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Articles - Law and treaties
Written by John Conroy   

Analysis of 2 January Windsor, Ontario Court Ruling
John Conroy

(Jan. 5, 2003) While a reading of this recent case by a non lawyer may seem to be quite technical, and it has been described by some as a loophole, in fact it results from the application of "the principles of fundamental justice" under s.7 of Canada's Constitution, the Canadian Charter of Rights and Freedoms.

In 1982 Canada became a "Constitutional Democracy" as opposed to a "Parliamentary Democracy". The Constitution, and no longer Parliament, became supreme and it fell to the independent courts to interpret and apply it and ensure the government complies with it.

S.7 of the Charter provides that everyone in Canada, not just citizens, have the right to life, liberty and the security of their persons and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In a case called Morgentaler(1988), the Supreme Court of Canada(SCC) struck down the abortion provisions of our criminal code holding essentially that they caused a woman to choose between her liberty and her health. Also that the "therapeutic abortion committees" were unconstitutional because they operated without legislated criteria against which one could measure the exercise of their discretion. A women had to apply for permission to get an abortion and could be turned down because there were no criteria. The government was given a certain period to try and make those laws comply with the Constitution but did not do so and abortion became legal in Canada.

In Parker(2000), the Ontario Court of Appeal, following Morgentaler, held that the section of the Controlled Drugs and Substances Act prohibiting possession of cannabis was unconstitutional because it caused a person with a serious medical need to similarly choose between their liberty and their health, because there was no provision for medical access. S.56 of the Act was held unconstitutional because it gave the Minister an absolute discretion to grant exemptions for medical use but, again, with no criteria to govern it. Consequently the Court gave the Government 12 months to fix it up.

The Government's response was the Marihuana Medical Access Regulations. They did not move to have s.56 amended by Parliament. While those Regulations appear to take away the Minister's discretion by setting up various criteria for various categories, the discretion has really just been shifted to the bureaucracy, but according to criteria in easily changeable "regulations" as opposed to in the "Act". Regulations are passed by the Federal Cabinet (the Governor General in Council) and are easily amended or withdrawn. To amend the Act requires Parliament, not just the executive Cabinet.

In the Young Persons case out of Windsor, Ontario, the Court held that the Parker decision required the Federal Government to put the matter before Parliament to amend the Act so that it set out the criteria governing any discretion given to the Minister or others by regulation or otherwise. The principles of fundamental justice require that the criteria or 'legislative standard' be set out in the Act, not just the easily changeable regulations. Because the government had failed to do so it had failed to comply with the terms of the Ontario Court of Appeals decision in Parker within the 12 month period allotted and consequently s.4, the possession section became, or rather remained unconstitutional.

Consequently s.7 of the Charter, and specifically "the principles of fundamental justice" require that before "liberty" or the "security of ones person" can be affected there must be some legislated criteria set out in the Act against which any discretion given is measured.

In my opinion the same applies to s.60 of the Controlled Drugs and Substances Act which purports to give the Cabinet an unrestricted discretion to add to or remove drugs from the schedules to the Act if the Cabinet, not Parliament, deems it to be "in the public interest". This term has already been held to be unconstitutionally vague and as being without settled meaning by the SCC in the cases of Morales and Pearson(1992) striking out such as a basis or criteria for denial of bail. There should be legislated criteria, that should probably be "risk of harm" based, in the Controlled Drugs and Substances Act, so that "cannabis" which does not present a significant risk of harm to others or to the public as a whole, could not be prohibited.

John W.Conroy,QC

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Our valuable member John Conroy has been with us since Sunday, 19 December 2010.