IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Robert John Woolsey is charged with five counts of trafficking in marihuana contrary to section 5(1) of the Controlled Drugs and Substances Act (the “CDSA”). The offences are alleged to have occurred at or near the community of Deroche (which is within the District of Mission), British Columbia on four separate days: September 24, September 25, November 19 and November 21, all in 2015.

[2]           The facts of these alleged offences are not in dispute. At the times material to these charges, Mr. Woolsey operated a branch of the BC Pain Society, known as a Compassion Club, which sold marihuana and derivative products to those possessing the proper documentation to possess the substance pursuant to a valid medical authorization. The Crown alleges that on the alleged offence dates, Mr. Woolsey sold marihuana and other derivative products to undercover police officers who did not produce proper documentation allowing them to possess what was being sold to them.

[3]           Mr. Woolsey takes the position that what he was doing was not against the law. At the time that these offences were alleged to have occurred, a legal framework was in place, known as the Marihuana for Medical Purposes Regulations (the MMPR). On February 24, 2016, a decision of the Federal Court of Canada, made in Vancouver, BC, declared that the MMPR were invalid because they contravened section 7 of the Canadian Charter of Rights and Freedoms. The reasons for judgement in that case, Allard v. Canada, are reported at 2016 FC 236 (CanLII), [2016] 3 F.C.R. 303. The court’s declaration was suspended for six months in order to allow the Government of Canada to respond with new regulations.

[4]           In an earlier case, R. v. Parker, (2000) 2000 CanLII 5762 (ON CA), 49 O.R. (3d) 481, the Ontario Court of Appeal had declared that the prohibition against possession of marihuana under section 4 of the CDSA was unconstitutional when there was no constitutionally valid scheme in place that allowed persons to possess marihuana for valid medical purposes. Mr. Woolsey says that this was the correct course of action to take and says that this reasoning should be applied to the charges brought against him. Since the MMPR were invalid at the time of his alleged offences, he argues that it should follow that section 4 of the CDSA, which made it an offence to possess marihuana, was once again unconstitutional. This means that what he was doing was not against the law at the time he was doing it. Therefore, the information charging him with the offences is defective because it does not disclose a valid offence. At this stage of the proceedings, he asks for an order quashing the information pursuant to section 601 of the Criminal Code.

[5]           In response, the Crown says that just because the MMPR were found to be invalid, it does not automatically follow that the sections of the CDSA making it an offence to possess, grow or sell marihuana are also invalid. The Crown says firstly that the law is otherwise, and if the Federal Court had intended to invalidate the relevant sections of the CDSA, it would have ordered so. Since it did not do so, those sections remain in force and on the alleged offence dates, it was against the law for Mr. Woolsey to do what he did. Secondly, the Crown says that the same argument that Mr. Woolsey is making has been made before and has been rejected by Superior Courts of this province, whose decisions are binding on this court.

[6]           At the conclusion of argument on this point, I reserved decision and informed the parties that I would provide written reasons addressing Mr. Woolsey’s argument. If the Crown is correct that the issue is decided by case law that is binding on me, the simpler course of action might be simply to dismiss the application on that basis alone. While conventional wisdom might suggest that on this matter the less said the better, I have decided to confront the arguments in more detail for two reasons: (1) Although he is self-represented, Mr. Woolsey has presented his case in professional manner, carefully considered and respectful of the process of this court. It seems intellectually dishonest and inconsiderate to simply say “I have no choice, I have to follow the decisions of the Superior Courts” without considering the merits of Mr. Woolsey’s arguments; and (2) No matter the outcome of this matter before this court, it is expected that the unsuccessful party will seek appellate review of the my decision, and it would be of some benefit to have as complete a record as possible.

[7]           Mr. Woolsey has brought an application under section 601(1) of the Criminal Code for an order quashing the information in this matter. This section reads as follows:

[8]           The term “indictment” is defined to include an information, which is the charging document when, as in this case, a person is charged with one or more offences punishable on summary conviction. Mr. Woolsey did not bring this application until after the taking of evidence, but the Crown has not pressed this objection, and I have allowed Mr. Woolsey to make this application after entry of his plea, mindful of his status as a self-represented litigant, and because the determination of this issue may help expedite the matter. I also note that Mr. Woolsey did not actually enter a plea, but rather he declared that he was standing mute. It has been held in R. v. Wilson (1986) 1986 CanLII 4632 (MB KB), 26 C.C.C. (3d) 8 (Manitoba Q.B.) that where this occurs, an accused has not actually entered a plea and does not require the leave of the court to bring this application. Though not binding on me, I find the reasoning in that case to be persuasive.

[9]           There is a legal doctrine known as stare decisis (a Latin phrase which means “to stand by that which is decided”). This doctrine requires a court to follow its own previous decisions or those of higher courts. The rationale for stare decisis was explained well by the late Mr. Justice J. O. Wilson in his text “A Book for Judges” at pages 92-93, when he gave as one of the reasons for it “the desirability of uniformity in the application of the law so that B shall not on Tuesday lose a lawsuit based on the same facts and principles that have enabled A to win a lawsuit on Monday.”

[10]        As a general rule, trial courts are bound not only by decisions of the same court, but also by decisions of courts that have the power to reverse that court’s decision on appeal. A court in one province is not bound by decisions of courts of other provinces or territories, even those at an appellate level, but the court may find the reasoning of the court from another province persuasive. To summarize how this applies to the Provincial Court of British Columbia:

[11]        In R. v. Vu, Donald J.A. summarizes the law pertaining to the Provincial Court following decisions of other provinces as follows:

[12]        Where there are conflicting decisions of courts of coordinate jurisdiction, the more recent decision is to be preferred, if it is reached after full consideration of the earlier decision. Bingo City Games Inc. v. British Columbia Lottery Corp. [2004] BCJ No. 2397 (B.C.S.C.); Re. Harrison [1983] BCJ No. 1787 (B.C.S.C.); Aho v. Kelly [1998] BCJ No. 1400 (B.C.S.C.)

[13]        Mr. Woolsey argues that at the time he is alleged to have committed the offences he is charged with, it was not against the law to possess marihuana and therefore selling the substance was also not illegal. He argues that section 4 of the CDSA makes it an offence to possess the substance “except as authorized under the regulations.” At the time of his alleged offences, regulations existed that were later held to be invalid because they were unconstitutional. Since there were no valid regulations in place, the entire section is invalid. This is essentially what was held in a decision of the Ontario Court of Appeal in R. v. Parker (2000) 2000 CanLII 5762 (ON CA), 146 C.C.C. (3d) 193.

[14]        In Parker the accused was charged with cultivating marijuana under the now-repealed Narcotic Control Act, R.S.C. 1985, chapter N-1. He was also charged with possession of marihuana under the CDSA. Parker was an epileptic who experienced frequent, severe and potentially life-threatening seizures. He found that the seizures were best controlled by the use of marihuana. He could not locate a lawful source of marihuana and decided to grow his own. At his trial, the trial judge found that Parker required marihuana to control his epilepsy and that the prohibition against marihuana infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms. In order to protect the accused and others like him who needed to use marihuana for medicinal purposes, the trial judge read into the legislation an exemption for persons possessing or cultivating marihuana for their "personal medically approved use". The Crown appealed this decision.

[15]        The Ontario Court of Appeal held that Parker's liberty interest under section 7 of the Charter was affected by the marihuana prohibition. It held that to prevent Parker from accessing a treatment by threat of criminal sanction constituted a deprivation of his security of the person and infringed his security by interfering with his physical and psychological integrity. Section 7 of the Charter protected his right to make choices concerning his own body and control over his physical and psychological integrity free from interference by criminal prohibition.

[16]        The Ontario court did not limit its ruling to Mr. Parker’s individual situation however. It went on to hold that a blanket prohibition on possession was unfair and that the absence of a clear legal standard contributed to a violation of fundamental justice. The court stated that of all of the drugs with potential therapeutic effects, marihuana stood out because it was subject to a complete prohibition, making it impossible for a physician to prescribe it and for a patient to legally possess it pursuant to a prescription.

[17]        The court acknowledged that the state has an interest in protecting against the harmful effects of marihuana. It found that health effects to humans include bronchial pulmonary harm; psychomotor impairment from marihuana use leading to a risk of automobile accidents where there was no simple screening device available for detection; possible precipitation of relapse in persons with schizophrenia; possible negative effects on the immune system; possible long- term cognitive effects in children whose mothers used marihuana while pregnant; possible long-term cognitive effects in long-term users; and some evidence that some heavy users may develop a dependency. Despite acknowledging that the state had an interest in addressing these concerns, the court held that a blanket prohibition on possession and cultivation of marihuana, without an exception for medical use, does little or nothing to enhance the state interest, if it deprives those persons of the drug who require it to maintain their health.

[18]        The Ontario Court said that under s. 3 of the Narcotic Control Act and s. 4 of the CDSA, it is an offence to have possession of any narcotic or scheduled substance respectively, including marihuana, except as authorized by the Act or regulations. While the regulations theoretically contemplate that a physician could prescribe marijuana, the evidence was that since there was no legal source for marihuana, no pharmacist would fill the prescription and the government would not look favourably upon a physician who wrote such a prescription. The defence in the Narcotic Control Act and the CDSA was practically unavailable to persons who require marihuana for conditions threatening their life or health. The Ontario Court of Appeal held that this constitutes a violation of the principles of fundamental justice. Parliament has created a defence to the possession and cultivation offences if the person can comply with the regulations. Those regulations, for example, permitted a person to legally possess the drug under prescription from a physician. But the court held that this defence or exemption was illusory and that this is not consistent with the principles of fundamental justice.

[19]        Section 56 of the CDSA provides a source for the legal possession of marihuana. That section provides that the Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance from the application of the Act if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Section 56 gives the Minister an absolute discretion based on the Minister's opinion whether an exemption is necessary for a medical purpose. The Ontario Court considered this section, but found it to be an inadequate legislated standard for medical necessity. It held that the vesting of an unfettered discretion in the Minister did not accord with the principles of fundamental justice.

[20]        The Ontario Court of Appeal upheld the trial judge's decision to stay the charges against Mr. Parker, but said that his remedy of reading a medical use exemption into the legislation was inappropriate, holding that it was up to Parliament to take action. Until that occurred, the court held that the appropriate remedy was to declare the prohibition on the possession of marihuana in the CDSA to be of no force or effect. This declaration of invalidity would be in force for one year. The accused, however, could not be deprived of his rights during this year.

[21]        Mr. Woolsey argues that the same result should follow in his case. Since there were no valid regulations in force at the time of his alleged offences which allowed for a medical exemption to the prohibition of marihuana, it should follow that section 4 of the CDSA was of no force and effect at the time of his alleged offences, the same as it was for Mr. Parker.

[22]        Three years later, in R. v. Hitzig et. al. (2003) 2003 CanLII 30796 (ON CA), 177 C.C.C. (3d) 449, the Ontario Court of Appeal revisited this issue. In Parker, the court held that the criminal prohibition against the possession of marihuana in s. 4 of the CDSA was of no force or effect, where there was no constitutionally acceptable medical exemption from that prohibition. The Government of Canada had responded to the Parker decision with the Marihuana Medical Access Regulations, S.O.R./2001-227 (June 14, 2001) (“MMAR”).  Those regulations permitted the possession, and in some cases, the production of marihuana by those who met the medical criteria established in the MMAR.  In Hitzig the Ontario Court of Appeal was considering whether a decision of a lower court was in error in holding that the scheme set out in the MMAR was not a constitutionally acceptable medical exemption to the criminal prohibition against possession of marihuana.

[23]        In Hitzig, the Ontario Court of Appeal noted that it was not deciding anything about the social or recreational use of marihuana. Its concern was for those with the medical need to use marihuana to treat symptoms of serious medical conditions.  The court concluded that for those people the MMAR as drafted by the Government failed to create a constitutionally acceptable medical exemption.

[24]        Unlike the court’s earlier decision in Parker however, the court in Hitzig sought to remedy the problem by declaring as invalid only five specific sections of the MMAR. It did not declare the possession prohibition in s. 4 of the CDSA to be unconstitutional, as requested by the accused. The court held that such a remedy would be overly broad. The court held that section 52(1) of the Constitution Act required the court to strike down any law that was inconsistent with the Constitution only to the extent of the inconsistency. The court in Hitzig said that “the remedy must be more specifically targeted to the constitutional shortcomings that we have identified in the MMAR” and that this did not require that the prohibition against possession of marihuana be rejected.

[25]        The Hitzig decision is significant because it is a later decision of the same court that decided Parker, but it is inconsistent with Parker. It is at odds with Parker about what the remedy should be for having unconstitutional regulations. Parker had held that this rendered the whole scheme of prohibition of possession of marihuana invalid, while Hitzig held that it did not. Hitzig was a later decision of the same court dealing with the same issue. The principles of stare decisis would suggest that Parker is no longer good law on the issue of an appropriate remedy for defective regulations because of the later decision by the same court in Hitzig.

[26]        Earlier in 2003, the Alberta Court of Appeal had heard an appeal in the case of R. v. Krieger 2003 ABCA 85, in which that court upheld the decision of the trial judge to strike down section 7(1) of the CDSA (which makes it an offence to produce marihuana). But the court in Krieger refused to strike down section 5 of the CDSA which makes it an offence to traffic in marihuana. The trial judge in Krieger had refused to strike down section 5 (the section that Mr. Woolsey is charged with). She wrote (at paragraph [54]) “I am satisfied that s. 5(2) is an important safeguard preventing unregulated distribution of powerful drugs.”

[27]        The argument raised in these cases has been abbreviated into the acronym “BENO” which stands for “bad exemption, no offence”. In other words, if there are no valid regulations which permit persons to possess marihuana for valid medical reasons, then no one should be convicted for possessing marihuana. The problem is that BENO is no longer good law in Canada, if it ever was. The Ontario Court of Appeal’s decision in Parker has been superseded by Hitzig, which held that this remedy was too broad. Hitzig held that the court should strike down any law that was inconsistent with the Constitution only to the extent of the inconsistency. The remedy of striking down legislation was to be used as a scalpel, not as an axe.

[28]        While the Alberta court in Krieger did not take the same approach, it applied BENO only to cultivation of marihuana. But it would not extend it to strike down trafficking in the substance.

[29]        A few months after publication of Hitzig, and after Krieger, the Supreme Court of Canada handed down its reasons for judgement in R. v. Malmo-Levine 2003 SCC 74 (CanLII), [2003] 3 SCR 571; 2003 SCC 74. This case confirmed that Parliament had the right to legislate on the distribution and possession of marihuana using the criminal law. The judgment made it clear that there is no free-standing constitutional right to use marihuana for recreational or non-medical purposes, and criminal sanctions may continue to be constitutionally applied to users, traffickers, and growers operating outside lawfully prescribed exemptions.

[30]        The law seemed to be settled until 2008 when reasons for judgement were handed down by the Federal Court of Canada in Sfetkopoulos v. Attorney General, 2008 FC 33. Once again a portion of the regulations allowing possession of marihuana by those with a valid medical permit was found to be unconstitutional. The court found fault with the 1:1 producer to consumer ratio contained in section 41 of the MMPR. The court also found that it was not reasonable for the government to require qualified medical users either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers.

[31]        This decision was upheld in the Federal Court of Appeal (2008 FCA 328) and leave to the Supreme Court of Canada was denied ([2008] S.C.C.A. No. 531). It did not declare the sections of the CDSA concerning possession, cultivation or distribution of marihuana to be unconstitutional or invalid. In response, the Government of Canada amended the regulations by setting a 1:2 producer to consumer ratio. (One producer could now provide marihuana to a maximum of two patients instead of one).

[32]        Two decisions of the British Columbia Supreme Court, decisions which this court is bound to follow, have rejected the BENO argument. In Kubby v. R. 2005 BCCA 640, the British Columbia Court of Appeal followed Hitzig and held that defects in the regulations did not operate so as to strike down section 4 of the CDSA. The court found the CDSA to be valid legislation.

[33]        In R. v. Beren and Swallow 2009 BCSC 429, Madam Justice Koenigsberg held that sections 41(b.1) and 54.1 of the MMAR contravened section 7 of the Charter. She rejected the argument that asked her to declare section 4 of the CDSA to be invalid and concluded at paragraph [136]:

[34]        One further decision of a British Columbia Superior Court, the BC Supreme Court decision in Poelzer v. R. 2009 BCSC 18, has also held that the presence of defects in the regulations does not mean that section 4 of the CDSA is invalid. Justice Cullen wrote at para. [29]:

[35]        The law in British Columbia appeared to be relatively settled on this subject for a time, until February 24, 2016, when Justice Phelan of the Federal Court of Canada released reasons for judgement in Allard v. Canada [2016] F.C.R. 303. Once again the court found fault with the MMPR. The court recognized that under the existing scheme, a person with a valid medical need for marihuana could not cultivate for oneself nor purchase from someone who was not a registered as a licensed producer. If a person could not access a licensed producer, the person had no access to their substance without breaking the law. Justice Phelan held that the MMPR regime infringed Mr. Allard’s Charter rights under section 7 and that such infringement was not justified.

[36]        Allard differed from many of the earlier decisions however, in which the Courts had struck out either certain provisions or certain words in certain provisions, but otherwise left the structure of the regulations in place. In Allard, the attack was on the structure of the new regulation. Justice Phelan held that it would not be feasible or effective simply to strike certain words or provisions. He wrote:

[37]        On August 24, 2016, the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 (ACMPR) replaced the MMPR.

[38]        In Allard, Justice Phelan was clear that he perceived the remedy of striking down the CDSA provisions which made it an offence to possess, grow or distribute marihuana as being too drastic a remedy. Despite the fact that Allard struck down the entirety of the MMPR, it was clear that it did not strike down any of the sections of the CDSA.

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

[40]        Mr. Woolsey argues that the courts in these cases did not go far enough in following the example set in Parker by declaring the possession sections of the CDSA to be unconstitutional and that they lacked the courage of conviction to do the right thing. If that is so, then I am bound by law to follow their lead. However I respectfully do not believe that the error was made by those courts. Rather it was the court in Parker that was mistaken. I believe that the correct analysis was that made in Hitzig; that declaring the sections of the CDSA invalid because of a fault in the regulations is too drastic of a remedy. It is, as the old adage goes, “throwing the baby out with the bath water.” The failure of regulations to meet the needs of those who validly require a controlled substance should not result in excusing possession or trafficking by those who don’t.

[41]        Mr. Woolsey’s application to quash the information is based on the proposition that what he was charged with doing was not against the law when he was alleged to have done it. A review of the law on this point satisfies me that it was in fact an offence to traffic in marihuana on the alleged offence dates in this case. Accordingly, the application to quash the information in this case must fail.