IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Carl John Anderson and Wesley Bruce Jenkins have made an application pursuant to section 52 of the Constitution Act, 1982 challenging sections 5(2), 11 and 13 (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and sections 489.1 and 490 of the Criminal Code for violating sections 7, 8 and 15 of the Canadian Charter of Rights and Freedoms.  Distilled down to its simplest, the challenge is to the structure of the CDSA and the regulations enacted in relation to the efficacy of licit medical marijuana, as well as the seizure, detention and release of medical marijuana.

[2]           The trial with respect to the trafficking charges brought against these two men was held from February 17 to 20, 2014.  The Crown sought a Vukelich hearing with respect to the section 52 application scheduled to be heard following the Crown case.

[3]           Messrs. Anderson and Jenkins are opposed to a Vukelich hearing.  In the event that I order a Vukelich hearing is appropriate, they wish to continue the Vukelich hearing to establish what questions can be asked, what disclosure needs to be made in advance, and what evidence may be led.

[4]           The Crown has provided a useful legislative history to the CDSA, which came into effect in 1997, and the Marijuana Exemption (Food and Drugs Act), Regulations, SOR/2003-261, which came into force on July 8, 2003. 

[5]           The Crown argued substances controlled under the CDSA are divided into Schedules which partly reflect the chemical nature and origins of the substances, and partly reflect the risk that Parliament has ascribed to the substances. This suggests there has been some kind of assessment of the risks of marijuana but there is no evidence of that before me.  This becomes important in my considerations of the question before me and whether it has been heard. 

[6]           There is some overlap between the CDSA, the Food and Drugs Act, R.S.C. 1985, c. F-27 (FDA) and the Food and Drug Regulations, C.R.C. c. 870 (FDR) (the Food and Drug Legislation). Some of the controlled substances found in the Schedules to the CDSA can be legally distributed.  Any substance to be marketed in Canada as a pharmaceutical product or drug must satisfy the regulatory requirements of the Food and Drug Legislation.  If the substance is a controlled substance, distribution is prohibited unless authorized under the CDSA regulations.

[7]           The Marijuana Exemption (Food and Drugs Act) Regulations provisions exempt cannabis marijuana from the Food and Drug Legislation when produced under contract with the government or under license issued under the Marijuana Medical Access Regulations, SOR/2001-227 (MMARs).

[8]           These regulations provide for the lawful possession, production and limited distribution of cannabis marijuana for medical purposes.  Given the foregoing submissions of Crown regarding legislative purpose, this also implies some form of testing for the regulatory requirements.  That evidence is also not before me.

[9]           Marijuana for Medical Purposes Regulations (MMPR) came into force on June 19, 2013 and ran concurrently with the MMAR with the intention that the MMAR would be repealed on March 31, 2014 once the new regime under the MMPR was fully implemented.

[10]        Very much in brief, it is alleged Mr. Anderson established a business for the production and distribution of marijuana.  Mr. Jenkins is alleged to have been in the process of selling marijuana at the business when the police executed a search warrant at premises operated by the Canadian Safe Cannabis Society and Laughing Laboratories Ltd.  The Notice of Intent to Question Constitutional Validity discloses that Mr. Anderson intends to call evidence to show, among other things, the MMARs do not permit and actually prevent access to properly tested marijuana.

[11]        The Crown argued these issues have all been heard and determined by various courts before; the Notice is deficient in that it does not specify what the issues, challenges and evidence will be; and the question is moot because the legislation will change in April providing for the testing Mr. Anderson says is not done.  The Crown requests a Vukelich hearing to determine what can be heard, if anything; what evidence is to be called; and how the focus of the application can be narrowed.  The Crown has indicated that its arguments on such a hearing are now before me.

[12]        The Crown argued that a section 52 hearing is a voir dire.  The Defence argued that the section 52 hearing is not a voir dire but an application that is freestanding and not dependent upon the evidence called at trial.  However, Mr. Anderson hopes to rely upon some of that evidence should it be necessary to rely upon the defence of necessity.  Mr. Jenkins intends to call no evidence and has an insufficient evidence motion before the court which has been deferred to the conclusion of the section 52 application. 

[13]        The nature of a section 52 application is such that it may be no evidence is called.  In other cases, extensive evidence may be necessary in order to lead the necessary evidence for the court to make a determination.  In any event, no matter what evidence is called, the application is not necessarily dependent upon the facts of the case.  In a section 52 application, it need not be the rights of the accused person being violated. 

[14]        A voir dire is a hearing that takes place in a trial to determine admissibility of evidence on the trial.  A section 52 application is typically heard at the end of the trial after the record is placed before the court.  In this case, the evidence to be led on the application is not on the issue of trafficking, which is the subject of the trial, but on the issue of constitutionality.  The evidence on the application, while it may touch on facts and even incorporate evidence otherwise from the matters covered by the trial, is not evidence properly admissible on the trial.  In this case, Crown and Defence have agreed that the evidence called on the trial proper can be used on the application to avoid the cumbersome prospect of recalling all of that evidence.  It seems that this may be a necessary part of the procedure to ensure a fulsome record is before the court. 

[15]        Unfortunately, there is a paucity of resources on the procedure of a section 52 application.  I am compelled to piece together that procedure from the legislation, procedures evidently followed by courts in the decisions I have been given on the substantive issues, dicta musings and grumblings, and the precious few text resources I was able to locate on my own. 

[16]        Neither counsel referred to the Constitutional Question Act in the submissions regarding whether I should conduct a Vukelich hearing.  The Constitution provides an unqualified right to an accused person to challenge the constitutional validity of legislation pursuant to which he or she may be convicted regardless of whether that legislation infringes upon a right of that accused.  The court has an inherent jurisdiction to control its own processes to ensure proper trial management and to avoid being bogged down in the morass complained of in the cases before me. 

[17]        The Constitutional Question Act, R.S.B.C. 1996, c. 68 is a specific regime setting out the process and procedure for making an application to question the validity of legislation under section 52 of the Constitution Act.  Section 8(4) of the Constitutional Question Act sets out what must be contained within that notice.  That Act does not contain any provision permitting an Attorney General to apply to strike such notice. 

[18]        I must conclude from this that the legislators did not intend to give such a right to the Attorneys General.  I must also conclude that the legislators intended the Attorneys General to be given a very specific kind of notice.  So long as the notice meets the requirements of the Constitutional Question Act, there is no statutory authority to decline to hear the application.

[19]        A Vukelich hearing, which takes its name from R. v. Vukelich, 1996 CanLII 1005 (BCCA), is a threshold hearing to determine whether a voir dire is appropriate.  The accused are not seeking a voir dire but are bringing an application to challenge certain parts of the Controlled Drugs and Substances Act.  The Defence argued that there is no authority for a Vukelich hearing to be held for a constitutional question application.  Furthermore, a Vukelich hearing concerns whether a Charter voir dire should be held during the Crown’s case, not the Defence case.  By trying to impose a Vukelich hearing on this application, the Defence says the Crown is requiring the Defence to justify calling its case.  

[20]        In fact, a voir dire may be called in either case.  It is more typically called in the Crown case but nothing precludes a party calling a voir dire in the Defence case.  Presumably that also means a Vukelich hearing may also be heard in either case.

[21]        Mr. Buckley argued this is a standing issue as it engages the right of the Defendants under section 7 of the Charter to make full answer and defence.  The Defendants have an unfettered right under the Constitution to challenge the constitutionality of any law under which they may be convicted.  A Vukelich hearing implies the court may, on a pre-hearing motion, deny the Defendants that right.

[22]        The court held in Vukelich that, generally speaking, the reason for having or not having a voir dire and the conduct of such proceedings should be based upon statements of counsel.  The court observed that far too much judicial time was consumed by the conduct of such voir dires.  If the statements of counsel were not sufficient to dispose properly of the question, the Defence should lead evidence to persuade the judge to embark upon the voir dire.

[23]        There is no advance notice of a request for a voir dire.  Advance notice is required for a Charter argument where counsel or the accused ought to be aware of the possibility of that argument as it arose from disclosure. There are no specific forms or formats prescribed for that notice. 

[24]        With a constitutional challenge, the Defence must meet the requirements of the Constitutional Question Act or the application cannot be heard.  If the Crown is not satisfied with the particulars set out in the notice, it may seek particulars.  The Crown has done this and the Defence has responded even before the formal Notice of Intent to Question Constitutional Validity was filed. 

[25]        I note that the Constitutional Question Act does not apply to applications under section 24(2) of the Charter which was the relief sought in Vukelich.  While a section 24(1) remedy may be sought in conjunction with a section 52 application, it does not appear likely that the Constitutional Question Act would apply to section 24(1) either.

[26]        The only case either counsel were able to provide to me with respect to whether a Vukelich hearing was appropriate on a constitutional challenge application is one that I decided last year in R. v. Shymanski, 2013 BCPC 130 (CanLII), 2013 B.C.P.C. 130.  As Mr. Buckley rightly pointed out, my answer was inconclusive in the circumstances of that case. 

[27]        Mr. Buckley argued that a Vukelich hearing is inappropriate because this is a challenge under section 52 of the Constitution Act.   He said that the proper notice was given to both Attorneys General and a draft of that notice was given well in advance of formal service. 

[28]        The Defendants have a right to challenge the constitutional validity of the law under which they are charged.  Mr. Buckley cited R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] S.C.J. No. 17 for the proposition that any accused, be it corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. 

[29]        The Defence also cited R. v. Parker, 2000 CanLII 5762 (OCA) where the court considered the standing of a party liable for conviction for an offence under a law to challenge its constitutionality.  The cases make it clear that it is a right to challenge the constitutionality.  The only question is whether the person is liable for conviction for an offence under that impugned law.  This is only in regard to such applications brought in criminal proceedings. Civil challenges are an entirely different matter.

[30]        The Crown argued that the court must have inherent jurisdiction to control its own processes which must include ordering a Vukelich hearing for the purposes of determining whether lengthy and unnecessary applications on constitutional challenges are redundant or moot.  The Crown says both apply in this case because not only have the issues already been asked and answered pursuant to section 52 but, come April, 2014, the legislation that is the subject of the constitutional challenge will be repealed and replaced by new legislation.

[31]        In R. v. Bradley, 1999 CanLII 5756 (BCSC), S. Romilly, J. cited Finlayson, J.A. from R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 72 CCC (3d) 421 (Ont. C.A.), reversed on other grounds (1994), 1994 CanLII 123 (SCC), 88 CCC (3d) 1 (SCC) p. 440:

[32]        Romilly, J. continued to say that he was satisfied from the submissions of counsel that he had sufficient information before him to determine whether a voir dire was appropriate.  The very important distinction is that Romilly, J. was considering an application under section 24(2) for the exclusion of evidence, not a section 52 application brought under the Constitutional Question Act procedures. 

[33]        Mr. Eccles argued that it is precisely this morass which the court is entitled to prevent through a Vukelich hearing preceding any section 52 application. Of course, in this case, the court is now bogged down in the process of having a hearing about whether a Vukelich hearing is appropriate. 

[34]        It makes good sense that if the constitutional question has already been heard and determined on the same legislation and the same question, the court must have a process by which it can prevent repeating the process.  In R. v. Sipes, 2008 BCSC 1257 (CanLII), 2008 B.C.S.C. 1257, Smart, J. addressed the concerns of modern trials which are substantially longer and more complex due to the expansion of issues that now arise.  He addressed the responsibility and authority of a trial judge to manage the trial; to ensure not only a fair trial but also an efficient process.  He cited R. v. Felderhof  (2003), 2003 CanLII 37346 (ON CA), 235 D.L.R (4^th) 131, 180 C.C.C. (3d) 498 (Ont. C.A.) at paragraph 40:

[35]        As Smart, J. did at paragraph 22, I also cite from paragraph 57 of that decision:

[36]        Perhaps as Smart, J. observed at paragraph 29 of his decision:

[37]        Smart, J. also said at paragraph 36:

[38]        This, though, does not require that the Defence lay out precisely what its evidence will be.  The Crown is entitled to notice of an application.  In the case of a constitutional question, the nature and extent of that notice is outlined in the Constitutional Question Act. 

[39]        Mr. Buckley argued that the Defence should not be prevented from calling a defence just because it has been tried before, and failed.  That argument does not resonate where the issue is the constitutional validity of legislation that stands independently of the facts at trial, if that precise question has already been determined by a binding superior court.  However, if the question has been answered outside the jurisdiction of the court or by a court that is not binding upon the judge, then the question remains a live one to be challenged by an accused if he or she chooses to do so.

[40]        The cases have established the importance of providing a factual foundation for resolving these questions.  To dispense with that foundation in any sort of cursory fashion would be improper.  I draw my authority from MacKay v. Manitoba 1989 CanLII 26 (SCC), [1989] S.C.J. No. 88 at paragraph 9:

[41]        The court has inherent jurisdiction to control its process and should exercise that jurisdiction on a section 52 application in a way that does not fetter the right of an accused person to challenge the constitutional validity of legislation.  The court should be able to determine whether a notice pursuant to the Constitutional Question Act complies with its requirements.  Such an assessment can be based upon submissions of counsel and a review of the notice itself.  This is a threshold hearing but something different from a Vukelich hearing.  The court must be very careful not to embark on an assessment of the substantive content of that Notice.  That must be reserved for the hearing itself. 

[42]        I conclude that a section 52 application is a separate hearing, and not only or always a voir dire.  It seems that the procedure will be dependent on the facts and circumstances of each of the cases.  It can be a pre-trial application if the evidence to be relied upon for the context is entirely legislative history.  It can be heard in a voir dire if the facts are linked to the elements of the charge and therefore are properly rolled into the trial itself once the hearing is concluded.  It can be heard in the context of a bifurcated hearing at the conclusion of the Crown case but within the Defence case.  It can be led simply as evidence in the Defence case. 

[43]        By the very nature of Mr. Jenkins’ insufficient evidence motion, Mr. Anderson’s evidence cannot be called until Mr. Jenkins’ application is resolved.  Therefore the evidence called in Mr. Anderson`s section 52 application, in which Mr. Jenkins joins, cannot be automatically rolled into the trial proper unless and until the insufficient evidence motion is heard. 

[44]        Furthermore, the remedy under the section 52 application is an entirely distinct remedy from an insufficient evidence motion.  If the Defence are successful on that application, the charges may well be dismissed.  However, that is not necessarily the outcome of every section 52 application and the Defence will have to determine whether they wish to proceed with calling evidence in the defence case if the application is unsuccessful.

[45]        In addition, if evidence is taken on the application as a bifurcated hearing, it is open to the Defence to call that evidence again in its defence, should it elect to do so.  At the close of the Crown`s case, Mr. Buckley indicated that he would not be calling any evidence on the trial proper, only in the application.  Mr. Kaiser, on behalf of Mr. Jenkins, brought an insufficient evidence motion which has been deferred to the conclusion of these constitutional applications.  It goes without saying that the procedural requirements of each of the accused differ.  For Mr. Kaiser to bring his insufficient evidence motion, he cannot call evidence on the defence.  For Mr. Buckley to advance the defence of necessity in the event that the constitutional challenge fails, he will have to call evidence in the defence. 

[46]        Without compromising the rights of each accused to a fair trial, the constitutional question must proceed as a bifurcated hearing.  Mr. Kaiser will have the opportunity to revisit his insufficient evidence motion in the event that the constitutional challenge is not successful.  This will have to be done before any evidence is called in Mr. Anderson`s defence.  Should it be necessary to proceed with Mr. Anderson`s defence, Mr. Buckley will have an opportunity to call that evidence and the Crown will have an opportunity to apply to re-open its case or to call rebuttal evidence as it sees fit. 

[47]        Unless the Crown and Mr. Anderson wish to have this evidence heard all over again, they should be seeking to have the evidence called in the application rolled into the Defence case, but only after Mr. Kaiser`s insufficient evidence motion has been heard and determined.  Any and all of these procedures will have to follow my ruling on the section 52 application.  This is purely a matter of setting the order I will hear the applications.

[48]        I am also satisfied that the court, despite the absence of any such procedure contained in the Constitutional Question Act, has inherent jurisdiction to control the process to ensure it is not embarking upon a question which has already been asked and answered by a court whose authority is binding upon the judge addressing the question.  Because the accused has an unfettered right to challenge the constitutionality of a law pursuant to which he or she may be convicted, the court must embark very cautiously upon that inquiry.  While the Crown is entitled to certain particulars identified in the Constitutional Question Act, the court must be careful not to weigh those particulars on the threshold hearing as it would weigh evidence on the hearing itself.  The inquiry should be what is the question to be asked?  Has it been asked and answered before?  Is the outcome binding upon the court?

[49]        I am satisfied that I have sufficient information from Crown and Defence to now determine the threshold questions I have identified.

[50]        I was provided with the following cases:  R. v. Parker 2000 CanLII 5762 (ONCA); Hitzig v. Canada, 2003 CanLII 30796 (Ont C.A.); Sfetkopoulos v. Canada, 2008 S.C. 33 (CanLII) and the appeal from that decision at 2008 S.C.A. 328 (CanLII); R. v. Beren and Swallow, 2009 BCSC 429 (CanLII), 2009 B.C.S.C. 429; R. v. LeClair, 2010 NBPC 37 (CanLII), 2010 N.B.P.C. 37 (CanLII); R v. Smith, 2012 BCSC 544 (CanLII), 2012 B.C.S.C. 544; R. v. Voss, 2013 ABCA 38 (CanLII), 2013 A.B.C.A. 38; R. v. Mernagh, 2013 Ont. C.A. 67; and R. v. Kapp, 2006 BCCA 277 (CanLII), 2006 B.C.C.A. 277 and the appeal from it at 2008 SECTIONC.C. 41.

[51]        Parker is a decision which is not binding upon me but is a compelling authority.  I refer to Beren and Swallow paragraph 13 which I quote from later in this judgment on that point.  Mr. Parker applied under section 7 to be able to cultivate and possess marijuana for medical need.  Mr. Parker led scientific and other evidence at trial to demonstrate the therapeutic value of marijuana for treating a number of serious conditions including his own of epilepsy.  The Crown also led evidence at trial to show that Mr. Parker did not need marijuana to control his seizures.  The judge read into the legislation an exemption for persons possessing or cultivating marijuana for their personal, medically approved use.  The Crown appealed and argued that Mr. Parker could have applied for an exemption under section 56 of the Controlled Drugs and Substances Act.  The court concluded that forcing Mr. Parker to choose between his health and imprisonment violated his right to liberty and security of the person.   The Court of Appeal declared the prohibition on possession of marijuana in the Controlled Drugs and Substances Act to be of no force and effect.  Parliament was then given a year to amend the legislation.  Mr. Parker was given an interim personal exemption.

[52]        The Crown argued that in response to the constitutional infirmities found by the Ontario Court of Appeal, the federal government introduced the Medical Marijuana Access Regulations, SOR/2001-227 (MMAR).  These regulations set out a regime whereby a person who met the qualifying criteria could apply for an Authorization to Possess (ATP) or a Personal-Use Production Licence (PPL) and a Designated-Person Production Licence (DPL).   These regulations were challenged in the Hitzig decision.  The applicants sought a declaration that the MMAR were unconstitutional and for a declaration that the prohibition against possession of marijuana in section 4 of the CDSA was of no force and effect.  Two other applications were heard at the same time, one being from Mr. Parker of the 2000 decision.  The other was brought by Messrs. Turmel and Paquette.  In the Parker decision, the Ontario Court of Appeal confirmed that the offence of possession of marijuana was of no force and effect on the date of the charge because, as of that date, there was no constitutionally valid medical exemption to the marijuana prohibition.  In Turmel, the court rejected the appellant`s argument that its decision in the 2000 Parker case had the effect of removing marijuana to the from the Controlled Drugs and Substances Act.  The offence of possession of marijuana for the purpose of trafficking continued to exist. 

[53]        In Hitzig, the court struck down various provisions prohibiting ATP holders from compensating DPL holders; preventing DPL holders from growing marijuana for more than one ATP holder; prohibiting DPL holders producing marijuana in common with more than two other DPL holders and the provision requiring a second specialist endorsement. 

[54]        Once again, the government did not appeal the constitutional declarations but amended the MMARs.  Those amendments came into effect on December 3, 2003.  These were then further revised on June 7, 2005. 

[55]        These amendments were challenged in Sfetkopoulos.  In that case, the applicants had sought to designate a single corporation as their marijuana producer (DPL).  Health Canada refused the applications because they were contrary to section 41(b.1) limiting DPL holders to producing for only one ATP holder.  The issue before the court was whether the MMAR provisions governing access to a supply of dried marijuana or seeds for persons possessing an ATP were constitutionally justifiable.  The court found the section negatively affected the applicants’ liberty and security of the person by preventing them from choosing their own designated marijuana producer.  The Federal Court of Appeal dismissed the Crown’s appeal and the Supreme Court of Canada dismissed the Crown’s application for leave to appeal. 

[56]        In Sfetkopoulos, the court also dismissed the claim that the legislated response to the supply problem was inadequate.  The applicants argued that different strains of marijuana had different therapeutic effects depending on the medical condition of the user.  The court rejected that argument.  In doing so, the court observed that the subject required further research.  Sfetkopoulos was decided in 2008, some five years ago.  It remains to be seen whether the further research has now been done.  Certainly the assertions by Crown with respect to the purpose of the related legislation implies someone has done some kind of research.

[57]        What I cannot conclude on a threshold application and what must be properly assessed on the hearing itself is whether that void in the research has now been filled.  Regardless, the door has been left open by the courts to assess whether it has. 

[58]        In Beren and Swallow, Mr. Beren challenged the legislation on the basis that he was producing marijuana for medical and research purposes only.  The challenge was based on an access and supply issue.  Mr. Beren argued that the government’s supply was not practically accessible to most eligible users and that the restrictions on holders of licences to produce medical marijuana were arbitrary.  It was asserted by the applicants that physicians refused to act as gatekeepers to legal cannabis, presenting a bar to access.  The other aspects related to the bureaucratic regime which caused delays and disruptions to obtaining authorisations under the programme. 

[59]        With respect to the supply issue, it was the number of plants which may be grown by a holder of the PPL that came under attack.  The court summarized the challenge at paragraph 33 of that decision.  

[60]        In Beren and Swallow the court found a violation of Mr. Beren’s section 7 rights to liberty and security of the person because of the restrictions imposed on producing marijuana for persons who take marijuana for medical purposes.  Once again, the court found that section 41(b.1) and section 54.1 were contrary to section 7 of the Charter.  However, the court convicted Mr. Beren.  He was producing and trafficking marijuana for the purpose of supplying a compassion club which was selling the marijuana to its members.  Most of the members did not have ATPs. 

[61]        In LeClair, the Provincial Court of New Brunswick addressed the issue of the delays in applying for and renewing applications under the MMAR.  The court made a curious distinction between a prescription and a doctor’s “medical practitioner’s declaration”.  In my view, it is a distinction without a difference.  One cannot obtain a prescription without a doctor’s signature; one cannot obtain medical marijuana without the doctor’s signature.  Whether it is a declaration or a prescription is of little moment.  I say this not as a finding of fact generally but as a consideration of the rationale in that decision.  That question remains live.

[62]        The Crown submitted that the court in LeClair found no basis to deal with the challenge to section 32(d) and (3) or section 7(1) of the CDSA.  In fact, it is more correctly characterized to say no evidence was led on the issues arising from section 32(d) and (3) and so the court declined to consider them.  Mr. LeClair was not charged under section 7(1) of the CDSA and so it was not proper for the court to consider that section.

[63]        It would be dangerous to use LeClair as a proposition for the fact that delays in processing time have been resolved in any meaningful way.  What transpired in LeClair was that Health Canada had taken steps to address the issue of delay.  For those reasons, the court declined to conclude that the delays endured by the administrative and procedural structure were manifestly unfair.  Therefore, section 4(1) was valid legislation.  The balance of the case dealt with what the judge had to synthesize for Mr. LeClair’s argument as an officially induced error, which is not a Charter issue and is fact specific. 

[64]        The Smith decision is a “baked goods” case.  The accused was separating tetrahydrocannabinol (THC) and other cannabinoids from dried cannabis marijuana to make into cookies.  These were being distributed to members of the Cannabis Buyers Club of Canada.   The Club was a significant one with 3,700 to 4,000 members.  Only about 5% to 10% of those members held valid ATPs.  The question in that case was whether the life, liberty and security of the person was infringed because the MMAR’s limited possession of marijuana for medical purposes to the form of dried cannabis.  

[65]        Smith, J. found the restriction to dried marijuana infringed the right to choose the manner of ingestion.  He addressed the constitutional violation by reading out the word “dried”.      

[66]        In Voss, the applicants challenged the MMARs for failing to provide an exemption from criminal liability due to the delays in processing applications.  There were a number of significant problems with the case before the court in Voss.  The applicants argued that because some courts found constitutional flaws in the past, Parliament was obligated to re-enact the provisions of the Controlled Drugs and Substances Act in order to bring them back into force.  They argued that the Federal Interpretation Act provided that such a finding would have deemed those sections to be repealed.  The Court of Appeal found that argument without merit. 

[67]        The applicants also argued that if one aspect of the regulatory regime was constitutionally inadequate, the entire regime fails because the Charter requires a workable exemption.  There being no effective medical exemption, they argued the entire offence was unenforceable against them.  The Court of Appeal did not uphold that argument either.

[68]        Finally, the appellants argued that the CDSA impairs their constitutional rights because the process for applying for the medical exemption was plagued by delay and was inconvenient.  In that case, the court lacked any adequate evidentiary support for the complaints.  The appellants also never tried to use the regime and therefore were not entitled to challenge it.  That is clearly not the case before me.  

[69]        Mernagh, on the other hand, considered a constitutional challenge to sections 4 and 7 of the CDSA as well as the MMARs.  In that case, Mr. Mernagh had not been able to find a physician to sign the medical declaration he required in order to get a licence.  He alleged that the physicians had decided not to participate in the program and therefore it was not possible to get a declaration.  The court agreed at trial level.  The judge struck down the MMAR in its entirety and declared sections 4 and 7 of the CDSA to be of no force and effect.  The decision was overturned on appeal.  It is important to note that this challenge failed due to the lack of sufficiency of the record.  In other words, the evidence was not before the court.   This case cannot stand for the proposition that an argument based upon the unwillingness of physicians to prescribe marijuana has been resolved.  This was not a gatekeeper issue but one of physician principles.  Should the appropriate evidence be led that there is a conspiracy, practice or trend amongst physicians to decline applications for medical marijuana use, no court is foreclosed by reason of this decision from considering that challenge. 

[70]        The Kapp decision was offered for the proposition that a Vukelich hearing ought to be conducted before embarking upon a consideration of the merits of the Charter or challenge.  It is important to note that Kapp was not a challenge of the constitutionality of the law disobeyed.  It was a challenge about a breach of equality rights under section 15(1) of the Charter because a fishery closure was imposed on commercial fishers who are not aboriginal, yet communal fishing licences were issued to three First Nations bands.  There was not a challenge to the constitutional validity of the laws that imposed the closure.  As a result, the Court of Appeal determined there was no point to considering the Charter issue unless resolution of the issue might lead to the end of the prosecution or to the exclusion of evidence.   At paragraph 95, Justice Low said:

[71]        Justice Low concluded that there was no section 15 breach.  The Supreme Court of Canada disagreed.  However, their decision did not address the issue of whether Crown ought to have made this application at the commencement of the proceedings.   Since the appellants were ultimately successful, it seems the parties proceeded as they ought to have.

[72]        The Crown concedes that a fulsome consideration of the issues of testing have not yet been placed before the court on such a challenge.  However, the Crown argues that this aspect of the challenge is moot because the MMAR will be repealed in April, 2014, by the Marihuana for Medical Purposes Regulations (MMPR), rendering any remedy under section 52 moot.  The Defence has filed an alternative section 24(1) Charter notice in anticipation of that legislative change.  The same considerations will have to be before the court for such a remedy.  However, I cannot see that this change in legislation, which is not before me, can possibly address the constitutional issue faced by Messrs. Anderson and Jenkins in November, 2011, short of the Crown inviting an acquittal.  Apart from what appears to be a recognition by the government that some part of the criticism forming the basis for the constitutional challenge is made out, the repeal of the MMAR and replacement with the MMPR does not seem to address the various issues before me.

[73]        I also note that a Statement of Claim has been filed in Federal Court by Neil Allard and under others File No. T-2030-13 seeking an injunction on the basis that the MMPR is unconstitutional.  So that legislation is subject to a challenge before it repeals the MMAR.  I also note that the Claim filed in those proceedings suggests the government has maintained the dried marijuana provision and that is once again under challenge. Like an indefatigable planeria, the parts cut off seem to be regenerating.

[74]        In short, none of the questions before me have been resolved. To the extent that they may be addressed by a change in legislation, it is of no assistance to Messrs. Anderson and Jenkins unless the Crown is inviting an acquittal or a judicial stay.  Regardless, that legislation now appears to be under its own challenge as counsel for the Defence expected. 

[75]        The Crown argued that even if the Defence were successful on this challenge, a judicial stay would not be a remedy available to them.  That is for me to decide after a careful consideration of the facts and the appropriate remedy if the Defence are successful.  I certainly cannot determine on a threshold hearing whether such a remedy is available.

[76]        The Notice of Intent to question constitutional validity is a 17 page document which sets out the date, time and place of the challenge; it states the law in question, being sections 5(2), 11 and 13(2) of the Controlled Drugs and Substances Act, and sections 489(1) and 490 of the Criminal Code.  It states the day on which the challenge or application is to be argued and it gives more than adequate particulars to show the point to be argued. 

[77]        In fact, the Notice is quite fulsome and is supplemented by a substantial package titled “Anticipated Witnesses for Section 52 Application”.  This list of witnesses is separated in categories between compassion club members and other witnesses.  The witnesses are identified by name.  The Defendants have also provided, with respect to both the lay witnesses and the expert witnesses, the areas and issues upon which the witnesses are expected to testify.  This Notice and this information are adequate for the Crown to prepare its case.  Defence has conceded that there are recent issues arising with respect to their expert evidence.  They expect to provide proper notice of what those experts will testify, their qualifications and their opinions.  Pretrial orders are now in place to ensure this occurs.

[78]        The Crown is concerned about the number of days it has experienced on these challenges previously.  This can be resolved through some pre-trial focusing of the evidence to be called.  For instance, the Defendants claim that THC content in marijuana should be properly measured and disclosed to prevent overuse or underuse.  The Crown argued on this hearing that there was no evidence before the court that overuse or underuse of marijuana can cause harm.  However, in R. v. Smith, the Crown led evidence before the Supreme Court of British Columbia, which is set out at paragraph 60 of those Reasons:

[79]        It cannot be both ways.  The Crown is not a lawyer hired by different clients to present different cases with opposing objectives.  The Crown represents the same party who is taking an inconsistent position. 

[80]        It might be more constructive if counsel reviewed the cases and identified those findings of fact not in dispute so that this evidence can be led in a non-adversarial contextual way without glossing over necessary evidence. 

[81]        Similarly, bearing in mind the comments made by Justice Koenigsberg in Beren and Swallow at paragraph 13, counsel should examine the compelling but non-binding decisions outside of this jurisdiction for findings of fact which should also remove unnecessary time cross-examining on facts that are not properly in dispute:

[82]        If the courts in various cases have made findings of fact which are not in dispute and which are helpful to setting the factual foundation of this application, then much time leading evidence and cross examining on those facts may well be saved.  I cannot compel counsel to make such admissions, but I do not expect counsel to complain about the length of the hearing if they do not do so.

[83]        On the other hand, counsel must be cautioned about what they expect this court to find by way of judicial notice.  Chief Justice McLachlin summarized the concept of judicial notice in R. v. Find, 2001, section C. 32  at paragraph 48:

[84]        I do not expect counsel to ask me to take judicial notice of facts that do not meet the requirements in R. v. Find.  For instance, in referring to the risk/benefit exercise undertaken through the Food and Drug Legislation, the Crown stated that the regulatory process was essential to stop drugs that lacked adequate efficacy or caused unnecessary harm to the population from being marketed.  Mr. Eccles referred to thalidomide as evidence of this proposition.  I cannot take judicial notice that the Food and Drug Legislation has undertaken any such exercise.  As an ordinary reasonable person in my personal life, I am well aware that thalidomide in fact is a safe drug and is being used for the treatment of certain illnesses to this day, although it is no longer used for pregnant women.  I cannot take judicial notice of that knowledge, such as it is. I have no idea if thalidomide was regulated or regulated poorly when it was prescribed for morning sickness.  I cannot take judicial notice of any of that either.  Similarly, I cannot take judicial notice of the fact that some strains of marijuana are stronger or weaker than others; that there are lengthy waits for licenses; or that doctors do or do not recognize the efficacy of medical marijuana treatment, to name several areas of bold pronouncement.   

[85]        I am also concerned that counsel not assume because Food and Drug Legislation has not approved marijuana that I can draw any conclusion from that fact.  It implies there has been research and testing but there is no evidence of that. In addressing the war between the experts in R. v. Smith, Justice Johnson made this observation at paragraph 39:

[86]        I also caution counsel against making unsubstantiated claims about public attitude toward the plant and its products.  While the outright legalization of marijuana in some states and the limited legalization of marijuana in other states in the United States of America may lead to a shifting of public attitudes in Canada, I cannot take judicial notice of that either.

[87]        Counsel have been given their pre-trial direction now.  The section 52 application will be scheduled.  I will not order that the insufficient evidence motion or the balance of the trial continuation be scheduled at this time.