February 312 298 610 March 399 406 805 April 408 413 821 She continues at paragraph 116: “116. As can be seen from the tables, when Mr. Leclair’s application was received on October 23, 2009, there was a sharp increase in the number of applications received. Consequently, the increase in the number of applications received in the fall of 2009 impacted the service standard of 8 to 10 weeks for processing applications, and in Mr.

Leclair’s case, added an additional two weeks to this process.” [ 9 ] At paragraphs 124 to 136 of her affidavit Ms. Ritchot details the steps taken by her division of Health Canada to restore processing time to its operational standard of 8 to 10 weeks which is expected will occur by the end of 2010. Suffice it to say that it is obvious that Health Canada has recognized the issue of the timeliness of processing of applications and has taken what I consider to be appropriate steps to address that issue. [ 10 ] Ms.

Ritchot’s affidavit contains as Exhibit “C” a copy of LeClair’s application for an ATP which is dated March 15, 2009 but was not received by Health Canada until October 23, 2009. In subsequent Exhibits “D”, ”E”, and “F” which are call logs of LeClair’s conversations with MMAD representatives, Mr. LeClair and /or his girlfriend Ms. Judy Jamieson, are reported to have indicated on different occasions that the application was mailed in March, May, June or July 2009. This is in contrast to LeClair’s trial testimony that he mailed the application in March 2009, that is, around the time that Dr.

Smith signed the Medical Practitioner’s Declaration and Signature. I am satisfied on the evidence before me that the application was, in fact, not mailed in March 2009 and was in all probability not mailed until after the execution of the search warrant on October 19, 2009. Indeed LeClair testified that in March 2009 he received his “prescription” from Dr. Smith, which I infer is the Medical Practioners Declaration, and that he showed it to Cpl Munro at the time of execution of the search warrant. This was confirmed by Cpl. Munro.

It is therefore obvious that the application had not been submitted on October 19, 2009. [ 11 ] Finally the testimony of Ms. Ritchot explains the reason for the delays in processing Mr. Murphy’s amendment to ATP and Mr. Duffy and Mr. Pelletier’s applications for an ATP. In all cases delays were exacerbated by incomplete forms or lack of required information. In the case of Mr. Paul it appears that his application was approved on July 27, 2010 some four days after he had testified.

Analysis and Decision [ 12 ] LeClair led no evidence and made no submissions in argument in support of his first request to have sections 32(

d) and (

e) of the MMAR declared unconstitutional and I do not propose to deal with this issue. In any event those sections are irrelevant to any issue which I have to decide in this case. [ 13 ] LeClair’s position is that the eleven months he says it has taken Health Canada to process his application for an ATP constitutes an unconstitutional violation of his

Section 7 right to life guaranteed under the Canadian Charter of Rights and Freedoms . [ 14 ] The Supreme Court held in R. v. Morgentaler et al 1988 CanLII 90 (SCC) , [1988] 37 C.C.C. (3d) 449 that when Parliament creates a defence to a criminal charge the defence should not be illusory or so difficult to attain as to be practically illusory.

That case dealt with the therapeutic abortion provisions in the Criminal Code which the Court found to be apparently neutral on their face but resulting in practical terms in abortions being absolutely unavailable in many areas as the provisions did not provide a clear legal standard to be applied by the therapeutic abortion committees in considering applications.

The Court went on to say that while Parliament must be given room to design an appropriate administrative and procedural structure for bringing into operation a particular defence to criminal liability, if that structure is too manifestly unfair, having regard to the decision to be made, as to violate the principles of natural justice then that structure may be struck down. [ 15 ] The issue here is whether the structure set out in the MMAR is manifestly unfair because of the delays in processing times.

LeClair also suggests that the procedure is manifestly unfair as the delays prevent him from having timely access to his “medicine” pointing out that if Dr. Smith had issued a prescription for Dilaudid for his chronic pain instead of marihuana he would have been able to access his medicine in hours not weeks or months as required under the MMAR scheme. [ 16 ] In my view the latter submission must fail for several reasons. Firstly, despite Mr. LeClair’s use of the term “prescription” to refer to Dr. Smith’s “Medical Practitioner’s Declaration and Signature”, that document is not a prescription.

Indeed no physician can prescribe marihuana as it is a prohibited drug. The Declaration is a necessary part of an application for an ATP but is not on its own a legal authorization to possess marihuana. Secondly, the fact that the MMAR procedure was not the fastest method of receiving the “medicine” does not make the scheme manifestly unfair as long as the wait times were reasonable. I shall return to this issue shortly. Finally, unlike the situation with the abortion committees where great numbers of applicants were denied an abortion, all those who testified, except for Mr.

Pelletier, received their ATP which is an indication that the scheme was functional. LeClair received his ATP within 12 weeks, Mr. Murphy received his amended ATP within 4 weeks of having supplied all the required information, Mr. Duffy’s application required 19 weeks to process because of incomplete information, and Mr.

Paul received his ATP in 15 weeks. [ 17 ] While the delays in processing times for all ATP’s are greater than the operational standards of 8-10 weeks, I am satisfied that Health Canada quickly recognized the problem and took the necessary steps to address the issue with a plan to return to those standards

in a reasonable amount of time. For those reasons I cannot conclude that those delays rendered the administrative and procedural structure created by Parliament in the MMAR to be manifestly unfair and to violate LeClair’s

Section 7 Charter Rights. [ 18 ] Finally, LeClair asks that I declare sections 4(1) and 7(1) of the Act to be unconstitutional. Mr. LeClair is not charged with an offence under section 7(1) of the Act and I do not propose to deal with the challenge to that section. His challenge to the constitutionality of section 4(1) is a repeat of the argument he made on July 5, 2010 in the Court of Queen’s Bench of New Brunswick in an attempt to have the Information with which I am dealing quashed.

In his decision, reported at 2010 NBQB 237 (CanLII) , 2010 N.B.Q.B. 237 , in which he canvasses the law on this subject Morrison, J. says at paragraphs 23 and 24: “23. The Applicant argues that because the Courts in Sfetkopoulos and Beren declared provisions of the MMARs to be unconstitutional, that the operation of section 4(1) of the CDSA is placed in abeyance in the same way that the declaration of unconstitutionality in the Parker case resulted in

section 4 of the CDSA being inoperative until the constitutional defects in the MMARs were rectified. 24. The Applicant’s argument fails for several reasons. First, at the time of Parker no regulations were in effect permitting an exemption for medical marihuana use. It was the absence of any regulatory exemption to the blanket prohibition that underpinned the Court’s decision to declare

section 4 unconstitutional. However, by the time of the decision in Hitzig there were regulations in place, albeit flawed, permitting a medical exemption. As a result, the Court found that

section 4 of the CDSA was constitutionally valid and the only issue was whether specific provisions of the regulation passed constitutional muster. The Applicant’s argument fails to appreciate this distinction.” [ 19 ] Justice Morrison went on to conclude that section 4(1) of the Act constituted valid legislation, a conclusion with which I agree and adopt. Our Court of Appeal in R. v. Wood , 2006 NBCA 49 , which dealt with the constitutionality of section 5(1) of the Act , rejected an argument based on the same line of cases on which LeClair relies and declared that

section to be valid legislation. Both these decisions represent binding authority on this court and I reject the argument that section 4(1) is unconstitutional. [ 20 ] In his testimony in this trial, LeClair asserted, as he apparently did in his application before Justice Morrison, that once he got the signed form, in his words, “prescription”, from Dr. Smith that he believed he was “good to go” and could possess and grow his own marihuana for medicinal purposes.

He also said that Health Canada provided him with no instruction on what he should do during the period in which his application for an ATP was being processed. [ 21 ] While LeClair did not specifically use the term “officially induced error” in his trial arguments I propose to deal with the above assertions on that basis. In R. v.

Cancoil Thermal Corp. and Parkinson , 1986 CanLII 154 (ON CA) , 27 C.C.C. (3d) 295 at 303 Lacourcière J.A. said: “The defense of “officially induced error” is available as a defence to an alleged violation of a regulatory statute where and accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable.

The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.” The Supreme Court affirmed that particularly in R. v. Jorgensen 1995 CanLII 85 (SCC) , [1995] 102 C.C.C. (3d) 97 where Lamer C.J.C. said at paragraph 36: “ 36. In

summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in her actions.” [ 22 ] In my view LeClair has not shown that he relied on the advice of any official in Health Canada in coming to his belief that Dr.

Smith’s “prescription” was authority for his possession of marihuana, and even if he could, it could not be said that such reliance was reasonable. Even a cursory review of the documents required to be filed with the application for an ATP (see Exhibit 12 ), would clearly indicate that there is no authorization to possess marihuana until the application has been accepted. In my view the defence of officially induced error is not available to Mr. LeClair. [ 23 ] In conclusion the following are my findings: (

a) I make no ruling on the constitutionality of either

section 32(

d) or 32(

e) of the MMAR: (

b) The MMRA’s are not unconstitutional because of delays in the processing of either new, renewal or amendment ATP applications;

(c) Section 4(1) of the Act is valid legislation and has never been repealed; And: (

d) the Defendant, Todd Terrance LeClair, had possession of more than thirty grams of Cannabis on the date and in the place alleged and is therefore guilty as charged. Dated at Woodstock this 3 rd day of December, 2010. __________________________ R. Leslie Jackson , C.P.C.J.