R. v. Woolsey Date:, 2018 BCPC 4

Citation: R. v. Woolsey Date: 20180115 2018 BCPC 4 File No: 84714 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT JAMES WOOLSEY RULING ON APPLICATION OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: O. L. Bick and C. Fast Appearing in person: R. J. Woolsey Place of Hearing: Abbotsford , B.C. Dates of Hearing: November 20-23, December 12, 2017 Date of Judgment: January 15, 2018

Introduction [1] Robert John Woolsey is charged with five counts of trafficking in marihuana contrary to section 5(1) of the Controlled Drugsand Substances Act (the “CDSA”). The offences are alleged to have occurred at or near the community of Deroche (which is within theDistrict of Mission), British Columbia on four separate days: September 24, September 25, November 19 and November 21, all in 2015. [2] The facts of these alleged offences are not in dispute. At the times material to these charges, Mr.

Woolsey operated a branch ofthe BC Pain Society, known as a Compassion Club, which sold marihuana and derivative products to those possessing the properdocumentation to possess the substance pursuant to a valid medical authorization. The Crown alleges that on the alleged offence dates,Mr. Woolsey sold marihuana and other derivative products to undercover police officers who did not produce proper documentationallowing them to possess what was being sold to them. [3] Mr. Woolsey takes the position that what he was doing was not against the law.

At the time that these offences were alleged tohave occurred, a legal framework was in place, known as the Marihuana for Medical Purposes Regulations (the MMPR). On February24, 2016, a decision of the Federal Court of Canada, made in Vancouver, BC, declared that the MMPR were invalid because theycontravened

section 7 of the Canadian Charter of Rights and Freedoms. The reasons for judgement in that case, Allard v. Canada, arereported at 2016 FC 236 , [2016] 3 F.C.R. 303. The court’s declaration was suspended for six months in order to allow theGovernment of Canada to respond with new regulations. [4] In an earlier case, R. v. Parker, (2000) (ON CA), 49 O.R. (3d) 481, the Ontario Court of Appeal haddeclared that the prohibition against possession of marihuana under

section 4 of the CDSA was unconstitutional when there was noconstitutionally valid scheme in place that allowed persons to possess marihuana for valid medical purposes. Mr. Woolsey says that thiswas the correct course of action to take and says that this reasoning should be applied to the charges brought against him. Since theMMPR were invalid at the time of his alleged offences, he argues that it should follow that

section 4 of the CDSA, which made it anoffence to possess marihuana, was once again unconstitutional. This means that what he was doing was not against the law at the time hewas doing it. Therefore, the information charging him with the offences is defective because it does not disclose a valid offence. At thisstage of the proceedings, he asks for an order quashing the information pursuant to

section 601 of the Criminal Code. [5] In response, the Crown says that just because the MMPR were found to be invalid, it does not automatically follow that thesections of the CDSA making it an offence to possess, grow or sell marihuana are also invalid. The Crown says firstly that the law isotherwise, and if the Federal Court had intended to invalidate the relevant sections of the CDSA, it would have ordered so. Since it didnot do so, those sections remain in force and on the alleged offence dates, it was against the law for Mr. Woolsey to do what he did.Secondly, the Crown says that the same argument that Mr.

Woolsey is making has been made before and has been rejected by SuperiorCourts of this province, whose decisions are binding on this court. [6] At the conclusion of argument on this point, I reserved decision and informed the parties that I would provide written reasonsaddressing Mr. Woolsey’s argument. If the Crown is correct that the issue is decided by case law that is binding on me, the simplercourse of action might be simply to dismiss the application on that basis alone.

While conventional wisdom might suggest that on thismatter the less said the better, I have decided to confront the arguments in more detail for two reasons:

(1) Although he is self-represented, Mr. Woolsey has presented his case in professional manner, carefully considered and respectful of the process of this court.It seems intellectually dishonest and inconsiderate to simply say “I have no choice, I have to follow the decisions of the Superior Courts”without considering the merits of Mr. Woolsey’s arguments; and

(2) No matter the outcome of this matter before this court, it isexpected that the unsuccessful party will seek appellate review of the my decision, and it would be of some benefit to have as complete arecord as possible.

Section 601 of the Criminal Code [7] Mr. Woolsey has brought an application under section 601(1) of the Criminal Code for an order quashing the information inthis matter. This

section reads as follows: 601

(1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall betaken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only byleave of the court before which the proceedings take place. The court before which an objection is taken under this

section may, if itconsiders it necessary, order the indictment or count to be amended to cure the defect. [8] The term “indictment” is defined to include an information, which is the charging document when, as in this case, a person ischarged with one or more offences punishable on

summary conviction. Mr. Woolsey did not bring this application until after the takingof evidence, but the Crown has not pressed this objection, and I have allowed Mr. Woolsey to make this application after entry of hisplea, mindful of his status as a self-represented litigant, and because the determination of this issue may help expedite the matter. I alsonote that Mr. Woolsey did not actually enter a plea, but rather he declared that he was standing mute. It has been held in R. v.

Wilson(1986) (MB KB), 26 C.C.C. (3d) 8 (Manitoba Q.B.) that where this occurs, an accused has not actually entered a pleaand does not require the leave of the court to bring this application. Though not binding on me, I find the reasoning in that case to bepersuasive. Decisions of Superior Courts Which Bind This Court [9] There is a legal doctrine known as stare decisis (a Latin phrase which means “to stand by that which is decided”). This doctrinerequires a court to follow its own previous decisions or those of higher courts. The rationale for stare decisis was explained well by thelate Mr. Justice J. O.

Wilson in his text “A Book for Judges” at pages 92-93, when he gave as one of the reasons for it “the desirability ofuniformity in the application of the law so that B shall not on Tuesday lose a lawsuit based on the same facts and principles that haveenabled A to win a lawsuit on Monday.” [10] As a general rule, trial courts are bound not only by decisions of the same court, but also by decisions of courts that have thepower to reverse that court’s decision on appeal. A court in one province is not bound by decisions of courts of other provinces or

territories, even those at an appellate level, but the court may find the reasoning of the court from another province persuasive. Tosummarize how this applies to the Provincial Court of British Columbia: 1. All courts in Canada are bound by decisions of the Supreme Court of Canada, and all trial courts must follow decisions of theirown Court of Appeal. Woods Manufacturing Co. Ltd. v. The King [1951] S.C.R. 515; R. v. Northern Electric Co. Ltd. (1955) (ON SC), 3 D.L.R. 449 (Ont. H.C.J.). 2.

Where a higher court has later decided that a decision of a lower court is incorrect, a court is no longer obliged to follow thatruling of the lower court. Young v. Bristol Aeroplane Co. Ltd. [1946] A.C. 163 at p. 169. 3. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2)where there is a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate" (Canada (AttorneyGeneral) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42). 4.

Although persuasive, decisions of courts of other provinces of equal or higher jurisdiction are not binding under the principle ofstare decisis. Wolf v. R. (SCC), [1975] 2 S.C.R. 107; R. v. Vu [2004] BCJ 824; 2004 BCCA 230. [11] In R. v. Vu, Donald J.A. summarizes the law pertaining to the Provincial Court following decisions of other provinces asfollows: 24 …First, a judge of the Provincial Court of British Columbia is not bound to follow a decision of the Court of Appeal of anotherprovince, although a judge may find the reasoning persuasive and give effect to it.

Second, when faced with conflicting decisions, onefrom the Court of Appeal of a different province and another from a higher court within the jurisdiction, the Provincial Court is bound tofollow the latter. [12] Where there are conflicting decisions of courts of coordinate jurisdiction, the more recent decision is to be preferred, if it isreached after full consideration of the earlier decision. Bingo City Games Inc. v. British Columbia Lottery Corp. [2004] BCJ No. 2397(B.C.S.C.); Re. Harrison [1983] BCJ No. 1787 (B.C.S.C.); Aho v. Kelly [1998] BCJ No. 1400 (B.C.S.C.) R. v. Parker [13] Mr.

Woolsey argues that at the time he is alleged to have committed the offences he is charged with, it was not against the lawto possess marihuana and therefore selling the substance was also not illegal. He argues that

section 4 of the CDSA makes it an offence topossess the substance “except as authorized under the regulations.” At the time of his alleged offences, regulations existed that were laterheld to be invalid because they were unconstitutional. Since there were no valid regulations in place, the entire

section is invalid. This isessentially what was held in a decision of the Ontario Court of Appeal in R. v. Parker (2000) (ON CA), 146 C.C.C.(3d) 193. [14] In Parker the accused was charged with cultivating marijuana under the now-repealed Narcotic Control Act, R.S.C. 1985,chapter N-1. He was also charged with possession of marihuana under the CDSA. Parker was an epileptic who experienced frequent,severe and potentially life-threatening seizures. He found that the seizures were best controlled by the use of marihuana. He could notlocate a lawful source of marihuana and decided to grow his own.

At his trial, the trial judge found that Parker required marihuana tocontrol his epilepsy and that the prohibition against marihuana infringed his rights under s. 7 of the Canadian Charter of Rights andFreedoms. In order to protect the accused and others like him who needed to use marihuana for medicinal purposes, the trial judge readinto the legislation an exemption for persons possessing or cultivating marihuana for their "personal medically approved use". TheCrown appealed this decision. [15] The Ontario Court of Appeal held that Parker's liberty interest under

section 7 of the Charter was affected by the marihuanaprohibition. It held that to prevent Parker from accessing a treatment by threat of criminal sanction constituted a deprivation of hissecurity of the person and infringed his security by interfering with his physical and psychological integrity.

Section 7 of the Charterprotected his right to make choices concerning his own body and control over his physical and psychological integrity free frominterference by criminal prohibition. [16] The Ontario court did not limit its ruling to Mr. Parker’s individual situation however. It went on to hold that a blanketprohibition on possession was unfair and that the absence of a clear legal standard contributed to a violation of fundamental justice.

Thecourt stated that of all of the drugs with potential therapeutic effects, marihuana stood out because it was subject to a completeprohibition, making it impossible for a physician to prescribe it and for a patient to legally possess it pursuant to a prescription. [17] The court acknowledged that the state has an interest in protecting against the harmful effects of marihuana.

It found that healtheffects to humans include bronchial pulmonary harm; psychomotor impairment from marihuana use leading to a risk of automobileaccidents where there was no simple screening device available for detection; possible precipitation of relapse in persons withschizophrenia; possible negative effects on the immune system; possible long- term cognitive effects in children whose mothers usedmarihuana while pregnant; possible long-term cognitive effects in long-term users; and some evidence that some heavy users maydevelop a dependency.

Despite acknowledging that the state had an interest in addressing these concerns, the court held that a blanketprohibition on possession and cultivation of marihuana, without an exception for medical use, does little or nothing to enhance the stateinterest, if it deprives those persons of the drug who require it to maintain their health. [18] The Ontario Court said that under s. 3 of the Narcotic Control Act and s. 4 of the CDSA, it is an offence to have possession ofany narcotic or scheduled substance respectively, including marihuana, except as authorized by the Act or regulations.

While theregulations theoretically contemplate that a physician could prescribe marijuana, the evidence was that since there was no legal sourcefor marihuana, no pharmacist would fill the prescription and the government would not look favourably upon a physician who wrote sucha prescription. The defence in the Narcotic Control Act and the CDSA was practically unavailable to persons who require marihuana forconditions threatening their life or health. The Ontario Court of Appeal held that this constitutes a violation of the principles offundamental justice.

Parliament has created a defence to the possession and cultivation offences if the person can comply with the

regulations. Those regulations, for example, permitted a person to legally possess the drug under prescription from a physician. But thecourt held that this defence or exemption was illusory and that this is not consistent with the principles of fundamental justice. [19]

Section 56 of the CDSA provides a source for the legal possession of marihuana. That

section provides that the Minister may, onsuch terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance from theapplication of the Act if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise inthe public interest.

Section 56 gives the Minister an absolute discretion based on the Minister's opinion whether an exemption isnecessary for a medical purpose. The Ontario Court considered this section, but found it to be an inadequate legislated standard formedical necessity. It held that the vesting of an unfettered discretion in the Minister did not accord with the principles of fundamentaljustice. [20] The Ontario Court of Appeal upheld the trial judge's decision to stay the charges against Mr.

Parker, but said that his remedy ofreading a medical use exemption into the legislation was inappropriate, holding that it was up to Parliament to take action. Until thatoccurred, the court held that the appropriate remedy was to declare the prohibition on the possession of marihuana in the CDSA to be ofno force or effect. This declaration of invalidity would be in force for one year. The accused, however, could not be deprived of his rightsduring this year. [21] Mr. Woolsey argues that the same result should follow in his case.

Since there were no valid regulations in force at the time ofhis alleged offences which allowed for a medical exemption to the prohibition of marihuana, it should follow that

section 4 of the CDSAwas of no force and effect at the time of his alleged offences, the same as it was for Mr. Parker. The Aftermath of Parker [22] Three years later, in R. v. Hitzig et. al. (2003) (ON CA), 177 C.C.C. (3d) 449, the Ontario Court of Appealrevisited this issue. In Parker, the court held that the criminal prohibition against the possession of marihuana in s. 4 of the CDSA was ofno force or effect, where there was no constitutionally acceptable medical exemption from that prohibition.

The Government of Canadahad responded to the Parker decision with the Marihuana Medical Access Regulations, S.O.R./2001-227 (June 14, 2001) (“MMAR”). Those regulations permitted the possession, and in some cases, the production of marihuana by those who met the medical criteriaestablished in the MMAR.

In Hitzig the Ontario Court of Appeal was considering whether a decision of a lower court was in error inholding that the scheme set out in the MMAR was not a constitutionally acceptable medical exemption to the criminal prohibition againstpossession of marihuana. [23] In Hitzig, the Ontario Court of Appeal noted that it was not deciding anything about the social or recreational use of marihuana.Its concern was for those with the medical need to use marihuana to treat symptoms of serious medical conditions.

The court concludedthat for those people the MMAR as drafted by the Government failed to create a constitutionally acceptable medical exemption. [24] Unlike the court’s earlier decision in Parker however, the court in Hitzig sought to remedy the problem by declaring as invalidonly five specific sections of the MMAR. It did not declare the possession prohibition in s. 4 of the CDSA to be unconstitutional, asrequested by the accused. The court held that such a remedy would be overly broad.

The court held that section 52(1) of the ConstitutionAct required the court to strike down any law that was inconsistent with the Constitution only to the extent of the inconsistency. Thecourt in Hitzig said that “the remedy must be more specifically targeted to the constitutional shortcomings that we have identified in theMMAR” and that this did not require that the prohibition against possession of marihuana be rejected. [25] The Hitzig decision is significant because it is a later decision of the same court that decided Parker, but it is inconsistent withParker.

It is at odds with Parker about what the remedy should be for having unconstitutional regulations. Parker had held that thisrendered the whole scheme of prohibition of possession of marihuana invalid, while Hitzig held that it did not. Hitzig was a later decisionof the same court dealing with the same issue. The principles of stare decisis would suggest that Parker is no longer good law on theissue of an appropriate remedy for defective regulations because of the later decision by the same court in Hitzig. [26] Earlier in 2003, the Alberta Court of Appeal had heard an appeal in the case of R. v.

Krieger 2003 ABCA 85, in which that courtupheld the decision of the trial judge to strike down section 7(1) of the CDSA (which makes it an offence to produce marihuana). But thecourt in Krieger refused to strike down

section 5 of the CDSA which makes it an offence to traffic in marihuana. The trial judge inKrieger had refused to strike down

section 5 (the

section that Mr. Woolsey is charged with). She wrote (at paragraph [54]) “I amsatisfied that s. 5(2) is an important safeguard preventing unregulated distribution of powerful drugs.” [27] The argument raised in these cases has been abbreviated into the acronym “BENO” which stands for “bad exemption, nooffence”. In other words, if there are no valid regulations which permit persons to possess marihuana for valid medical reasons, then noone should be convicted for possessing marihuana. The problem is that BENO is no longer good law in Canada, if it ever was.

TheOntario Court of Appeal’s decision in Parker has been superseded by Hitzig, which held that this remedy was too broad. Hitzig held thatthe court should strike down any law that was inconsistent with the Constitution only to the extent of the inconsistency. The remedy ofstriking down legislation was to be used as a scalpel, not as an axe. [28] While the Alberta court in Krieger did not take the same approach, it applied BENO only to cultivation of marihuana.

But itwould not extend it to strike down trafficking in the substance. [29] A few months after publication of Hitzig, and after Krieger, the Supreme Court of Canada handed down its reasons forjudgement in R. v. Malmo-Levine 2003 SCC 74 , [2003] 3 SCR 571; 2003 SCC 74. This case confirmed that Parliament had theright to legislate on the distribution and possession of marihuana using the criminal law.

The judgment made it clear that there is no free-standing constitutional right to use marihuana for recreational or non-medical purposes, and criminal sanctions may continue to beconstitutionally applied to users, traffickers, and growers operating outside lawfully prescribed exemptions. [30] The law seemed to be settled until 2008 when reasons for judgement were handed down by the Federal Court of Canada inSfetkopoulos v. Attorney General, 2008 FC 33. Once again a portion of the regulations allowing possession of marihuana by those with avalid medical permit was found to be unconstitutional.

The court found fault with the 1:1 producer to consumer ratio contained in

section

41 of the MMPR. The court also found that it was not reasonable for the government to require qualified medical users either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers. [ 31 ] This decision was upheld in the Federal Court of Appeal ( 2008 FCA 328 ) and leave to the Supreme Court of Canada was denied ([2008] S.C.C.A. No. 531). It did not declare the sections of the CDSA concerning possession, cultivation or distribution of marihuana to be unconstitutional or invalid.

In response, the Government of Canada amended the regulations by setting a 1:2 producer to consumer ratio. (One producer could now provide marihuana to a maximum of two patients instead of one). [ 32 ] Two decisions of the British Columbia Supreme Court, decisions which this court is bound to follow, have rejected the BENO argument. In Kubby v. R. 2005 BCCA 640 , the British Columbia Court of Appeal followed Hitzig and held that defects in the regulations did not operate so as to strike down

section 4 of the CDSA . The court found the CDSA to be valid legislation. [ 33 ] In R. v. Beren and Swallow 2009 BCSC 429 , Madam Justice Koenigsberg held that sections 41(b.1) and 54.1 of the MMAR contravened

section 7 of the Charter . She rejected the argument that asked her to declare

section 4 of the CDSA to be invalid and concluded at paragraph [136]: In relation to the charges against Mr. Beren, the Crown, having proved beyond a reasonable doubt that Mr. Beren was producing and trafficking in marihuana for the purpose of supplying a compassion club, which in turn was selling the marihuana to most of its members who did not have ATPs, and thus were not licensed to possess, which parts of the MMAR I have found to be valid, he is guilty on both counts. [ 34 ] One further decision of a British Columbia Superior Court, the BC Supreme Court decision in Poelzer v. R. 2009 BCSC 18 , has also held that the presence of defects in the regulations does not mean that

section 4 of the CDSA is invalid. Justice Cullen wrote at para. [29]: Even accepting for the sake of argument that notwithstanding Kubby , the decision in Sfetkopoulos is correct and

section 41(b.1) of the MMAR is of no force and effect on the basis that it violates the

section 7 Charter rights of those requiring marihuana for medical purposes by unduly limiting access, it does not follow that the section 4(1) prohibition on possession of marihuana is of no force and effect. Allard v. Canada [ 35 ] The law in British Columbia appeared to be relatively settled on this subject for a time, until February 24, 2016, when Justice Phelan of the Federal Court of Canada released reasons for judgement in Allard v. Canada [2016] F.C.R. 303. Once again the court found fault with the MMPR.

The court recognized that under the existing scheme, a person with a valid medical need for marihuana could not cultivate for oneself nor purchase from someone who was not a registered as a licensed producer. If a person could not access a licensed producer, the person had no access to their substance without breaking the law. Justice Phelan held that the MMPR regime infringed Mr. Allard’s Charter rights under

section 7 and that such infringement was not justified. [ 36 ] Allard differed from many of the earlier decisions however, in which the Courts had struck out either certain provisions or certain words in certain provisions, but otherwise left the structure of the regulations in place. In Allard , the attack was on the structure of the new regulation. Justice Phelan held that it would not be feasible or effective simply to strike certain words or provisions. He wrote: [294] The remedy considerations are further complicated by the fact that there is no attack on the underlying legislation.

Striking down the MMPR merely leaves a legislative gap where possession of marihuana continues as a criminal offence. Absent a replacement regulation or exemption, those in need of medical marihuana – and access to a Charter compliant medical marihuana regime is legally required – face potential criminal charges. [295] It would be possible for the Court to suspend the operation of the provisions which make it an offence to possess, use, grow and/or distribute marihuana for those persons holding a medical prescription or medical authorization.

However, this is a blunt instrument which may not be necessary if a Charter compliant regime was put in place or different legislation were passed. [296] The appropriate resolution, following the declaration of invalidity of the MMPR, is to suspend the operation of the declaration of invalidity to permit Canada to enact a new or parallel medical marihuana regime.

As this regime was created by regulation, the legislative process is simpler than the requirement for Parliament to pass a new law. [297] The declaration will be suspended for six (6) months to allow the government to respond to the declaration of invalidity. [ 37 ] On August 24, 2016, the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 (ACMPR) replaced the MMPR. [ 38 ] In Allard , Justice Phelan was clear that he perceived the remedy of striking down the CDSA provisions which made it an offence to possess, grow or distribute marihuana as being too drastic a remedy.

Despite the fact that Allard struck down the entirety of the MMPR, it was clear that it did not strike down any of the sections of the CDSA . Conclusion [ 39 ] Mr. Woolsey’s application to quash the information pursuant to

section 601 of the Criminal Code is founded on the notion that on the alleged offence dates, it was not a valid offence to possess, grow or sell marihuana. In order to make the order he requests, I must be satisfied that he is correct in this proposition. A review of the law on this subject convinces me that this assertion is incorrect, and that no court has held the relevant sections of the CDSA were not in force on the dates of his alleged offences. To the contrary, the law which I am bound to follow is that these sections remained in force. [ 40 ] Mr.

Woolsey argues that the courts in these cases did not go far enough in following the example set in Parker by declaring the possession sections of the CDSA to be unconstitutional and that they lacked the courage of conviction to do the right thing. If that is so,

then I am bound by law to follow their lead. However I respectfully do not believe that the error was made by those courts. Rather it was the court in Parker that was mistaken . I believe that the correct analysis was that made in Hitzig ; that declaring the sections of the CDSA invalid because of a fault in the regulations is too drastic of a remedy. It is, as the old adage goes, “throwing the baby out with the bath water.” The failure of regulations to meet the needs of those who validly require a controlled substance should not result in excusing possession or trafficking by those who don’t. [ 41 ] Mr.

Woolsey’s application to quash the information is based on the proposition that what he was charged with doing was not against the law when he was alleged to have done it. A review of the law on this point satisfies me that it was in fact an offence to traffic in marihuana on the alleged offence dates in this case. Accordingly, the application to quash the information in this case must fail. Dated at the City of Abbotsford, in the Province of British Columbia, this 15 th day of January, 2018. ____________________________________________ (The Honourable Judge K. D. Skilnick)