R. v. Jamali, 2011 ONCJ 196

Citation: R. v. Jamali, 2011 ONCJ 196 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- SARAH JAMALI REASONS FOR JUDGMENT Duncan J. 1. The defendant is charged with possession of marihuana. 2. An application has been brought as a pre-trial motion grounded on the argument that deficiencies in the regulatory scheme forauthorized possession and supply of marihuana for medical purposes leads to the conclusion that the offence charged was of no force andeffect as of the date of its alleged occurrence, March 2 2010. 3.

The exact nature of the application is of some importance. Written material prepared by the defendant without legal assistancestyled the application as a constitutional issue. However Mr Champ, counsel for the defendant appearing before me, clarified that he wasnot seeking to have me declare any statutory or regulatory provision to be unconstitutional or Charter infringing. Rather his argument isthat decided case law has already determined the constitutional issue and the net result of those decisions is that the offence charged wasnot in force and effect as of March 2 2010. 4.

The application should therefore be considered a pre-trial motion to quash on the basis that the count charged does not disclose anoffence known to law. The Crown agrees with this characterization. The Legal Background and Argument: 5. The background and arguments can be summarized as follows: In R v Parker (2000) (ON CA), 146 CCC3d193 the Court of Appeal held that blanket criminalization of possession of marihuana infringed the

section 7 Charter right to liberty andsecurity of the person of those individuals who required cannabis for medical reasons. The Court held, accordingly, that the offence ofpossession of marihuana, section 4(1) CDSA, was to be considered of no force and effect unless allowance was made for medicalexemption. The exemption scheme must address both possession and supply. The Court in Parker suspended the effective date of itsdeclaration of invalidity for a year to July 30 2001 to permit the government to draft and enact appropriate regulations. 6.

The government responded with the Medical Marihuana Access Regulations (MMAR) which provided for a licensing scheme forusers certified by doctors to require cannabis for medical reasons and for producers to supply those certified users. These regulationswere considered by the Court of Appeal in 3 decisions released the same day, the leading one being Hitzig v Canada (2003) (ON CA), 177 CCC3d 449.

The Court held that parts of the MMAR were overly restrictive in the conditions under which medicalmarihuana could be lawfully possessed and lawfully supplied to those who required it.[1] In the result, the constitutional problem

identified in Parker had not been successfully remedied by the MMAR and it followed that the declaration of invalidity declared inParker was not avoided. 7.

The Court in Hitzig determined that the appropriate remedy was to fix the problem by striking down the overly restrictiveconditions, leaving from that day on a constitutionally acceptable exception to a constitutionally valid offence.[2] But the offence ofpossession of marihuana was of no force and effect during the period that the overly restrictive regulation was in force, that is, betweenthe effective date of the Parker declaration (July 30 2001) and the Hitzig fix. (October 7 2003). 8.

The Hitzig declaration of invalidity applied to all those charged with possession of marihuana within the period – medical usersand non-medical users alike: R v J.P (2003) (ON CA), 177 CCC3d 522 (Ont CA) at par 11. 9. Following Hitzig the government enacted new regulations effective December 2003. These regulations re-enacted two of thesupply restrictions struck down in Hitzig but added provision for a government supply of marihuana through a company, Prairie PlantSystems (PPS), granted a monopoly to grow and supply marihuana from a mine in Flin Flon Manitoba.

The government contention wasthat provision of this extra supply source cured any supply deficiencies that existed without it and that the overall scheme therefore metconstitutional requirements. 10. The Applicant relies on two decisions where courts have disagreed with that contention.

In both, the courts heard evidence to theeffect that the PPS marihuana was of poor quality, that it was not available in certain strains that would be most beneficial to some usersand that its acquisition was bound up in so much red tape that the medically needy user was still, as a practical matter, forced back toreliance on the overly restricted private source or the black market: Sfetkopoulos et al v Canada 2008 FC 33 , [2008] 3 FCR399 and R v Beren 2009 BCSC 429 , [2009] B.C.J. No 618(BCSC). 11. Again the government responded with an amended regulation effective May 14 2009.

The Crown argues that this new regulationwas in force at the time of the Applicant’s alleged offence (March 2 2010) and that no court has found it to be constitutionally deficient.The Applicant argues that the new regulation addressed the defect found in Sfetkopoulos but not the defect found in Beren[3] which wasnot addressed until a further regulation was enacted on March 11 2010, after the present offence.

The Applicant therefore argues that theconstitutional invalidity of the MMAR scheme as found in Beren remained un-remedied as of the date of the present offence, March 22010, with the result, by parity of reasoning with Hitzig and Parker, that the offence of possession of marihuana in 4(1) of the CDSA wasof no force and effect at that time. Analysis: 12. As noted above, the Applicant has framed the argument as turning on the application of decided case law and not as a fresh attackon the MMAR regulatory scheme.

To succeed, it must be established that there is binding – or at least compelling – case authoritysupporting the following two conclusions: 1. That the MMAR scheme in force at the time of the offence, March 2 2010, was constitutionally deficient and 2. That the effect of that constitutional deficiency was to render the offence of possession of marihuana of no force and effect as ofMarch 2 2010. 13. Dealing with the second point first, the Crown submits that neither Sfetkopoulos nor Beren found that the offence of possession ofmarihuana was of no force and effect.

The declaration pronounced in both cases was to find the MMAR to be invalid – but not theoffence. But in my view, it follows from Parker/Hitzig, binding on me, that the offence of possession will be of no force and effectduring any period that is not covered by a constitutionally acceptable medical marihuana regime. [4] Accordingly, if the defendantsucceeds on the first point, in my view he is entitled to succeed on this application.[5] 14. However, with respect to the first point, despite the able argument presented by Mr.Champ, I do not think it can succeed.

Shortlyput, it is my view that the point in issue is not one that can be determined without evidence - specifically evidence directed at thequestion of whether there existed a constitutionally acceptable supply of marihuana at the time in question, March 2010. 15. The cases relied upon by the Applicant - Sfetkopoulos and Beren - are not binding upon me. The question becomes whether theyshould be treated as compelling authority and followed. With respect, I don’t think so. They deal with a different time and a differentplace, and for that matter, a different version of the MMAR. They are fact and evidence driven.

Both cases decide that a safe, secure andreliable licit supply of medically beneficial marihuana for authorized users was not available at the times under consideration[6]. Thesedecisions are essentially factual or, at highest, are fact- based legal conclusions. Such conclusions are not readily transferable from onecase to another and certainly not from one point in time to another point in time, far removed. 16. The factual/legal landscape involved is not static in time.

Quite apart from changes in the regulations[7], it seems to me that thecentral factual issue of adequacy of government supply (and hence over-all supply and hence constitutional compliance) may be highlyfluid, subject to changes in practices and procedures.

For example, PPS might begin producing additional strains; a government directiveor change in procedure might substantially reduce red tape.[8] No evidence has been presented to me at all, much less evidence thatwould enable me to conclude that the same situation found by the courts in Sfetkopoulos and Beren pertained at the time of the presentoffence, March 2010. In my opinion, it would therefore not be appropriate to apply those cases or treat them as authority speaking toMarch 2010. 17. Accordingly, it is my view that the Applicant has not established the first point mentioned above.

The argument therefore fails. Theapplication must be dismissed.

Abuse of Process: 18. The Applicant argues that the prosecution is an abuse of process. It is submitted that it is wrong for the Crown to continue toprosecute an offence of flickering legitimacy – of on-again off-again here and there constitutionality brought about by the government’sobstinate refusal to sincerely and realistically address the medical marihuana issue. Instead it has engaged in a sort of cat and mousegame with the courts and the Charter for over a decade. 19. The test is whether the continued prosecution offends society’s sense of fair play. A stay should be granted in only the clearest ofcases.

This is not such a case. The Applicant has no medical issues. While she is entitled to coat-tail declarations of unconstitutionality, inmy view consideration of whether her prosecution offends fairness must have regard to her particular circumstances and not those ofsomeone else who may be being victimized by government inaction. 20. The criminalization and prosecution of marihuana possession is constitutionally legitimate: R v Malmo-Levine 2003 SCC 74, [2003] 3 SCR 571.

There is nothing about the Applicant’s case that would detract from that general rule and render herprosecution offensive to notions of fairness. 21. The application is dismissed. March 31 2011 B Duncan J P Champ for the Applicant B Puddington for the Crown [1] In particular the requirement for a second medical specialist’s certification of need was found to be an unreasonable restriction onauthorization to possess (ATP).

As to supply, the regulations provided for a designated producer licence, DPL, but the Court foundcertain restrictions on availability - the requirement that a DPL holder could not be remunerated (s 34(2), that a DPL holder could notgrow for more than one holder of an ATP (s 41(b)) nor combine his growing with more than two other DPL holders (s.54) - wereunreasonable and continued to create a situation infringing

section 7: