Tousaw smith factum pdf ott law 5039245 v1

FILE NO. 36059

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA)

BETWEEN: HER MAJESTY THE QUEEN

- and-

OWEN EDWARD SMITH

-and'

SANTE CANNABIS,

APPELLANT (Appellant)

RESPONDENT (Respondent)

CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), CANADIAN CIVIL LIBERTIES ASSOCIATION,

BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, and CANADIAN AIDS SOCIETY, CANADIAN HIV/AIDS LEGAL

NETWORK AND HIV & AIDS LEGAL CLINIC ONTARIO

INTERVENERS

FACTUM OWEN EDWARD SMITH, RESPONDENT

(Pursuant to Rule 42)

Tousaw Law Corporation 4768 Fairbridge Drive Duncan, Be V9L 7N8

Kirk 1. Tousaw John W. Conroy, Q.C. Tel: 604.836-1420 Fax: 866-310-3342 Email: kirktousaw@gmaiLcom

Counsel for the Respondent, Owen Edward Smith

Gowling Lafleur Henderson LLP 2600 - 160 Elgin Street Ottawa ON KIP lC3

Jeffrey W. Beedell Tel: 613.786-0171 Fax: 613.788-3587 Email: [email protected]

Ottawa agent for the Respondent Owen Edward Smith

Public Prosecution Service Canada British Columbia Regional Office 900-840 Howe Street Vancouver, BC V6Z 2S9

W. Paul Riley, Q.C., Kevin Wilson Tel: 604-666-0704 Fax: 604-666-1599 Email: [email protected]

Counsel for the appellant Her Majesty the Queen

Grey Casgrain 1155 Rene-Levesque Ouest, Suite 1715 Montreal, QC H3B 2K8

Julius H. Grey Tel: 514-288-6180 Fax: 514-288-8908 Email: [email protected]

Counsel for the Intervener Sante Cannabis

Ruby Shiller Chan Hasan 11 Prince Arthur Avenue Toronto, ON M5R 1B2

Nader R. Hasen Gerald Chan Tel: 416-964-9664 Fax: 416-864-8305 Email: [email protected]

gcj [email protected]

Counsel for the Intervener Criminal Lawyers' Association (Ontario)

Paliare Roland Rosenberg Rothstein LLP 155 Wellington Street, W. 35th Floor Toronto, ON M5V 3H1

Andre K Lokan Tel: 416-646-4300 Fax: 416-646-4301 Email: [email protected]

Counsel for the Intervener Canada Civil Liberties Association

Brian Saunders, Q.C. Director of Public Prosecutions 160 Elgin Street, 12th Floor Ottawa, ON KIA OH8

Francois Lacasse Tel: 613-957-4770 Fax: 613-941-7865 Email: [email protected]

Ottawa agent for the appellant Her Majesty the Queen

Gowling Lafleur Henderson LLP 2600 - 160 Elgin Street Ottawa ON KIP 1C3

Guy Regimbald Tel: 613.786-0197 Fax: 613.563-9869 Email: [email protected]

Ottawa agent for the Intervener Sante Cannabis


Guy Regimbald Tel= 613.786-0197 Fax: 613.563-9869 Email: [email protected]

Ottawa agent for the Intervener Criminal Lawyers' Association (Ontario)


D. Lynne Watt Tel: 613.786-8695 Fax: 613.563-9869 Email: [email protected]

Ottawa agent for the Intervener Canadian Civil Liberties Association

Gratl & Company 601 - 510 West Hastings Street Vancouver, Be V6B 1L8

Jason B. Gratl Tel: 604'694'1919 Fax: 604'608'1919 Email: [email protected]

Counsel for the Intervener British Columbia Civil Liberties Association

Burstein Bryant Barristers 6 Adelaide Street, E. 5th Floor Toronto, ON M5C 1H6

Paul K. Burstein Ryan Peck Richard Elliott Tel: 416'927-7441 Fax: 416-488-9802 Email: [email protected]


D. Lynne Watt Tel: 613.786-8695 Fax: 613.563-9869 Email: [email protected]

Ottawa agent for the Intervener British Columbia Civil Liberties Association

Supreme Advocacy LLP 100 - 340 Gilmour Street Ottawa, ON K2P OR3

Marie-France Major Tel: 613'695-8855 Fax: 613-695-8580 Email: [email protected]

Ottawa Agents for Canadian AIDS Counsel for the Intervener Canadian AIDS Society, Society et al. Canadian HIV/AIDS Legal Netowrk and HIV & AIDS Legal Clinic Ontario

1

TABLE OF CONTENTS

PART I. O\TERVIEW AND FACTS ........................................................................ 1

Overview ................................................................................................... 1

The Lay Evidence ...................................................................................... 2

The Crown Witness ................................................................................... 8

Respondent's Expert Evidence ................................................................. 9

The Appellant's Expert Evidence ........................................................... 11

Legislative Provisions ............................................................................. 13

Prior Decisions ........................................................................................ 15 A. British Columbia Supreme Court (2012 BCSC 544) .................. 15

B. British Columbia Court of Appeal (2014 BCCA 322) ................. 16

PART II. ISSUES .................................................................................................... 16

PART III. ARGUMENT ........................................... ' ............................................... 16

A. Standing ...................................................................................... 16

B. The Section 7 Violations ............................................................. 18

Liberty and Security of the Person Violations " .................................... 18

The Rights Infringements Violate the Principles of Fundamental Justice .................................................................................................. 24

The Object of the Restriction .................................................................. 24

The Restriction Does Not Accord with the Principles of Fundamental Justice ................................................................................................... 27

The Restriction is Arbitrary .......................... ,,;, .................................... 27

The Restriction is Overbroad ................................................................ 30

The Harms Caused are Grossly Disproportionate to any Benefits ...... 31

The Restriction is Arbitrary, Overbroad and Grossly

11

Disproportionate ................................................ , .................................. 33

The Infringements are Not Justified Under s.l of the Charter ........... 34

PART IV. COSTS ..................................................................................................... 35

PARTV. ORDER SOUGHT ................................................................................... 36

PART VI. TABLE OF AUTHORITIES .................................................................. .41

PART VII. STATUTORY PROVISIONS ................................................................ .42

1

PART!. OVERVIEW AND FACTS

OVERVIEW

1. The possession, distribution and production of cannabis, including all of its

constituent components, is criminally prohibited. The MMARs provide, for those

able to qualify, a limited medical exemption to the prohibition. That limited

exemption applies to patients having the support of a physician and/or specialist

and, in some circumstances, the patient's designated producer.

2. The exemption created by the MMARs applies only to cannabis plants and to

dried marihuana.

3. The therapeutically active compounds in cannabis are found on trichomes;

these are resin glands that grow primarily on the flowers of the female plant. The

plant matter itself is inert and has no medical utility.

4. The trichomes can be removed from the plant matter in various ways. They

can simply be shaken loose from the dried flowers. They can be extracted into

alcohol or into fats such as olive oil or butter by soaking the dried flowers in the fat

or alcohol and then removing the inert plant material.

5. Once extracted, the trichomes can be ingested in various ways. They can be

put into capsules or cooked into foods and ingested orally. Lotions or balms can be

made and applied topically. An alcohol extract can be taken as a tincture or a spray.

6. Orally ingesting the compounds is more effective than smoking dried

marihuana for a variety of conditions and/or symptoms. Oral ingestion provides a

slower onset of action and a longer period of therapeutic activity than inhalation.

Inhalation gives nearly immediate effect but rapidly wears off. Oral ingestion does

not require constant dosing/smoking to maintain therapeutic effect.

2

7. Topical administration provides therapeutic application directly to the site of

pathogenicity but low levels of systemic absorption of the compounds and, as a

result, does not produce any psychoactivity.

8. Smoking is the most harmful mode of ingesting cannabis. Most of the harms

associated with consuming cannabis are a result of smoking, not consumption of the

therapeutically active compounds themselves.

9. A patient qualifying for the MMARs exemption can lawfully produce plants,

harvest them and then possess the dried marihuana, typically in the form of the

flowers (or buds) of the female plants. The patient is not permitted to extract the

trichomes from those flowers in any way. Doing so constitutes production and

possession of cannabis resin and/or the various compounds and is a criminal offence

punishable by severe deprivations of liberty.

10. Effectively, then, the MMARs constrain the ability of the patient to choose

modes of ingesting cannabis other than smoking and vaporizing the dried plant

matter. Thus, patients are forced under threat of criminal sanction into more

harmful and less effective ways of consuming the therapeutically active compounds.

THE LAy EVIDENCE

11. Constable Brewster of the Victoria Police Department testified to his

attendance at 865 View Street, Apartment 204 in the City of Victoria on December

3, 2009 and the exhibits seized from that location. He provided the Court with a

book of photographs depicting the scene (Exhibit 2) and the various products being

produced there including medicinal cookies, topical oils and gel capsules filled with

oil-based cannabis extracts.]

12. Mr. Ted Smith (no relation to Respondent Owen Smith) employed Respondent

to make medicinal cannabis products for the CBCC, an entity that exists to provide

1 Admissions, Appellant's Record ("AR"), Part III, v.l, p.12-13

3

its members, all of whom suffer from a permanent physical disease or disability,

with access to a supply of dried cannabis and cannabis-based products.2

13. Prospective members demonstrate their eligibility for membership primarily

by bringing in confirmation of their condition from their physician.3

14. New members of the organization are given a 45-minute to one-hour

orientation session. They are provided with information about the CBCC's rules,

given a list of the medical cannabis products sold by the organization and advised

that they should refrain from operating heavy machinery or driving while

consuming the medications. Members are told that some strains of cannabis can

increase heart rate and therefore persons with heart issues should pay attention to

that possibility.4 With respect to the orally-ingested products, new members are

advised to begin with very small doses and to gradually, over time, work their way

up to a dose that provides adequate symptom relief without, or with minimal, side

effects (a process known as "self-titration'').5

15. New members of the CBCC are also provided with information about Health

Canada's MlMAR program and are encouraged to attempt to gain access to the legal

protections afforded by the MMAR. Upon request they are given copies of

application forms and the CBCC provides assistance with filling out those forms.6

The CBCC provides this service because a primary purpose of the organization is to

protect vulnerable sick people from the criminallaw.7

2 AR Part III, v.1, pA3, 27-36; p.44, 35·p.45, 18 3 AR Part III, v.1, p.45, 34-p.46, 1-8. In certain instances, membership can be granted to persons demonstrating their permanent physical disease or disability by other means including copies of their medical records or, rarely, a prescription issued to them for the treatment of a recognized qualifying condition (eg, prescription drugs used in the treatment of HIV/AIDS). AR Part III, v.l, p. 146, 29-p.147,4 4 AR Part III, v.1, p.46, 13-43; p.48, 13-24; AR Part III, v.2, p.6, 17-39 5 AR Part III, v.2, p.124, 2-9 6 AR Part III, v.1, p.48, 32-p.49, 3; p.145, 34-p.146, 4 7 AR Part III, v.1, p.145, 16-28

4

16. Ms. Gayle Quin testified to her personal use of medicinal cannabis and

cannabis-based medicines, her personal medical conditions, her lay training in

herbalism and her role in developing cannabis-based medical products for the CBCC

and in dialoguing with its members about their experiences with the products.

17. Ms. Quin suffers from a range of serious medical conditions including chronic

pam ansmg from injuries suffered in an automobile accident as a teenager,

Hepatitis C, chronic fatigue syndrome, fibromyalgia and breast cancer. Her

symptoms include chronic pain, fatigue, nausea, lack of appetite and insomnia. She

provided a number of medical documents supporting her testimony on these points.8

18. Ms. Quin holds an Authorization to Possess Dried Marihuana issued by

Health Canada. She obtained that Authorization in 2011, after being diagnosed with

breast cancer. Her successful application came only after many unsuccessful

attempts, over a period of years, to convince various treating physicians to provide

her with access to the legal protections of the M1\dARprogram.9

19. She has essentially consumed cannabis, and cannabis products, to treat her

conditions and the serious symptoms arising from those conditions since she was a

teenager. She consumes cannabis by inhalation, orally and topically. She produced

her own cannabis for a time and also produced her own cannabis-based oral

medicines by extracting the active ingredients into olive oil (having previously

attempted, unsuccessfully, to simply add dried leaf to batter).lO

20. Ms. Quin is a former long-term care aide, a self-taught herbalist and is

responsible for developing and/or refining many of the CBCC's cannabis-based

medicines.ll She trained Respondent Owen Smith in how to produce the various

products offered by the CBCC. Ms. Quin, along with Mr. Ted Smith, authored the

CBCC's Medicinal Cannabis Recipe Book. She also regularly consults with the

S AR Part IV, v.1, p.148 - 159 9 AR Part III, v.2, p.10S, 21·26 and 37-38 10 AR Part III, v.2, p.125, 17-23 11 AR Part III, v.2, p.96, 25; p.97, 2S; p.99, 34; p.100, 4

5

members of the organization, providing information and advice about the CBCC's

products, proper usage and taking feedback from the members related to the efficacy

of the products for their particular symptoms and conditions.12 One piece of

information she imparts to members planning to consume orally-ingested products

is the need to self-titrate the dosage to avoid accidentally ingesting too much.

21. Ms. Gina Herman is a member of the CBCC. She testified to her personal

medical history. Ms. Herman suffers from chronic pain, anxiety, insomnia and

inflammation_ Her medical issues began in 2001 after suffering a workplace injury.

She provided documents related to her medical condition and treatments.13

22. Ms. Herman tes~ified to her history with prescription pharmaceuticals and

the significant negative side effects she suffered as a result of consuming those

drugs. These side effects included an inability to focus, mental fuzziness, social

withdrawal and an inability to meaningfully participate in her family life. This

caused her significant anxiety and depression as well as damaging her relationship

with her husband and children. In her words, she went from an active wife and

mother who enjoyed a variety of activities (camping, soccer, swimming) with her

husband and children to having life as she and her family knew it stop, causing her

to lose eight years of her life .14

23. Ms. Herman began to consume cannabis and cannabis-based medicines with

the full knowledge and support of her treating physician Dr. Sayad after moving

from Ontario to British Columbia. She was able to significantly reduce her intake of

pharmaceutical painkillers and anti-inflammatory drugs and, as a consequence, to

minimize the serious negative side effects she had been experiencing without

compromising her overall health.

12 AR Part III, v.2, p.98, 44, p.99, 16 13 AR Part IV, v.2, pp. 79 - 96 14 AR Part III, v.3, p.13l, 31-p.132, 35

6

24. She consumes primarily cannabis-based cookies obtained from the CBCC. She

also consumes the "Ryanol" gel capsules and uses the topical products including the

massage oils and the Cannapatch.15 Ms. Herman also consumes cannabis by

inhalation (using a vaporizer) though it is not her preferred mode of ingestion. Ms.

Herman has taken each product she obtains from the CBCC to her treating

physician and has discussed the use of each with him.

25. She has not suffered any negative side effects from any of the products she

obtains from the CBCC.16

26. To the contrary, she testified that the use of the CBCC products has given her

back her life and that she has been able to begin to rebuild the damaged

relationships with her husband and children and to become more active in her daily

life and social activities. 17

27. As a result of seeing the improvement in her life and her reduction in the

intake of pharmaceuticals, Ms. Herman's treating physician completed the MMAR

forms necessary for her to apply for an Authorization to Possess Dried Marihuana in

December 2010, selecting "oral" as the method of ingestion.18

28. Ms. Sandra Large testified to her serious medical conditions, the prescription

drugs she takes and took to deal with those conditions and her use of cannabis and

cannabis products obtained from the CBCC.

29. Ms. Large suffers from bone and joint problems along the entire left side of

her body because of a motorcycle accident she had in 1975. She experiences chronic

pain and is mobility impaired. In addition, she suffers from digestive problems due

to damage to her digestive system from the accident. In 1995 she had a stroke that

caused her nerve damage. She also suffers from migraine headaches, arthritis,

15 AR Part III, v.3, p.139, 19,21 16 AR Part III, v.3, p.140, 23-32 17 AR Part III, v.3, p.140, 12-13; p.141, 1-S 18 AR Part IV, v.2, p.97

7

fibromyalgia, epilepsy and congenital heart failure. Her headaches are severe to the

point of near blindness. Her epilepsy has caused her to have grand mal seizures.

Finally, her heart issues have caused her to have a heart attack.19

30. Ms. Large has been put through the gamut of prescription drugs and, in

particular, narcotic painkillers such as morphine and cortisone, a steroidal anti

inflammatory that she took by injection for a period of time. She also takes a

prescription anti-seizure medication to combat her epileptic symptoms.

31. She testified that as a result of consuming medical cannabis and cannabis

products obtained from the CBCC commencing in 2003, she has reduced her intake

of opiate-based painkillers (to which she had become addicted) and the side effects

associated with those drugs.2o She has also reduced her intake of Carbamazepine, a

prescription anti-seizure drug that caused her unwanted side effects.21

32. She finds cannabis based medicines such as the "Buddha Balls"22 meant for

oral ingestion, the topical massage oils and the Cannapatch to be effective at

reducing her pain, combatting her migraine headaches and reducing the frequency

of her seizures with little or no side effects.23 She credits the ingestion of cannabis in

the form oflozenges with assisting in the non-surgical resolution of a blockage in her

lower intestine.24 Ms. Large has not experienced any significant negative

consequences from her medicinal cannabis use.

33. Ms. Large's physician, Dr. Lenser, is aware of her consumption of cannabis

based medicines but has not been willing to assist her in obtaining access to the

legal protections of the NlMAR scheme.25

19 AR Part III, v.3, pp. 84-89 20 AR Part III, v.3, p. 93, 16-19 21 AR Part III, v.3, p.102, 39-p. 103, 3 22 AR Part III, v.1, p.105, 45-p.106, 11 23 AR Part III, v.3, p.94, 26-44; p. 107, 43-p.108, 1 24 AR Part III, v.3, p.93, 47-p.98, 13 25 AR Part III, v.3, p.99, 38'40

8

34. Ms. Ruth Arthurs testified that she suffers from chronic pain arising from a

serious automobile accident including head trauma. She joined the CBCC and

primarily consumes the Buddha Balls and Ryanol gel capsules, though she also

inhales dried cannabis on occasion. She had not experienced any negative side

effects from the use of the products obtained from the CBCC.26

THE CROWN WITNESS

35. Mr. Eric Ormsby, an employee of Health Canada, was called by the Crown.

His evidence consisted primarily of explaining the process by which traditional drug

products are brought to market in Canada and the government's rationale for that

process. Mr. Ormby was qualified as an expert but offered little opinion evidence.

36. Mr. Ormsby conceded that the pharmaceutical drug approval process IS

typically, though not exclusively, applied to single compound drugs. He admits

further that dried cannabis produced either pursuant to the MMAR or under

contract with Her Majesty was specifically exempted from the Food and Drugs Act

by the government of Canada.27

37. Mr. Ormsby also conceded that the Natural Health Product Regulation,

promulgated pursuant to the Food and Drugs Act, is a comprehensive regulatory

scheme designed to ensure the safety and quality control of natural health products

and to govern their production, marketing and distribution in Canada and that this

scheme would apply to cannabis and cannabis"based medicines if the NHP

Regulation did not specifically exempt from its ambit all substances scheduled in the

CDSA.28

38. Mr. Ormsby agreed that a product obtaining approval for marketing and

distribution in Canada pursuant to the Food and Drugs Act was not a guarantee of

safety. Products that demonstrate safety and efficacy in clinical trials can

26 AR Part III, v.3, p.168, 39-p.169, 8 27 AR Part III, v.5, p.50, 31"41 28 AR Part III, v.5, p.63, 24·p.64, 1

9

sometimes produce very different, and dangerous, effects when released into the

general population and some products obtaining FDA approval have later been

linked to serious side effects up to and including large numbers of deaths.29

39. Finally, Mr. Ormsby acknowledged that both the Food and Drugs Act and the

Natural Health Product Regulation contain offence sections permitting prosecutions

of individuals alleged to be in violation of the legislative scheme.30

RESPONDENTS EXPERT EVIDENCE

40. Dr. David Pate was qualified as an expert in pharmacology and botany. He

submitted an affidavit setting out his opinions and the facts upon which they are

based.31

41. He described the botany of the cannabis plant and explained that the

medicinal compounds are located in resin glands produced on the plant surface.32

The compounds include cannabinoids (THC and CBD being the most prevalent) and

terpenes. 33 The plant matter itself has no medicinal value and consuming it,

particularly by way of smoking, can produce negative health effects ranging from

mild to serious.34

42. Dr. Pate explained the varlOUS methods of extracting the therapeutically

active compounds from the plant matter; this included the method of extracting into

cooking oil use by Mr. Smith.35

43. Dr. Pate also testified to certain principles of pharmacology. In particular, he

opined that direct application of the medicinal compounds to the site of

29 AR Part III, v.5, p.60, 40-46 30 AR Part III, v.5, p.65, 15-19; p.62, 20-40 31 AR Part IV, v.2, p.1 32 AR Part III, v.2, p.144, 28-35; p.145, 31·p.146,46; p.148, 3·p.149, L p.164, 9-12; AR Part III, v.3, p.5, 14-34 33 AR Part III, v.2, p.149, 2-29; p.150, 47-p.152, 17 34 AR Part III, v.2, p152, 22-43; p.162, 21'31; p.l72, 10-p.173, 15; AR Part III, v.3, p.3, 30-p.4, 10; p.39,18·35 35 AR Part III, v.2, p.162, 38·p.163, 10; p.164, 13·p.166, 18; p.168, 25-45

10

pathogenicity was a standard practice, not just with cannabis"based medicines but

with all medicines. This is the case because direct application can, in appropriate

circumstances, provide the therapeutic benefits sought by the patient with less

intake of the substance than necessary for systemic application. The end result is

greater efficacy with reduced levels of unwanted side effects. 36

44. Dr. Pate testifed that cannabis and cannabis-based medicines are quite safe

with no possibility oflethal overdose.37 He underscored the importance of titration of

dose, a principle of pharmacology not exclusive to medicinal cannabis products. 38

Titration is of particular importance when taking medicines orally because that

mode of ingestion requires longer before experiencing the effects. 39

45. Because of the high safety profile of cannabis medicines, however, Dr. Pate

testified that the negative consequences of an overdose - even of orally ingested

cannabis products - were transient and relatively mild. This is in contrast to many

prescription and some over-the-counter pharmaceutical medicines that can and do

cause lethal overdoses.4o

46. Dr. Pate explained that oral ingestion could be preferable because, in addition

to direct application, oral ingestion results in longer systemic loads with a more

stable plateau of the active ingredients. By contrast, smoking results in a rapid

spike in the systemic load - potentially to levels much higher than required for

therapeutic effect - followed by rapid decreases. According to Dr. Pate, inhalation is

preferred for treating acute conditions requiring quick action whereas oral ingestion

would be preferred for chronic conditions particularly where symptom relief over

longer periods of time (eg, while sleeping) is desired. 41

36 AR Part III, v.2, p.170,12-p.171, 5; p.175, 7-15; p.179, 23-38; p.182, 6-23; AR Part III, v.3, pA, 32-45; p.62, 32-35 37 AR Part III, v.2, p.180, 28-p.181, 3; p.188, 33-39; p.189, 24"29 038 AR Part III, v.2, p.160, 31-p.161, 24 39 AR Part III, v.2, p.181, 3-36 40 AR Part III, v.2, p.182, 24-p.183, 37 11 See Pate Affidavit, paras. 30'34; AR Part III, v.2, p.176,47-p.178, 43; AR Part III, v.3, p.4, 11-31

11

THE APPELLANTS EXPERT EVIDENCE

47. Dr. Abramovici, an employee of Health Canada having no pre-employment

experience, either in the academic or laboratory setting, with cannabis or cannabis

based medicines, testified as Appellant's expert.42

48. Dr. Abramovici's sole expertise with cannabis comes as a result of a literature

review conducted at the direction of his employer in connection with his work to

update the government's document "Information for Health Care Professionals"

(Exhibit 40, Tab G).43

49. When asked about input into his expert report by other Health Canada

officials Dr. Abramovici admitted that the entire "Conclusions" section of his sworn

affidavit was actually written by his superior at Health Canada Suzanne Dejardin.44

50. Dr. Abramovici conceded that the dried plant matter itself had no medicinal

value.45 He conceded that smoking the dried cannabis created health risks that did

not exist with oral or topical modes of ingestion.46 He further conceded that the

concept of applying medicine to the site of pathology was a general principle of drug

delivery. 47

51. In terms of the risks of consuming cannabinoids, Dr. Abramovici conceded

that apart from the issue of known dosages and potential risks unrelated to the non

medicinal compounds themselves, the risks of conventional cannabis-based drug

products Sativex and Marinol were similar to the products sold by the CBCC.48 He

conceded that these risks were within the range generally accepted for medicines

42 AR Part III, v.4, p.9, 20-24; p.20, 39-p.21, 7; p.22, 20-34 43 AR Part III, v.4, p.23, 26-p.27, 32; p.33, 44-p.34, 22; p. 36, 6-23 44 AR Part III, v.4, p_39, 15-p.41, 10 45 AR Part III, v.4, p.70, 12-36; p_74, 11-46; p.76, 7-28; p.114, 13-32; p.116, 13-29 46 AR Part III, v.4, p.S1, 19-25; p.93, 35-p.95, 1; p. 110, 24-p.111, 3; 121, 19-p.122, 12; p.174, 45-p.175, 36; p.177, 12-28; AR Part III, v.5, p.17, 18-24 47 AR Part III, vA, p.80, 36-p.81, 3; p.140, 44-p.141, 41 48 AR Part III, v.4, p.8S, 4-40; p. 95, 26-43; AR Part III, v.5, p.16, 43-p.17, 17

12

and that cannabis and cannabis products were as safe or safer than many

prescription drugs and some over-the-counter drugs.49

52. Dr. Abramovici's Information for Health Care Practitioners document sets out

Health Canada's position on certain key points and corroborates the scientific and

medical evidence of Dr. Pate and the patient witnesses:

a. Inhalation by smoking can pose serious risk to health akin to, or greater than, risks associated with smoking tobacco (sections 1.2 and 8.2);

b. CBD has anti-inflammatory, analgesic, antipsycotic, anti-ischemic, anxiolytic, and antiepileptic effects and may have potential therapeutic application for a host of serious conditions (section 2.1);

c. Smoked cannabis results in rapidly absorbed and very variable levels of THC, and smokers often titrate dosage (sections 2.2.1.1, 2.2.3.1 and 3.1);

d. Oral ingestion of THC occurs by ingesting foods containing cannabis such as butters, oils, brownies, cookies, teas or capsules containing THC and topical administration can include compresses, creams and ointments (sections 2.2.1.3 and 3.0);

e. Oral ingestion can have a slower onset of effect but produces longerlasting effect than inhalation (sections 2.2.1.3, 2.2.3.2 and 3.2);

f. Orally administered cannabinoids are well-tolerated and, at least for use of extracts to treat MS like symptoms, clinical trials do not indicate serious adverse effects (section 4.3.1);

g. Topical administration results in some systemic absorption of THC but in quantities significantly lower than either inhaled or orally ingested cannabis (section 2.2.1.6);

h. Cannabinoids are efficacious, or at least demonstrate potential efficacy in laboratory, animal and pre-clinical studies, for a variety of symptoms and conditions (section 4.0).50

49 AR Part III, v.4, p.97, 34-p.99, 6; p145, 25-p.146, 1; p.166, 6-29; p.179, 30-p,lS0, 4; AR Part III, v.5, p.ll, 1l·p.12, 7 50 AR Part IV, v.3, p.66

13

LEGISLATIVE PROVISIONS

53. Section 7 of the Charter guarantees that "[e]veryone has the right to life,

liberty and security of the person and the right not to be deprived thereof except in

accordance with the principles of fundamental justice."51

54. Sections 4, 5 and 7 of the ControJIed Drugs and Substances Act criminally

prohibit the possession, distribution and production of all Schedule II substances

that include cannabis, its preparations, derivatives and similar synthetic

preparations including: cannabis reslll,cannabis (marihuana), tetra

hydrocannabinol (THC), cannabidiol (CDB) and a host of other cannabinoids found

in the plant.52

55. The Marihuana Medical Access Regulations were intended to provide a viable

constitutional exemption from these CnSA prohibitions to ensure a reasonable

continuous supply for medially approved patients.53

56. However, that exemption applied only or was limited to only "dried

marihuana" ("harvested marihuana that has been subjected to any drying process")

and to marihuana plants in the production phase. "Marihuana" in the MMARs

means "the substance referred to as 'cannabis (marihuana)' in subitem 1(2)" of

Sched ule II to the CDSA.54

57. Pursuant to the MMARs:

a. patients able to qualify by virtue of having physician andlor specialist support for their medical use can obtain an Authorization to Possess (ATP) dried marihuana (this is an exemption from s. 4 of the CDSA);

b. patients who also plan to produce marihuana plants to turn into dried marihuana for their own medical use can obtain a Personal-use

51 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 52 Controlled Drugs and Substances Act, SC 1996, c.19, ss. 4, 5, 7 and Schedule II (CDsA) 53 Manhuana Medical Access Regulations, SOR/2001-227, as amended (MMARs) 54 MM4Rs, supra, s. 1(1)

14

Production License (PuPL) (this IS an exemption from s. 7 of -the CDSA);

c. designated producers (persons specifically designated by a patient) can obtain a Designated-Person Production License (DPPL) permitting them to grow marihuana plants and to supply dried marihuana to a maximum of two patients and to charge for their services in doing so (this is an exemption from ss. 5 and 7 of the CDSA).55

58. In order to obtain an ATP (and thus obtain an associated PuPL or DPPL) a

patient's physician had to confirm, in writing:

a. The patient's medical condition and symptoms;

b. The form and route of administration the patient intends to use;

c. That conventional treatments have been tried or considered and found to be ineffective or medically inappropriate;

d. That the medical practitioner is aware that no Notice of Compliance under the FDR has been issued concerning the safety and effectiveness of cannabis;

e. And, for Category 2 conditions, that a specialist has been consulted and concurs that conventional treatments are ineffective or medically inappropriate. 56

59. The MMARs were available to any person ordinarily resident in Canada and

applied to any medical condition, though conditions other than those in Category 1

required additional specialist support. Category 1 conditions were cancer,

HIV/AIDS, multiple sclerosis, spinal cord injury/disease, epilepsy and severe

arthritis. 57

60. The MMARs did not provide any exemption to the general prohibition on

producing, distributing and possessing any Schedule II substance other than plants

and "dried marihuana."

55 MMARs, supra, ss. 2, 24, 34 56 MMARs, supra, s. 6 57 MMARs, supra, Schedule

15

61. The other legislative and regulatory provisions cited by Appellant are not

relevant to the s. 7 analysis and are only relevant to the s. 1 analysis to the extent

that they demonstrate that the government has other less intrusive means at its

disposal than the CDSA criminal law power. In the words of the BCCA majority,

those legislative provisions are "red herrings" as they relate to the s. 7 issues to be

decided in this Court.

PRIOR DECISIONS

BRITISH COLUM:BIA SUPREME COURT (2012 BCSC 544)

62. After a lengthy voir di,re, Mr. Justice Johnston found that the JIiIMAR

restriction to dried marihuana infringed the s. 7 rights of medical cannabis patients

in a manner that neither complied with the principles of fundamental justice nor

was justified pursuant to section 1. He found the restriction arbitrary and, due to

that finding, declined to address other principles of fundamental justice.

63. In the result, by way of remedy he deleted the word "dried" from the MMARs

and read in a definition of "marihuana" that included all Schedule II substances. He

suspended his remedy for one year as it related to persons with DPPLs but declined

to suspend the remedy as it related to persons with ATPs (and corresponding

PuPLs) because he was unwilling to allow patients to have their s. 7 rights violated

by the impugned restriction during the suspension period.

64. Appellant then declined to call evidence at Mr. Smith's trial and Mr. Smith

was acquitted.

65. The Appellant did not respond legislatively within one year, instead seeking a

further suspension. Mr. Justice Johnston declined to extend the suspension.

16

BRITISH COLUMBIA COURT OF APPEAL (2014 BCCA 322)

66. Madam Justice Garson, writing for the 2-1 majority, upheld Mr. Justice

Johnston's decision. The majority found that the impugned restriction did not

comport with s. 7 because it was arbitrary. While disagreeing with some of the

application judge's reasoning, the majority determined that the evidence in the

record was sufficient to demonstrate the arbitrariness of the impugned restriction.

67. The majority disagreed with the remedy imposed below and, instead, declared

the restriction to be invalid, suspending any Order for one year in order to allow

Appellant time to respond legislatively.

PART II. ISSUES

68. The Court stated the following constitutional questions: (1) Do the MMARs

infringe s. 7 of the Charter, insofar as they only allow for access to "dried

marihuana" and (2) if so, is the infringement a reasonable limit prescribed by law as

can be demonstrably justified in a free and democratic society under s. 1 of the

Charter?

PART III. ARGUMENT

A. STANDING

69. Mr. Smith has standing to challenge the CDSA as modified by the M1kL4Rs on

two grounds. First, he may challenge the law based upon his right not to be

convicted pursuant to an unconstitutional legislative scheme. 58

70. Second, the issue before the Court is serious and justiciable and permitting

Mr. Smith to advance the arguments he makes is a reasonable and effective means

of putting those arguments before the courts, particularly as the matter has now

58 R v. Big M Drug Mart, [1985] 1 S.C.R. 295; Canadian Egg Marketing Agency v. Richardson [1998] 3 S.C.R. 157; R v. Morgentaler, [1988] 1 S.C.R. 30.

17

. reached this Court for decision. He therefore meets the test for public interest

standing. 59

71. Appellant urges this Court to deny Mr. Smith standing because he made no

effort to comply with the MlIJARs.

72. This ignores that he could not comply with the MlIJARs because the MlVlARs

did not allow for the production and distribution of anything other than "dried

marihuana."

73. Appellant also suggests that: "quite apart from the restriction in the MlVlAR

regime to dried marihuana alone, Mr. Smith would never have been in a position to

legally produce and distribute the substance."GO

7 4. This is legally incorrect. Had the MMARs permitted other cannabis

medicines, Mr. Smith could have obtained a DPPL allowing him to legally produce

and distribute those medicines to two patients.

75. Mr. Smith was not charged with an MMAR violation. He was charged with

violating the CDSA. His pre-trial application challenged the CDSA provision under

which he was charged. His liberty was at stake and he had standing to make his

arguments.

76. Appellant's standing argument invites this Court to revisit and

fundamentally alter two basic tenets of Charter jurisprudence: if a law is invalid as

to anyone person, it is invalid as to all persons and no person should be convicted of

violating an unconstitutionallaw.61

77. This Court should decline that invitation.

59 Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R 524 60 Factum ofthe Appellant, para.76 61 Big M Drug Mart, supra, 313; see also R v. Nguyen, [1990] 2 S.C.R. 906 at 945 (dissenting on the merits)

18

B. THE SECTION 7 VIOLATIONS

78. In order to demonstrate a violation of s. 7 at his voir dire, Mr. Smith showed

that the law deprived medical cannabis patients of their liberty and security of the

person. Once he established that s. 7 was engaged, he then showed that the

deprivations in question were not in accordance with the principles of fundamental

justice.

79. Appellant argues that a s. 7 inquiry is inapt because the Charter does not

confer a right to obtain or produce drugs based upon a sUbjective belief in their

therapeutic value, irrespective of medical need or lawfully available alternative

trea tments.

80. Perhaps not. But that is not what this case is about.

81. The facts found below, and unchallenged on this appeal, are that the

medicinal compounds that provide therapeutic benefit are the cannabinoids, not the

dried plant matter. At issue in this case is the criminalization of patient choice of

the modes of ingesting those compounds.

82. The criminal prohibition on non-dI'ied forms of medicinal cannabis infringes

the rights to liberty and security of the person of medical cannabis patients in a

manner that is not in accordance with the principles of fundamental justice and

therefore violates s. 7.

LIBERTY AND SECURITY OF THE PERSON VIOLATIONS

83. This court recently explained that while liberty and security of the person are

distinct interests, both rest on a foundation of protecting individual autonomy and

dignity:

Underlying both of these rights is a concern for the protection of individual autonomy and dignity. Liberty protects "the right to make fundamental personal choices free from state interference": Blencoe v. British Columbia

19

(Human Rights Commission), [2000] 2 S.C.R. 307, at para. 54. Security of the person encompasses "a notion of personal autonomy involving ... control over one's bodily integrity free from state interference" (Rodriguez, at pp. 587-88 per Sopinka J., referring to R. v. Morgen taler, [1988] 1 S.C.R. 30) and it is engaged by state interference with an individual's physical or psychological integrity, including any state action that causes physical or serious psychological suffering (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 58; Blencoe, at paras. 55-57; Chaoulli, at para. 43, per Deschamps J.; para. 119, per McLachlin C.J. and Major J.; and paras. 191 and 200, per Binnie and LeBel JJ.). While liberty and security of the person are distinct interests, for the purpose of this appeal they may be considered together.62

84. In addition to protecting autonomy and individual dignity, the liberty interest

protects against deprivation of freedom by the threat of criminal prosecution and

incarcera tio n.

85. Patient autonomy in medical decision-making is a central tenet of both s. 7

and the common law right to informed consent, as this Court recently explained:

The law has long protected patient autonomy in medical decision-making. In A. C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this point), endorsed the "tenacious relevance in our legal system of the principle that competent individuals are - and should be - free to make decisions about their bodily integrity" (para. 39). This right to "decide one's own fate" entitles adults to direct the course of their own medical care (para. 40): it is this principle that underlies the concept of "informed consent" and is protected by s. 7's guarantee of liberty and security of the person (para. 100; see also R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.». As noted in Fleming v. Reid (1991), 4 O.R. (3d) 74 (C.A.), the right of medical self-determination is not vitiated by the fact that serious risks or consequences, including death, may flow from the patient's decision. It is this same principle that is at work in the cases dealing with the right to refuse consent to medical treatment, or to demand that treatment be withdrawn or discontinued: see, e.g., Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.); and Nancy B. v. H6tel-Dieu de Quebec (1992), 86 D.L.R. (4th) 385 (Que. Sup. Ct.).63

62 Carter v. Canada (Attorney General), 2015 sec 5 at para.64 63 Carter, supra, para.67 (emphasis added)

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86. In Carter, this Court determined that protecting choice in individual

responses to grievous and irremediable medical conditions is critical to individual

dignity.64 The law, post-Carter, allows persons to "request palliative sedation, refuse

artificial nutrition and hydration, or request the removal of life-sustaining medical

equipment" and to engage in physician-assisted dying even where other treatments

may be available. Section 7, thus, confers very broad decision-making authority on

patients.

87. Mr. Smith submits that the CDSA as applied to persons consuming cannabis

for medical purposes is a serious intrusion into those patients' liberty and security of

the person. The MJl.JARs provide an exemption scheme. But the MMARs, too, are an

intrusion into the patients' autonomy and are an infringement on s. 7 rights.65

88. If able to comply with the M1l1ARs, the law allows persons to consume the

medicinal compounds found in cannabis (by smoking or vaporizing the dried flowers)

but denies them, under threat of severe criminal sanction, the choice of more

effective and less harmful methods of ingesting it even where a physician has

recommended such modes of ingestion. In this way, the restriction "interferes with

their ability to make decisions concerning their bodily integrity and medical care

and thus trenches on liberty."66

89. Put another way, and echoing this Court's language, security of the person is

engaged because patients are denied more effective and safer modes of ingestion for

a condition that is clinically significant to their current and future health. 67

64 This Court also made clear that patients would not be forced to first undertake treatments that the patient found unacceptable: "'Irremediable', it should be added, does not require the patient to undertake treatments that are not acceptable to the individual." Carter (supra) para 127 65 Mr. Smith agrees with and incorporates the analysis of the Ontario Court of Appeal in Hitzig v. Canada, (2003) 177 CCC (3d) 449, at paragraphs 80 - 105 concluding that the MMARs are themselves a limitation on a s.7 that must, to be valid, comply with the principles of fundamental justice. 66 Carter, supra, para. 66. 67 Chaou}Jj v. Quebec, [2005] 1 S.C.R. 791, per McLachlin C.J.C. at paras. 116, 117, 121, 123; see also Appellant's Factum at para.83

21

90. Worth underscoring is that this right to autonomy in medical decision-making

extends even to choices that could - or are intended to - result in the patient's death

despite that s. 7 also protects the right to life.

91. The common thread running through this Court's jurisprudence is that

patients' choices are to be respected. In the specific context of cannabis, this Court

has suggested that consumption of cannabis for medical purposes would impact the

security of the person right because prohibiting medical consumers could be

considered serious state-induced psychological stress.68

92. Against this backdrop, Appellant argues that the patient witnesses' choices

"at their highest" should not be respected and s. 7 inquiry not triggered because:

III This Court's jurisprudence has only protected autonomy in medical decision-making from restrictions that impede access to lawful treatments;

III Medical autonomy only protects choices that are "reasonably necessary" for "serious or life-threatening conditions";

III The patients' choices are based solely on subjective preferences.

93. The record evidence and facts found below do not support Appellant, nor does

the jurisprudence. This Court should reject Appellant's attempt to insulate the

restriction from s. 7 challenge.

94. This Court's jurisprudence has long recognized the centrality of autonomy in

medical decision making to our free and democratic society. Faced with this long

jurisprudential history of protecting patient choice - even unto death - Appellant

attempts to artificially limit the jurisprudence to cases involving only laws that

restrict "approved" health care services.69

68 R v. Malmo-Levin6' R v. Caine, [2003] 3 S.C.R. 571 at para.88 69 Appellant's Factum para.84

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95. Appellant's characterization must fail in light of this Court's decision in

Carter. Physician-assisted dying was not an "approved health care service" that the

Criminal Code prevented access to. Quite the opposite.

96. Ms. Quin and Ms. Herman had been approved to use cannabis as medicine by

virtue of having ATPs. Ms. Herman's physician recommended oral ingestion. For

them, and others similarly situated, cannabis is an approved medicine. It is their

choice of how to ingest that medicine that is criminally prohibited.

97. Appellant also seeks to limit the scope of s. 7 protection by arguing that only

restrictions on medical treatments that are "reasonably necessary" to treat "serious

or life-threatening medical condition[s]" can ever engage liberty and security of the

person.70

98. Even if this Court accepts the Appellant's characterization on the evidence

that the burden is met. The patient witnesses all suffered from serious and/or life

threatening medical conditions. For at least Ms. Quin and Ms. Herman, their

doctors agreed that cannabis (and in Ms. Herman's case, cannabis consumed orally)

was necessary to treat those conditions because other conventional treatments had

been tried or considered and found to be ineffective or medically inappropriate.

99. Choosing a mode of ingesting cannabis that is (a) more effective; (b) has

potentially less unwanted side effects; and (c) is less harmful than smoking dried

marihuana is reasonable.

100. In urging this Court to dramatically circumscribe autonomy, Appellant also

argues that there was no "medical evidence" that the witnesses were unable to treat

their serious health conditions with pharmaceutical drugs. Along these lines,

Appellant suggests that any rights claimant would need objective evidence from a

qualified and informed medical practitioner in order to trigger as. 7 inquiry.

70 Appellant's Factum, para.91.

23

101. The Courts below, however, found as fact that the objective evidence from Dr.

Pate and Dr. Abramovici supported the increased medical efficacy and decreased

risk profile of ingested versus smoked cannabis. Ms. Herman and Ms. Quin had

doctors that declared that conventional treatments were "ineffective or medically

inappropriate". And Ms. Herman had physician support and is therefore medically

approved for an oral mode of ingestion. Appellant's argument fails on the facts.

102. Appellant also says that there was no medical evidence that dried marihuana

was "any less effective" than other cannabis medicines, suggesting that the patients

merely have a preference for an unlawful treatment over a lawful one.71

103. Dr. Pate, Dr. Abramovic and Health Canada's publication all confirm that for

certain conditions oral ingestion is more effective than smoking. The patients

confirmed this with their own experiences.

104. Moreover all experts agreed that smoking was a more harmful mode of

ingesting.72

105. Finally, one can hypothesize many situations in which smoking dried

marihuana is less effective than ingesting it in other ways.

• Smoking cannabis resin (made of trichomes that have been removed from the inert plant matter) delivers greater doses with less smoking. This is more effective and less harmful.

• Persons with asthma, or suffering from lung cancer or other respiratory conditions, may have smoking andlor vaporization contraindicated but would benefit from ingesting cannabis orally or topically.

• Persons working as bus drivers, construction workers, pilots and a host of other professions may benefit from cannabinoid medicine applied

71 Appellant's Factum, paras.92, 93. Appellant's myopic focus on the concept of preferring one treatment over another ignores the basic scientific fact: the cannabinoids are the treatment. The mode of ingestion is the way the patient uses the treatment. That mode of ingestion could (without the restriction) make the treatment more effective and less harmful or (with the restriction) less effective and more harmful to the patient. 72 This Court in Malmo-Levine noted the application judge's finding that even for chronic non-medical consumers the health risks associated with cannabis "arise primarily from the act of smoking rather than from the active ingredients in marihuana." Malmo-Levine) para.255.

24

topically while not experlencmg the unwanted side effect of psycho activity.

• Persons with chronic conditions that either do not want to, or are unable to, constantly ingest cannabis by smoking/vaporization but are able to ingest it orally for longer-lasting effect.

THE RIGHTS INFRINGEMENTS VIOLATE THE PRINCIPLES OF FUNDAMENTAL JUSTICE

106. The infringements of the liberty and security of the person rights are not in

accordance with the principles of fundamental justice

107. Three central principles are identified as fundamental m recent s. 7

jurisprudence: arbitrariness, overbreadth and gross disproportionality in effects. 73

108. All three can be seen as what Professor Hamish Stewart has described as

"failures of instrumental rationality" in the sense that the means chosen by

Appellant to achieve its objectives are intrinsically mismatched with that

objective.74

109. The first step in the fundamental justice analysis is to identify the object of

the impugned restriction.

THE OBJECT OF THE RESTRICTION

110. Mr. Smith submits the object of the restriction must be defined precisely and

go no further than the restriction at issue. He submits that the objective is the

protection of the health and safety of patients lawfully possessing and producing

cannabis for medicinal purposes. This objective is broader than that found by the

application judge and in line with that found by the court of appeal majority.

Ill. The application judge determined that purpose of the impugned restriction

Cbased on Appellant's submissions) was protecting health and safety in the sense of

73 Carter, supra, para.72 74 Stewart, Hamish. Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law 2012.

25

preventing diversion to the black market and controlling false or misleading claims

of medical benefit.75

112. On appeal, Appellant argued that the purpose was "to protect Canadians from

the health and safety risks associated with the possession, production and

distribution of unauthorized drugs."76

113. The court of appeal majority agreed that the application judge articulated the

purpose too narrowly and re-stated the objective as seeking "to provide a medical

exemption for marijuana while pursuing the objective of protecting public health

and safety."77

114. Before this Court, Appellant submits that the legislative objective is

"protection of health and safety by means of a comprehensive legislative

framework." It is submitted that Appellant conflates the means with the objective. It

repeats this error by suggesting that the objective is "protecting public health and

safety by maintaining state control over drugs." The maintenance of state control

over drugs by way ofa legislative framework is the means, not the objective.78

115. This Court has cautioned that stating an objective too broadly may "short

circuit the analysis" and effectively "immunize the law from challenge under the

Charter." Stating the objective as broadly as Appellant urges by incorporating the

means into the objective itself would create this very ill, making it "difficult to say

75 AR Part 1, v.I p. 2S para. 114 76 AR Part 1, v.I p. 73 para.llS 77 AR Part 1, v.I p. 74 para.llS 78 Appellant's Factum, para.104. Paras. 104 - 107 are very troublesome in that the Appellant seems to be suggesting that Parker was wrongly decided and that the government could simply return to an absolute prohibition with no medical exemption. If this is the position, Appellant should say so plainly.

26

that the means used to further it are overbroad or grossly disproportionate" and

creating a situation where the "outcome is to this extent foreordained."79

116. The objective must, therefore, be "defined precisely" and should not go beyond

the "ambit of the provision itself." Recently, this Court has rejected Canada's

attempts to state overbroad objectives in Carter (prohibition on physician-assisted

death suggested as preserving life whatever the circumstances).8o

117. This Court should similarly reject Appellant's attempt to frame the objective

based on the "comprehensive regulatory scheme" rather than the specific restriction

at issue.

118. The objective of the impugned restriction is not to prevent access. The

MMARs are designed to provide - not prevent - access to the therapeutic

compounds found on cannabis. Two of the four patient witnesses had been granted

permission by Appellant to access those compounds and another had approval

pending. These patients and many similarly situation across Canada who

participated in the MMARprogram - already have lawful access.

119. The impugned restriction compels these persons, under threat of criminal

sanction, to ingest those compounds in unnecessarily restrictive, less effective and

more harmful ways. It constrains their choices, not their access.

120. The objective of the infringing measure is therefore not properly understood

as the protection of public health and safety by means of a comprehensive scheme,

nor protection of health and safety generally but, rather, to protect the health and

safety of persons already lawfully producing, possessing and consuming cannabis for

medicinal purposes.

79 Carter, supra, para.77 citing RJR-MacDonaid Inc. v. Canada (Attorney General), [1995J 3 S.C.R. 199 at para.144. RJR-MacDonald is an apt comparison because there the impugned measures were "but one facet of a complex legislative and policy scheme to protect Canadians from the health risks of tobacco use." 80 Carter, supra, para.78.

27

121. Under either a broad or specific statement of the objective, however, the

evidence demonstrates that the restriction fails to comply with the principles of

fundamental justice because it is arbitrary, overbroad and produces effects that are

grossly disproportionate to the objective.

THE RESTRICTION DOES NOT ACCORD WITH PRINCIPLES OF FUNDAMENTAL JUSTICE

122. All three central principles of fundamental justice are infringed by the

impugned restriction. All three should be considered distinct principles subject to

distinct analytical processes.

123. Appellant argues that a regulatory scheme that only permits access to

controlled substances that can be shown to be safe and therapeutically effective is

not arbitrary, grossly disproportionate, or otherwise inconsistent with the principles

of fundamental justice.

124. But that is not what this case is about. The regulatory scheme already

permitted access to the controlled substance and the evidence demonstrated both

the safety and effectiveness of non-dried-marihuana forms of medicinal cannabis.

This case is about whether the trammeling of patient's rights to liberty and security

of the person is arbitrary, overbroad and produces grossly disproportionate effects.

Mr. Smith submits that it is.

THE RESTRICTION IS ARBITRARY

125. A law is arbitrary when there is no rational connection between the effect and

the object of the law.81

126. One method of demonstrating this lack of connection is to show that the law's

effects are inconsistent with the law's objective.82

81 Carter, supra, para.83 82 See,e.g., Morgen taler, supra, ChaoulH, supra, Canada <Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134

28

127. The evidence at trial was that forcing patients to smoke their medicine

creates harm to health. Additionally, preventing patients from ingesting

cannabinoids orally, topically or in concentrated forms harms their health by

denying them a more effective method of dealing with their symptoms and

conditions. Making criminals out of patients harms their health. In this way, the

actual effects of the law undermine and run contrary to its objective and are grossly

disproportionate in their effects.83

128. Recent decisions of this Court make clear that restrictions that cause harm to

health and safety when they are designed to prevent harm to health and safety are

arbitrary.

129. In Chaoulli, Quebec argued that allowing private health insurance would

threaten the objective of providing a public health care system. But the evidence

demonstrated that concern was unfounded, and that denying patients the choice of

private care harmed their health. Therefore the evidence demonstrated no "real

connection in fact" between the restriction and the objective, making it arbitrary.84

130. In PHS, the Minister's decision not to extend the CnSA exemption granted to

inSite was arbitrary because the evidence demonstrated that granting the

exemption furthered the CnSA goals of protecting health and safety while failing to

grant the exemption actually caused harm.85

131. As in Chaoulli and PHS, the evidence m the record in the case at bar

demonstrates that the restriction causes harm, rather than preventing it. Put

another way, there is no "real connection in fact" between the restriction and the

objective and, therefore, it is arbitrary.

88 This is the case whether the objective is specific, as Mr. Smith urges, or the broader objective urged by Appellant. 84 Chaoulli, supra, para.139. 85 PH~ supra, para.131

29

132. Appellant is wrong to suggest the courts below reversed the burden on

arbitrariness. The conclusions reached regarding the lack of Crown evidence on

diversion and safety risk were made in light of the Court's conclusions that different

modes of ingestion are more effective and safer than smoking. Appellant's attempt

to bolster. the record in this Court by implicitly challe nging the factual findings in its

argument about the burden should both be seen for what it is and rejected on the

record evidence.

133. Appellant is also wrong to argue that the therapeutic benefits of cannabis

have not been verified by scientific means. Health Canada's documents demonstrate

the therapeutic value of cannabis and cannabinoids generally, and the different

modes of ingestion specifically. Appellant's witness Dr. Abramovici agreed; he

authored the document. Dr. Pate also gave expert scientific evidence that was

accepted by the application judge.

134. The application judge found that forcing persons to smoke dried cannabis

caused or had the potential to cause harm to health. He further found that the

evidence before him established no relationship between the impugned restriction

and protecting the public. The court of appeal majority agreed.

135. The record evidence demonstrated that the JldMARs restriction to "dried

marihuana" only actually contributes to harm, rather than reducing it, and that

coupled with the CnSA it negatively impacts the health and safety of medical

cannabis patients.

136. The courts below properly found this to be arbitrary.

30

THE RESTRICTION IS OVERBROAD

137. The application judge and court of appeal majority declined to address

overbreadth because of the finding that the restriction was arbitrary.

138. If the impugned restriction is not arbitrary, however, because of some

minimal connection between the law's effects and objectives, it is overbroad because

in the case of any particular individual patient the restriction causes harm rather

than preventing it. It goes too far.

139. This Court recently confirmed that the focus of the overbreadth analysis is

individual:

The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object: Bedford, at paras. 101 and 112-13. Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population. A law that is drawn broadly to target conduct that bears no relation to its purpose "in order to make enforcement more practical" may therefore be overbroad (see Bedford, at para. 113). The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature. The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammeled.86

140. This understanding of overbreadth confirms that Appellant's justifications for

the restriction related to enforcement practicality (eg, dosages, prevention of

diversion) actually support a finding of overbreadth.

141. In the case at bar, as in Carter, Appellant essentially conceded at trial that

the impugned restriction applies to persons whose conduct did not implicate the

objectives of protecting health and safety.

86 Cartel"; supra, para.S5

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142. None of the patient witnesses were challenged on the issue of diversion and

there was no evidence that any had suffered any harm to health as a result of the

cannabis-based medicines they consumed.

143. Appellant resorts to defending the restriction as necessary to "reinforce the

principle" that medicines need to meet the FDR requirements. The reinforcement of

a principle is insufficient justification to trammel s. 7 rights.

144. Considered against the goal of protecting health, the restriction is overbroad

in at least four senses:

• First, by reqUlnng ingestion of cannabinoids by smoking, a more harmful method.

• Second by preventing patients from choosing modes of ingestion that are more effective for their individual symptoms.

• Third, by requiring patients to experience the potentially unwanted side effect of psychoactivity.

• Fourth, by exposing patients to the criminal justice system and all of the attendant harms, psychological stress and deprivations of liberty that flow from that exposure.

145. Considered against the broad goal of protecting public safety, the restriction

is overbroad in that protecting public safety is not achieved by making Ms. Herman

a criminal for making cannabis tea in her home.

THE HARMS CAUSED ARE GROSSLY DISPROPORTIONATE TO ANY BENEFITS

146. The restriction produces grossly disproportionate consequences on those that

the restriction is purportedly designed to protect.

147. Laws that cause effects that are grossly disproportionate to the objectives

violate the principles of fundamental justice.

148. Mr. Smith urges, as Professor Stewart suggests, that the norm against gross

disproportionality be understood as a norm against disproportionality per se; a law

offends the norm when it is:

32

"neither arbitrary (because it has some effectiveness in achieving its objective) nor overbroad (because it affects the protected interests no more than necessary to achieve the objective), but where its impact on the protected interests is too severe to justify whatever beneficial effects it might have."87

149. Mr. Smith submits that the state does not have a . legitimate interest in

prohibiting otherwise-lawful medicinal cannabis patients from choosing modes of

ingestion other than consuming the dried flowers.

150. Even if that interest is legitimate, the criminalization of the choice and

conduct is a far too extreme response. Echoing the dissent in Malmo-Levine, the

harms of using the criminal law to punish the use of cannabis-derived medicines by

medical patients far outweighs any benefits that prohibition can bring.88

151. Similarly, in PHS, this Court found that denying the exemption to inSite

ca used grossly disproportionate effects on persons suffering the medical condition of

addiction; effects that outweighed the general interest in maintaining prohibition.89

152. This Court in Bedford made clear that gross disproportionality does not

consider the purported social benefits of the restriction and reinforced in Carter that

public good was a topic for s. 1, not s. 7. Therefore, Appellant's claims about dosages,

preventing diversion, preventing misleading claims of benefit and reinforcing a

principle are matters for the s. 1 analysis.90 - 91

153. Instead, in this aspect of s. 7, the Court is concerned with the negative effect

on the individual balanced against the purpose of the restriction. A grossly

disproportionate effect on Ms. Herman, alone, is sufficient to violate this norm.92

154. Here, the purpose of the law is to protect the health and safety of medical

cannabis consumers. The negative effect of the law on Ms. Herman is the imposition

87 Fundamental Justicep.147 88 Malmo-Levine at para.301, per Deschamps J., at para.280, per LeBel J. 89 PHS, supra, at para.136. 90 Bedford, supra, para.121 91 Carter, supra, at para.95 92 Bedford, supra, paras.121, 122.

33

of criminality; the attendant negatives that flow from criminalizing; the stripping

away of autonomy and choice in medical decision-making; the forced ingestion of

cannabis medicine by smoking or vaporization with the attendant harms; and the

removal of the benefits of oral and topical modes of ingestion.

155. Mr. Smith submits that the restriction's negative impact on liberty and

security of the person is very high; the law imposes unnecessary suffering on some

patients, deprives them of self-determination in respect of what to do with their own

bodies and confines their choice in how to ingest cannabis to options that are more

harmful, less effective and often impractical or impossible. Against this is an

objective that, in the context of this case, is of minimal importance - the protection

of patients from the exceedingly minimal risks posed by their choice of consuming

edible or topical cannabis'based medicines.

THE RESTRICTION IS ARBITRARY, OVERBROAD AND GROSSLY DISPROPORTIONATE

156. In order for Appellant's arguments to succeed, it .must convince this Court to

turn its focus away from the patient whose rights are infringed and, instead, focus

on purported benefits to the public. This Court, in Bedford, confirmed that is the

wrong approach:

All three principles arbitrariness, overbreadth, and gross disproportionality - compare the rights infringement caused by the law with the objective of the law, not with the law's effectiveness. That is, they do not look to how well the law achieves its object, 'or to how much of the population the law benefits. They do not consider ancillary benefits to the general population. Furthermore, none of the principles measure the percentage of the population that is negatively impacted. The analysis is qualitative, not quantitative. The question under s. 7 is whether anyone's life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7. 93

157. When the focus of the fundamental justice inquiry is where it should be - on

the rights infringement of the individual- the restriction violates all three norms.

93 Bedford, supra, para. 123

34

158. It is arbitrary because its effects actually run contrary to the objective. Being

denied access to cannabis tea under threat of criminalization harms Ms. Herman's

health.

159. It is overbroad because in seeking to capture the behavior of some it goes too

far and trammels the rights of others. Ms. Herman is in no danger from her

cannabis tea and is not selling pots of it on the black market.

160. It is grossly disproportionate because the negative effects of trammeling of

the Ms. Herman's rights to liberty and security of the person far outweigh any

legitimate interest Appellant may have in protecting her from her potentially

harmful choices.

THE INFRINGMENTS ARE NOT JUSTIFIED UNDER S. 1 OF THE CHARTER

161. In order to justify the rights infringement, Appellant must show that the

law's objective is pressing and substantial. If so, Appellant must also show that the

means chosen are proportional to the objective. A law is proportionate:

... if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, [1986] 1 S.C.R. 103.94

162. Section 7 violations are difficult to justify because s. 7 rights are fundamental

and laws that are arbitrary, overbroad and produce grossly disproportionate effects

are "inherently flawed."95

163. This is not a Carter type case where the competing social interest (there

preserving life) is itself a protected Charter right. On the evidence in the record,

Appellant cannot meet the s. 1 burden.

94 Carter, supra, para.94 95 Carter, supra, para.95; Bedford, supra, para.96

35

164. Preventing patients from ingesting oral and topical forms of cannabis, or

concentrated forms of cannabinoids, is not pressing because of the minimal harm

posed by ingesting cannabinoids for medical purposes.

165. Interposing the criminal law between a patient and a reasonable choice of

medical treatment is disproportionate to the objective of protecting health and

safety.

166. The evidence was that the restriction caused harm. Appellant adduced no

evidence that the restriction prevented any harm. Nor did Appellant adduce

evidence that removing the restriction would have any appreciable effect on health

and safety. The application judge commented on this dearth of evidence.

167. The minimal impairment branch of the inquiry asks whether the restriction is

reasonably tailored to the objective. Here, again, the lack of evidence supporting

Appellant is telling. It failed to demonstrate at trial that the criminal prohibition

was the least drastic means to achieve its objectives.

168. Indeed, this is where the existence of alternative regulatory systems available

to the Appellant is most relevant. Cannabis would be in the NHPR and subject to its

comprehensive regulatory system but for Appellant's legislative choices.

169. Additionally, the FDR is already applicable to entities making misleading

claims of medical benefit. That the government has regulations it chooses not to use

to address a problem is scarce justification for criminalizing patients who simply

want to consume their medicine in alternate ways.

PART IV. COSTS

170. Mr. Smith does not seek a cost award.

36

PARTV. ORDER SOUGHT

171. The choice of an appropriate remedy is difficult in the circumstances. The

unlawful restriction was contained in a regulatory scheme that no longer exists.

Appellant's legislative response replacing that scheme contains the same unlawful

restriction. Moreover, Appellant has shown, over the past 15 years, little desire to

conform its medical cannabis regime to the dictates of the Charter and the

multitude of decisions finding that its overly"restrictive scheme violates s. 7.

172. A purposive approach to remedies in the context of the Charter requires that

both the purpose of the right being protected and the purpose of the remedies

provision be promoted. To do so, courts must issue effective, responsive remedies

that guarantee full and meaningful protection of Charterrights and freedoms.96

173. Mr. Smith submits that the one remedy that will ensure that s. 7 rights are

no longer trammeled in this area is reading in a medical exemption to the general

prohibition on the production, distribution and possession of Schedule II substances.

This remedy would have the beneficial effect of (a) immediately ending the s. 7

violations that Appellant appears unwilling to remedy; (b) providing judicial clarity

to all Canadians, and the lower courts, on this important issue; and (c) putting a

halt to 15 years of Charter litigation in this area.

174. The issue of remedy must be informed by an understanding of the history of

this Issue in the courts and Appellant's response to various declarations of

invalidity.

CANADA'S MEDICAL MARIHUANA POLICIES - A LITANY OF LITIGATION

175. On July 31, 2000, the Ontario Court of Appeal confirmed the existence of a

constitutional right to consume cannabis as medicine. The government chose not to

appeal this decision and the Parker case became the seminal case on the

9G Doucet"Boudreau v. Nova Scotia (Minister of Education), [2003] 3 SCR 3 at para.25

37

constitutional requirement that the government provide a means by which medical

cannabis users can be exempted from the operation of the criminal law.

176. The Parker court found that the choice of medication to alleviate effects of

serious illness is a decision of fundamental personal importance and intruding into

that decision "making by way of threat of criminal sanction is a severe deprivation of

liberty.

177. The Parker court also determined that the use of the criminal law power to

prevent use of marijuana for medical purposes violated the security of the person

interest by interfering with Mr. Parker's physical and psychological integrity.97

178. In July, 2001, twelve months less a day after the Ontario Court of Appeal

decision in Parker the government promulgated the MMARs.98

179. Shortly after the MMARs were promulgated, the regulations became the

subject of litigation launched by a group of medical cannabis consumers. The

MMARswere found to be constitutionally defective in Hitzig v. Canada because they

"fail[ed] to provide individuals who have a serious medical need to use marijuana

with a legal source and safe supply of their medicine."99

180. Health Canada announced an interim policy under which authorized

Canadians could purchase medicine from Prairie Plant Systems, despite that this

supply was originally intended solely for research purposes. In addition, the

regulatory change allowed patients who wished to produce their own medicine to

purchase seeds from Prairie Plant Systems. IOO

181. A unanimous Ontario Court of Appeal then upheld Hitzig I and declared

invalid specific provisions of the MMARs. In addition to striking the restriction on

compensating DPPLs, the Court struck a rule that the holder of a DPPL provide

97 R. v. Parker (2000), 188 D.L.R. (4th) 385 (Ont. C.A-) (emphasis supplied) 98 Marihuana Medical Access Regulations, SORl2001-227 99 Hitzig v. Canada99 , (2003), 171 C.C.C. (3d) 18 (Hitzig I), para.8 100 Regulations Amending the Marihuana Medical Access Regulations SOR/2003"261

38

marijuana to one, and only one, ATP holder (the 1:1 Ratio Restriction) and another

that prevented more than three production licenses from being aggregated at any

one physical location (the "3-Max Restriction"). No suspension of the declaration was

granted. The Court determined that this remedy would immediately render "the

MlIdAR as modified a constitutionally sound medical exemption."101

182. Subsequent to the decision in Hitzig II, the Government re-enacted, verbatim,

2 of the sections of the MMAR that had been stricken. One of these two re-enacted

restrictions was the 1:1 Ratio. Another was the 3-Max Restriction. 102

183. These invalid restrictions on supply were, unsurprisingly, agam made the

subject of litigation and were, again, found to violate the Charter.

184. In 2008, the Federal Court declared the re-enacted 1:1 Ratio to be invalid as

an arbitrary restriction on s. 7 rights.103

185. Subsequently, the British Columbia Supreme Court found the 1:1 Ratio

Restriction and the 3-Max Restriction violated s. 7, and suspended its declaration of

invalidity for one year to allow the government time to respond. 104

186. As it did in response to Hitzig II, the federal government amended the

M1t1ARs subsequent to the Court's decision on appeal in Sfetkopolous and again,

later, in response to the Beren decision.

187. This time, instead ofre-enacting the unconstitutional restrictions verbatim as

it had post-Hitzig, the government elected to incrementally change the scheme.

188. First, in response to Sfetkopolous, the government implemented a 1:2 Ratio

(one producer could now provide cannabis to a maximum of 2 persons instead of

101 Hitzig et al v. Canada (2003) 177 CCC (3d) 449 (Jhtzig Ii), paras Ill, 161, 165, 166, 175 102 Regulations Amending the Marihuana Medical Access Regulations, SOR/2003-387. 103 Sfetkopoulos et.al. v. Attorney General of Canada, 2008 FC 33, affirmed in Canada (Attorney Genera]) v. Sfetkopoulos, 2008 FCA 328, leave to appeal to Supreme Court of Canada denied 104 R v. Beren, 2009 BCSC 429, leave to appeal to Supreme Court of Canada denied at paras.127, 134 and 135

39

one).105 Second, in response to Beren, the government amended the 3-Max

Restriction to allow one additional license to be placed at any physical location

(making it a 4-Max Restriction).106

189. In the case at bar, the application judge suspended his declaration of

invalidity for one year as it applied to non-patients (DPPL holders). At the expiry of

the year Appellant sought more time and the application judge refused that request.

Accordingly, as of April 2013 non-dried forms of cannabis medicine were lawful for

MMAR participants in British Columbia .

. 190. The court of appeal majority determined that the application judge's remedy

was inappropriate, modified it and then suspended its decision for a year. The

parties could not agree on the form of Order with Appellant taking the position that

the effect of the majority decision was to restore the pre-trial state of affairs and

reinstate the prohibition on on-dried form of medicinal cannabis and Respondent

taking the position that the Order was suspended a year including the modification

of the remedy and, therefore, that the restriction was not operative.

191. On February 23, 2015 the court of appeal advised counsel that Appellant's

View was preferred. Accordingly, despite two courts finding that the restriction

violated s. 7, and the government having had almost three years from the date of the

application judge's decision to respond legislatively, patients are now again living

with serious infringements of their rights to liberty and security of the person.

192. The government's history of responding to declarations of invalidity in this

matter has been wholly inadequate. This state of affairs has persisted for almost 15

years, with the courts on one hand making Charter rulings and the government on

the other hand responding to those decisions in such minimal fashion as to ensure

further litigation and further declarations of invalidity. All the while patients are

suffering.

105 Regulations Amending the Marihuana Medical Access Regulation, SOR 2009/S37 106 Regulations Amending the Manhuana Medical Access Regulation, SORl201O-63

40

193. A declaration of invalidity in this Court is virtually certain to leave the

situation unsettled and require additional Charter litigation all to the detriment of

patients' health, safety, autonomy and rights to liberty and security of the person.

194. This state of affairs is contrary to the notion of Charter litigation as a

dialogue between the Courts and the legislature. If there is a dialogue ongoing with

respect to the issue of medical cannabis, it is almost wholly one-sided. The courts

are speaking, but the government is not listening.

195. In Mr. Smith's respectful submission, the only effective remedy that will

ensure that s. 7 is not infringed further is the reading in of a medical exemption to

the CnSA prohibition on Schedule II substances.

196. Reading-in is a remedy available to the Court when legislation is overbroad

in its effects, capturing more activity than necessary to meet the legitimate state

objectives embodied by the law.

197. This case presents a paradigmatic example of when reading-in ought to be

used to provide a responsive and effective remedy to persistent and continuing

Charter violations.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Kirk I. Tousaw Counsel for the Respondent

Vancouver, British Columbia, 22 February 2015.

41

PART VI - TABLE OF AUTHORITIES

Caselaw Cited

Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society [2012] 2 S.C.R. 524

Canada (Attorney General) v. Bedford 2013 SCC 72

Canada (Attorney General) v. PHS Community Services Society [2011] 3 S.C.R. 134

Canada (Attorney General) v. SfetkopouJos, 2008 FCA 328

Canadian Egg Marketing Agency v. Richardson (1998] 3 S.C.R. 157 .

Carter v. Canada (Attorney General) 2015 SCC 5

Chaoulli v. Quebec [2005] 1 S.C.R. 791

Doucet-Boudreau v. Nova Scotia (Minister of Education) [2003] 3 SCR 3

Hitzig v. Canada (2003), 171 C.C.C. (3d) 18

Hitzig et a1 v. Canada (2003) 177 CCC (3d) 449

RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199

Rv. Beren 2009 BCSC 429

R v. Big M Drug Mart [1985] 1 S.C.R. 295

Paragraphs

70

139,152,153,156, 162

126,130

184,188

69

83,85,86,95,116, 139,141,152,161-163

83,89,126,129,131

172

179,181

87,181,186

115

186,189

69,76

R v. Malmo-Levine; R v. Caine [2003] 3 S.C.R. 571

R v. Morgentaler [1988] 1 S.C.R. 30

R v. Nguyen [1990] 2 S. C.R. 906

R. v. Parker (2000), 188 D.L.R. (4th) 385 (Ont. C.A.)

42

Sfetkopoulos et.al. v. Attorney General of Canada 2008 FC 33

Stewart, Hamish. Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law 2012.

PART VII - STATUTORY PROVISIONS

91,104,150

69,83,126

76

85,114,175-178

184,188

108,148

Controlled Drugs and Substances Act, S.C. 1996, c.19, ss.4, 4(1), 5(1), 56

The Constitution Act, 1982, 1982, c.11, ss.1·34, 52

Marihuana Medical Access Regulations, SOR/2001'227

Regulations Amending the Marihuana Medical Access Regulations SOR/2003-261

Regulations Amending the Marihuana Medical Access Regulations, SOR/2003-387.

[All Statutory Provisions produced in the Appellant's Book of Authorities, except the Charter provisions appealed hereto]

OTT_LAw\ 5030316\1

43

CONSTITUTION ACT, 1982 (80)

PART I

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

GUARANTEE OF RIGHTS AND FREEDOMS

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

FUNDAMENTAL FREEDOMS

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

Cd) freedom of association.

(80) Enacted as Schedule B to the Canada Act 1982,1982, c. 11 (U.K.), which came into force on April 17, 1982. The Canada Act !982, other than Schedules A and B thereto, reads as follows:

An Act to give effect to a request by the Senate and House of Commons of Canada

\Vhereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciollsly be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose"

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. The Constitution Act, 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force oflaw in Canada and shall came into force as provided in that Act

2. No Act ofthe Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

3. So far as it is not contained in Schedule B, (he French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof.

4. This Act may be cited as the Canada Act 1982.

53

44 Constitution Act, 1982

DEMOCRATIC RIGHTS

Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Maxul1lun duration of legislative bodies

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members. (81)

Continuation in special circumstances

(2) In time of real or apprehended war, invasion or insurrection, a House of Conunons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond fIve years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. (82)

Annual sitting of legislative bodies

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. (83)

MOBILITY RIGHTS

Mobility of citizens

6. (1) Every citizen of Canada has the right to enter, remain m and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada. has the tight

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

(81) See section 50, and footnotes (40) and (42) to sections 85 and 88, of the Constitution Act, 1867.

(82) Replaces part of Class 1 of section 91 of the Constitution Act, 1867, which was repealed as set out in subitem 1(3) of the schedule to the Constitution Act, 1982.

(83) See footnotes (10), (41) and (42) to sections 20, 86 and 88 of the Constitution Act, 1867.

54


Limitation

(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Affirmative action programs

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged tfthe rate of employment in that province is below the rate of employment in Canada.

LEGAL RIGHTS

Life, liberty and security of person

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 the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against lU1feasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be inform~d promptly ofthe reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

55


(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

if) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission lIDless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment

Treatment or plmishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

EQUALITY RIGHTS

Equality before and under law and equal protection and benefit oflaw

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

56


Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

OFFICIAL LANGUAGES OF CANADA

Oftlciallanguages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

Ofticiallanguages of New Brunswick

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

Advancement of status and use

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Eng!.ish and French linguistic communities in New Brunswick

16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion ofthose communities.

Role of the legislature and government of New Brunswick

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed. (85)

(84) Subsection 31(2) provides that section 15 shall not have effect until three years after section 32 comes into force. Section 32 came into force on April 17, 1982; therefore, section 15 had effect on April 17, 1985.

(85) Section 16.1 was added by the Constitution Amendment, 1993 (New Brunswick) (see SII93-54).

57


Proceedings of Par llamcnt

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament. (86)

Proceedings of New Brunswick legislature

(2) Everyone has the right to use English or French in any debates and other proceedings ofthe legislature of New Brunswick. (87)

Parliamentary statutes and records

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative. (88)

New Brunswick statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative. (89)

Proceedings in courts established by Parliament

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. (90)

Proceedings in New Brunswick courts

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. (91)

Communications by public with federal institutions

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same fight with respect to any other office of allY such institution where

(86) See section 133 of the Constitution Act, 1867 and footnote (67).

(87) Ibid.

(lI8) Ibid.

(89) Ibid.

(90) Ibid.

(91) Ibid.

58


(a) there is a significant demand for communications with and services from that office in such language; or

(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

ComnumicaHons by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Continuation of existing constitutional provisions

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada. (92)

Rights and privileges preserved

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

MINORITY LANGUAGE EDUCATIONAL RIGHTS

Language of instruction

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority popUlation ofthe province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority popUlation of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province. (93)

Continuity of language instruction

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have

(92) See, for example, section 133 of the Constitution Act, 1867 and the reference to the Manitoba Act, 1870 in footnote (67) to that section.

(93) Paragraph 23(1)(a) is not in force in respect of Quebec. See section 59, below.

59


all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

ENFORCEMENT

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (l), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

60


GENERAL

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)

Other rights and freedoms not atfected by Charter

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Multicultural heritage

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Rights respecting certain schools preserved

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. (95)

Application to territories and territorial authorities

30. A reference in this Charter to a province or to the legislative assembly or legislature or a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

(94) Pan~gnl.ph 2S(b} was repealed and re-enacted by the Constitution Amendment Proclamation, 1983 (see SIJ84-102). Paragraph 25(b} originally read as follows:

(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

(95) See section 93 of the Constitution Act, 1867 and footnote (50).

61


Legislative powers not extended

31. Nothing in this Charter extends the legislative powers of any body or authority.

ApPLICATION OF CHARTER

Application of Charter

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and goverrunent of each province in respect of all matters within the authority of the legislature of each province.

Exception

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

Exception where express declaration

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in etIect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

(3) A dec1araiion made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

62


CITATION.

Citation

34. This Part may be cited as the Canadian Charter of Rights and Freedoms.

PART II

RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

Recognition of existing aboriginal and treaty rights

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of "aboriginal peoples of Canada"

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way ofland claims agreements or may be so acquired.

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 ofthis Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the prvpos"d amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. (97)

(96) Subsections 35(3) and (4) were added by the Constitution Amendment Proclamation, 1983 (see SII84-102).

(97) Section 35.1 was added by the Constitution Amendment Proclamation, 1983 (see SII 84-102).

63

Constitution Act, 1982

PARTVl

AMENDMENT TO THE CONSTITUTION ACT, 1867

50. (103)

51. (104)

Primacy of Constitution of Canada

PART VII

GENERAL

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Constitution of Canada

(2) The Constitution of Canada includes

(a) the Canada Act 1982, including this Act;

(b) the Acts and orders referred to in the schedule; and

(c) any amendment to any Act or order referred to in paragraph (a) or (b).

Amendments to Constitution of Canada

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

Repeals and new names

53. (l) The enactments referred to in Column I of the schedule are hereby repealed or amended to the extent indicated in Column II thereof and, unless repealed, shall continue as law in Canada under the names set out in Column III thereof.

Consequential amendments

(2) Every enactment, except the Canada Act 1982, that refers to an enactment referred to in the schedule by the name in Column I thereof is hereby amended by substituting for that name the corresponding name in Column III thereof, and any British North America Act not referred to in the schedule may be cited as the Constitution Act followed by the year and number, if any, of its enactment.

(103) The text of this amendment is set out in the Constitution Act, 1867, as section 92A.

(104) The text of this amendment is set out in the Constitution Act, 1867, as the Sixth Schedule.

69

55

LOI CONSTITUTIONNELLE DE 1982 (80)

PARTIE I

CHARTE CANADlENNE DES DROITS ET LlBERTES

Attendu que Ie Canada est fonde sur des principes qui reconnaissent la suprematie de Dieu et 1a primaute du droit:

GARANTlE DES ORons EI LIBERIES

Droits et libertes au Canada

1. La Charte canadienne des draits et libertes garantit 1es droits et Iibertes qui y sont enonces. Us ne peuvent etre restreints que par une regIe de droit, dans des lim.ites q~li soient raisonnables et dont la justification puisse se demontrer dans Ie cadre d'une societe libre et democratique.

LIBERTES FONDAMENIALES

Libertes fondamentales

2. Chacun ales 1ibertes fondamentales suivantes :

a) liberte de conscience et de religion;

b) liberte de pensee, de croyance, d'opinion et d'expression, y compris 1a liberte de 1a presse et des autres moyens de communication;

(80) Edictee comme l'annexe B de la Loi de 1982 sur Ie Canada, 1982, ch. 11 (R.-H), entree en vigueur Ie 17 avril 1982. Texte de la Loi de 1982 sur Ie Canada, a l'exception de l'annexe B :

ANNEXE A - SCHEDULE A

Lo, (ibriiliint silite a une demande au :senat el de la Chambre des communes du Canada

Sa Ires Excellente Majeste la Reine, considerant :

qu'a la demande et avec Ie consentement du Canada, Ie Parlement du Royaume-Uni est invite it adopter Wle loi visant it donner effet aux dispositions imoncees ci-apres et que le Senat et la Chambre des communes du Canada reunis en Parlement ont presente une adresse demandant it Sa Ires Gracieuse Majeste de bien vouloir faire deposer devant Le Parlement du Royaume-Uoi un projet de loi a cette fin,

sur l'avis et du consentement des Lords spirituels et temporels et des Communes n\unis en Parlement, et par L'autorite de celui-ci, edicte :

L La Lo! cOl1stiluliol1l1elle de 1982, enoncee it l'annexe B, est 6dictee pour Le Canada et y a force de loi. Elle entre en v~ueur confonnement a ses dispositions"

2. Les Lois adoptees par Ie Par1ement du Royaume-Uni apres ['entree en vigueur de la Lot constitutiol1neile de 1982 ne font pas partie du droit du Canada.

3. La partie de la version fran9aise de la presente loi qui figure a I 'annexe A a force de loi au Canada au meme titre que La version angLaise correspondante.

4. Titre abrege de la presente loi . Loi de 1982 sur Ie Canada.

53

Loi constitutionnelle de 1982

c) liberte de reunion pacifique;

d) liberte d' association.

DROITS DEMOCRA TrQUES

Droits democratiqucs des ci10yens

3. Tout citoyen canadien a Ie droit de vote et est eligible aux elections legislatives federales ou provinciales.

Mandat maximal des assemblees

4. (1) Le mandat maximal de la Chambre des communes et des assemblees legislatives est de cinq ans a compter de la date fixee pour Ie retour des brefs relatifs aux elections generales correspondantes. (81)

Prolongations specialcs

(2) Le mandat de la Chambre des communes ou celui d'une assemblee legislative peut eire prolonge respectivement par Ie Parlement ou par la legislature en question au-dela de cinq ans en cas de guerre, d'invasion ou d'insurrection, reelles ou apprehendees, pourvu que cette prolongation ne fasse pas l'objet d'une opposition exprimee par les voix de plus du tiers des deputes de Ia Chambre des communes ou de l'assemblee legislative. (82)

Seance annuelle

5. Le Parlement et les legislatures tiennent une seance au moins une fois tous les douze mois. (83)

LIBERTE DE CIRCULATION ET D'ETABLlSSEMENT

Liberte de circulation

6. (1) Tout citoyen canadien a Ie droit de demeurer au Canada, d'y entrer ou d'en sortir.

Liberte d'etablissement

(2) Tout citoyen canadien et toute personne ayant Ie statut de resident permanent au Canada ont Ie droit:

(81) Voir l' article 50 de la Loi cOHstitutionnelle de 1867 et les notes en bas de page (40) et (42) relatives aux articles 85 et 88 de cette loi.

(82) Rcmpla~e en pa~th~ In categorie 1 de I'article 91 de laLoi constitutionnelle de 1867, qui a He abrogee comme l'indique Ie paragraphe 1(3) de l'annexe de la Loi constituaonnelle de 1982.

(83) Voir les notes en bas de page (10), (41) et (42) relatives aux articles 20, 86 et 88 de la Loi constitutionnelle de 1867.

54

57 Loi constitutionnelle de 1982

a) de se deplacer dans tout Ie pays et d' etablir leur residence dans toute province;

b) de gagner 1 eur vie dans toute province.

Restriction

(3) Les droits mentionnes au paragraphe (2) sont subordonnes :

a) aux lois et usages d'application generale en vigueur dans une province donnee, s'ils n'etablissent entre les personnes aucune distinction fondee principalement sur la province de residence anterieure ou actuelle;

b) aux lois prevoyant de justes conditions de residence en vue de l'obtention des services sociaux pUblics.

Programmes de promotion socialc

(4) Les paragraphes (2) et (3) n'ont pas pour objet d'interdire les lois, programmes ou activites destines a ameliorer, dans une province, la situation d'individus defavorises socialement ou economiquement, si Ie taux d' emploi dans la province est inferieur it la moyenne nationale.

GARANTIES JURIDIQUES

Vie, liberte et securite

7. Chacun a droit a la vie, it la liberte et a la securite de sa personne; il ne peut etre porte atteinte a ce droit qu'en conformite avec les prindpes de justice fondamentale.

Fouil1es, perquisitions ou saisies

8. Chacun a droit a la protection contre les fouilles, les perquisitions ou les saisies abusives.

Detention ou emprisonnement

9. Chacun a droit a la protection contre la detention ou l'emprisonnement arbitraires.

Arrestation au detention

10. Chacun a Ie droit, en cas d'arrestation ou de detention:

a) d' etre informe dans les plus brefs delais des motifs de son arrestation ou de sa detention;

b) d'avoir recours sans delai it l'assistance d'un avo cat et d'etre informe de ce droit;

c) de faire controler, par habeas corpus, la legalite de sa detention et d' obtenir, Ie cas echeant, sa liberation.

55


Affaires criminelles et penales

11. Tout inculpe a Ie droit:

a) d'etre informe sans delai anormal de l'infraction precise qu'on lui reproche;

b) d' etre juge dans un deJai raisonnable;

c) de ne pas etre contraint de remoigner contre lui-meme dans to ute poursuite intentee contre lui pour l'infraction qu'on lui reproche;

d) d'etre presume innocent tant qu'il n'est pas declare coupable, conformement a la loi, par un tribunal independant et impartial a l'issue d'un procE~s public et equitable;

e) de ne pas etre prive sans juste cause d'une mise en liberte assortie d'un cautionnement raisonnable;

f) sauf s'il s'agit d'tme infraction relevant de la justice rnilitaire, de beneficier d'un proces avec jury lorsque la peine maximale prevue pour l'infraction dont il est accuse est un emprisonnement de cinq ans au une peine plus grave;

g) de ne pas etre declare coupable en raison d'une action au d'une omission qui, au moment au elle est survenue, ne constituait pas une infraction d'apres Ie droit interne du Canada au Ie droit international et n'avait pas de caractere criminel d'apres les principes generaux de droit reconnus par l'ensemble des nations;

h) d'une part de ne pas etre juge de nouveau pour une infraction dont i1 a ete definitivement acquitte, d'autre part de ne pas etre juge ni puni de nouveau pour une infraction dont il a ete definitivement declare coupable et puni;

i) de beneficier de la peine la mains severe, lorsque la peine qui sanctionne l'infraction dont il est declare coupable est modifiee entre Ie moment de la perpetration de l' infraction et celui de la sentence.

Cruaute

n. Chacun a droit a la protection contre taus traitements au peines cruels et inusites.

Temoignage incriminant

13. Chacun a droit a ce qu'aucun temoignage incriminant qu'il donne ne soit utilise pour l'incriminer dans d'autres procedures, sauflors de poursuites pour parjure au pour temoignages contradictoires.

Interprete

14. La partie au Ie temoin qui ne peuvent suivre les procedures, soit parce qu'ils ne comprennent pas au ne parient pas la langue employee, soit parce qu'ils sont atteints de surdite, ant droit a I'assistance d'un interprete.

56

59 Lot constitutionnelle de 1982

DROlTS A L'EGALTTE

Egalite devant La loi, egalite de benefice et protection egale de La Loi

15. (1) La loi ne fait acception de personne et s' applique egalement it tous, et tous ont droit it la meme protection et au meme benefice de la loi, independamment de toute discrimination, notamment des discriminations fondees sur la race, l'origine nationale ou ethnique, la couleur, la religion, Ie sexe, l'age ou les deficiences mentales ou physiques.

Programmes de promotion sociale

(2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activites destines it ameliorer 1a situation d'individus ou de groupes defavorises, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur age ou de leurs deficiences mentales ou physiques. (34)

LANGUES OFFIClELLES DU CANADA

Langues officielles du Canada

16. (1) Le franyais et l'anglais sont les langues officielles du Canada; i1s ont un statut et des droits et privileges egaux quant it leur usage dans les institutions du Parlement et du gouvemement du Canada.

Langues offi6dLcs du Nouveau-Brunswick

(2) Le franyais et l'anglais sont les langues officielles du Nouveau-Brunswick; ils ont un statut et des droits et privileges egaux quant a leur usage dans les institutions de la Legislature et du gouvernement du Nouveau-Brunswick.

Progression vers l' egaLite

(3) La presente charte ne limite pas Ie pouvoir du Parlement et des legislatures de favoriser la progression vers l'egalit6 de statut ou d'usage du franyais et de l'anglais.

Communautes Iinguistiques franyaise et anglaise du Nouveau-Bnmswick

16.1 (1) La communaute linguistique franyaise et la communaute linguistique anglaise du Nouveau-Brunswick ont un statut et des droits et privileges egaux, notamment Ie droit it des institutions d'enseignement distinctes et aux institutions culturelles distinctes necessaires a leur protection et a leur promotion.

(84) Le paragraphe 32(2) stipule que l'article 15 n'a d'effet que trois ans apres l'entree en vigueur de l'article 32. L'article 32 est en vigueur depuis Ie 17 avril 1982; par consequent, I'article 15 a pris effet Ie 17 avril 1985.

57


Role de la legislature et du gouvemement du Nouveau-Brunswick

(2) Le role de la legislature et du gouvernement du Nouveau-Brunswick de proteger et de promouvoir Ie statut, les droits et les privileges vis~s au paragraphe (1) est confirme. (85)

Travaux du Parlement

17. (1) Chacun a Ie droit d' employer Ie franc;ais ou I' anglais dans les debats et travaux du Par1ement. (86)

Travaux de la Legislature du Nouveau-Brunswick

(2) ChacW1 a Ie droit d'employer Ie franc;ais ou l'anglais dans les debats et travaux de Ia Legislature du Nouveau-Brunswick. (87)

Documents parlementaires

18. (1) Les lois, les archives, les comptes rendus et les proces-verbaux du Parlement sont imprimes et publies en franc;ais et en ang1ais, les deux versions des lois ayant egalement force de loi et celles des autres documents ayant meme valeur. (88)

Documents de la Legislature du Nouveau-Brunswick

(2) Les lois, les archives, les comptes rendus et les proces-verbaux de la Legislature du Nouveau-Brunswick sont imprimes et publies en franc;ais et en anglais, les deux versions des lois ayant egalement force de 10i et celles des autres documents ayant meme valeur. (89)

Procedures devant les tribunaux etablis par Ie Parlement

19. (1) Chacun a Ie droit d'employer Ie franyais ou l'anglais dans toutes les affaires dont sont saisis les tribunaux etablis par Ie Parlement et dans to us les actes de procedure qui en decoulent. (911)

(85) L'article 16.1 a He ajoute aux termes de la Modification constitutionnelle de 1993 (Nouveau-Brunswick) (voir TRl93-54).

(86) Voir Particle 133 de la Loi constitutionllelle de 1867 et la note en bas de page (67) relative a cet article.

(87) Ibid.

(88) Ibid.

(89) Ibid.

(90) Ibid.

58


Procedures devant les tribunaux du Nouveau-Brunswick

(2) Chacun a Ie droit d' employer Ie francrais ou l' anglais dans toutes les affaires dont sont saisis les tribunaux du Nouveau-Brunswick et dans tous les actes de procedure qui en decoulent. (91)

Communications entre les administn!is et les institutions federates

20. (1) Le public a, au Canada, droit a l'emploi du franyais ou de l'anglais pour communiquer avec Ie siege ou l'administration centrale des institutions du Parlernent ou du gouvemement du Canada ou pour en recevoir les services; il a Ie meme droit a l'egard de tout autre bureau de ces institutions la ou, selon Ie cas:

a) l'emploi du francrais ou de l'anglais fait l' objet d'une demande importante;

b) l' emploi du francrais et de l'anglais se justifie par la vocation du bureau.

Communications cntre les administr6s et les institutions du Nouveau-Brunswick

(2) Le public a, au Nouveau-Brunswick, droit a l'emploi du franyais ou de l'anglais pour communiquer avec tout bureau des institutions de la legislature ou du gouvernement ou pour en recevoir les services.

Maintien en vigueur de certaines dispositions

21. Les articles 16 a 20 n'ont pas pour effet, en ce qui a trait a la langue francraise ou anglaise ou a ces deux langues, de porter atteinte aux droits, privileges ou obligations qui existent ou sont maintenus aux termes d'une autre disposition de la Constitution du Canada. (92)

Droits preserves

22, Les articles 16 a 20 n'ont pas pour effet de porter atteinte aux droits et privileges, anterieurs au posterieurs a l' entree en vigueur de la presente charte et decoulant de la loi ou de la coutume, des langues autres que Ie franyais ou l'anglais.

DROITS A L'lNSTRUCTION DANS LA LANGUE DE LA MINORITE

Langue d'instruction

23. (1) Les citoyens canadiens :

a) dont la premiere langue apprise et encore comprise est celie de la minorite francophone ou anglophone de la province ou ils resident,

b) qui ont recru leur instruction, au niveau primaire, en franc;;ais ou en anglais au Canada et qui resident dans une province ou la langue dans laquelle ils ont rec;;u

(91) Ibid.

(92) Voir par exemple l'article 133 de la Loi constitutionnelle de 1867 et Ie renvoi ala Lo; de 1870 sur Ie Manitoba dans la note en bas de page (67) relative a cet article.

59


cette instruction est celIe de la minorite franco phone ou anglophone de la province,

ont, dans l'un ou l' autre cas, Ie droit d'y faire instruire leurs enfants, aux niveaux primaire et secondaire, dans cette langue. (93)

Continuite d'empioi d.e la langue d'instruction

(2) Les citoyens canadiens dont un enfant a re9u ou re90it son instruction, au niveau primaire ou secondaire, en fran9ais ou en anglais au Canada ont Ie droit de faire instruire tous leurs enfants, aux niveaux primaire et secondaire, dans la langue de cette instruction.

Justification par Ie nombre

(3) Le droit reconnu aux citoyens canadiens par les paragraphes (1) et (2) de faire insLruire leurs enfants, aux niveaux primaire et secondaire, dans la langue de la rninorite francophone ou anglophone d'une province:

a) s'exerce partout dans la province OU Ie nornbre des enfants des citoyens qui ont ce droit est suffisant pour justifier a leur endroit la prestation, sur les fonds publics, de l'instruction dans la langue de la minorite;

b) comprend, lorsque Ie nombre de ces enfants Ie justifie, Ie droit de les faire instruire dans des etablissements d'enseignement de la minorite linguistique finances sur les fonds publics.

RECOURS

Recours en cas d" atteinte aux droits et libertes

24. (1) Toute personne, victime de violation ou de negation des droits ou libertes qui lui sont garantis par la presente charte, peut s' adresser a un tribunal competent pour obtenir la reparation que Ie tribunal estime convenable et juste eu egard aux circonstances.

IYii;,C6'vaililite d'tleIT,eIlts de preuve qui risqucraierrt de deconside(er ['administration de lajustice

(2) Lorsque, dans une instance visee au paragraphe (1), Ie tribunal a conclu que des elements de preuve ont ete obtenus dans des conditions qui portent atteinte aux droits ou libertes garantis par la presente charte, ces elements de preuve sont ecartes s'il est etabIi, eu egard aux circonstances, que leur utilisation est susceptible de deconsiderer l' administration de la justice.

(93) L'alilltla 23(1)a) n'est pas en vigueur pour Ie Quebec. Voir l'articIe 59, ci-dessous.

60


DISPOSITIONS GENERALES

Maintien des droi ts et libertes des autochtones

25. Le fait que la presente charte garantit certains droits et libertes ne porte pas atteinte aux droits ou libertes - ancestraux, issus de traites ou autres - des peuples autochtones du Canada, notamment :

a) aux droits ou libertes reconnus par la procianration roy ale du 7 octobre 1763;

b) aux droits ou libertes existants issus d' accords sur des revendications territoriales ou ceux susceptibles d'etre ainsi acquis. (94)

Maintien des autres droits et libertes

26. Le fait que la presente charte garantit certains droits et libertes ne constitue pas une negation des autres droits ou libertes qui existent au Canada.

Maintien du patrimoine culturel

27. Toute interpretation de la presente charte doit concorder avec l' objectif de promouvoir Ie maintien et la valorisation du patrimome multiculturel des Canadiens.

Egalite de garantie des moits pour les deux sexes

28. Independamment des autres dispositions de la presente charte, les droits et libertes qui y sont mentionnes sont garantis egalement aux personnes des deux sexes.

Maintien des droits rclatifs a certaines ecoles

29. Les dispositions de la presente charte ne portent pas atteinte aux droits ou privileges garantis en vertu de la Constitution du Canada concernant les ecoles separees et autres ecoles confessionnelles. (95)

Application aux territoires

30. Dans la presente charte, les dispositions qui visent les provinces, leur legislature ou leur assemb16e 16gislative visent egalement Ie territoire du Yukon, Ies territoires du Nord-Ouest ou leurs autorites legislatives competentes.

Non-elargissement des competences legislatives

31. La presente charte n'elargit pas les comp6tences legislatives de quelque organisme ou autorite que ce soit.

(94) L'aH!!k~ lSb) B ete abrQge et remp!ace aux termes de la Proclamation de 1983 modifiant la Constitution (voir TRl84-102). Texte original de I'alinea 25h) :

b) aux droits ou libertes acquis par reglemellt de revelldicatiolls territoriales.

(95) Voir Particle 93 de la Loi constitutionnelle de 1867 et la note en bas de page (50) relative a cet article.

61

64


ApPLICATION DE LA CHARTE

Application de la charte

32. (1) La presente charte s'applique:

a) au Parlement et au gouvemement du Canada, pour tous les domaines relevant du Parlement, y compris ceux qui concement Ie territoire du Yukon et les territoires du Nord-Ouest;

b) a la legislature et au gouvemement' de chaque province, pour taus les domaines relevant de cette legislature.

Restriction

(2) Par derogation au paragraphe (1), \'article 15 n'a d'effet que trois ans apres l' entree en vigueur du present article.

Derogation par declaration cxpresse

33. (1) Le Parlement ou la legislature d'une province peut adopter une Ioi OU il est expressement declare que celle-ci ou une de ses dispositions a effet independamment d'une disposition donnee de l'article 2 ou des articles 7 a 15 de Ia presente charte.

Effet de la derogation

(2) La 10i ou la disposition qui fait l'objet d'une declaration conforme au present article et en vigueur a l' effet qu' elle aurait saufla disposition en cause de 1a charte.

Duree de validite

(3) La declaration visee au paragraphe (1) cesse d'avoir effet a la date qui y est precisee ou, au plus tard, cinq ans apres son entree en vigueur.

Nouvelle adoption

(4) Le Parlement ou une legislature peut adopter de nouveau une declaration visee au paragraphe (1).

Duree de validite

(5) Le paragraphe (3) s'applique it toute declaration adoptee sous Ie regime du paragraphe (4).

TITRE

Titre

34. Titre de la presente partie: Charte canadienne des droits et libertes.

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PARTIE VII

DISPOSITIONS GENERALES

Prima ute de la Constitution du Canada

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52. (1) La Constitution du Canada est la loi supreme du Canada; elle rend inoperantes les dispositions incompatibles de toute autre regIe de droit.

Constitution du Canada

(2) La Constitution du Canada comprend:

a) la Loi de 1982 sur Ie Canada, y compris la presente 10i;

b) les textes legislatifs et les decrets figurant it l'annexe;

c) les modifications des textes legislatifs et des decrets mentionnes aux alineas a) oub).

Modification

(3) La Constitution du Canada ne peut eire modifiee que conformement aux pouvoits conferes par elle.

Abrogation et nouveaux titres

53. (1) Les textes legislatifs et les decrets enumeres it la colonne I de l'annexe sont abroges ou modifies dans la me sure indiquee it la colonne II. Sauf abrogation, ils restent en vigueur en tant que lois du Canada sous les titres mentionnes it la colonne III.

Modifications correlatives

(2) Tout texte legislatif ou reglementaire, sauf la Loi de 1982 sur Ie Canada, qui fait mention d'un texte legislatif ou deeret figurant a l'annexe par Ie titre indique a la colonne I est modifie par substitution it ce titre du titre correspondant mentionne it la colo nne III; tout Acte de l' Amerique du Nord britannique non mentionne it I' annexe peut etre QiM sous Ie titre de Loi constitutionnelle suivi de !'indication de I' annee de son adoption et eventuellement de son numero.

Abrogation et modifications qui en decoulent

54. La partie IV est abrogee un an apres l'entree en vigueur de la presente partie et Ie gouverneur general peut, par proclamation SOllS Ie grand sceau du Canada, abroger Ie present article et apporter en consequence de cette double abrogation les amenagements qui s'imposent a la presente loi. (105)

(105) La partie VII est entree en vigueur Ie 17 avril 1982 (voir TR/82-97).

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