R. v. Woolsey, 2018 BCPC 75 (CanLII)
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2018 BCPC 75 |
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Date |
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File No: |
84714 |
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Registry: |
Abbotsford |
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PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
ROBERT JAMES WOOLSEY
RULING ON APPLICATION
OF THE
HONOURABLE JUDGE K. D. SKILNICK
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O. L. Bick and C. Fast |
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Appearing in person: |
R. J. Woolsey |
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Abbotsford, B.C. |
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Dates of Hearing: |
April 5, 2018 |
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Date of Judgment: |
April 5, 2018 |
Introduction
[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] On December 12, 2017, Mr. Woolsey brought an application to quash the information pursuant to section 601 of the Criminal Code on the grounds that the section 5 of the CDSA was not a valid offence on the alleged offence dates. That application was dismissed on January 15, 2018, with written reasons provided which are reported at 2018 BCPC 4.
[3] We are now at the point in the case where I am satisfied that the Crown has proven the elements of each offence beyond a reasonable doubt, but before any convictions can be entered, an application brought by Mr. Woolsey must first be addressed. Mr. Woolsey has filed a Notice of Application and Constitutional Challenge, pursuant to section 8(2)(a) of the Constitutional Question Act. The remedies requested include a judicial stay of proceedings, and a declaration that section 5 and other sections of the CDSA are of no force and effect because they are unconstitutional.
[4] Before embarking on this phase of the trial of this matter, the Crown has brought an application to dismiss the Constitutional Challenge because it has no chance of success and because it seeks a remedy which this court, the Provincial Court of British Columbia, has no jurisdiction to grant. If the Crown is successful in its application, this would effectively end the trial and result in Mr. Woolsey’s conviction for the offences that he is charged with. If the Crown is unsuccessful, the trial would continue, and Mr. Woolsey would be permitted to call evidence in support of his application.
The Basis of the Crown’s Application
[5] The Crown cites as authority for its application, a number of decisions of courts which are binding on this court. (In the earlier decision in this matter, I reviewed the law concerning which decisions of Superior Courts are binding on this court. I will not restate that law, but I will refer the parties to paragraphs [9] to [12] of that decision). The Crown has directed my attention to the Supreme Court of Canada’s decision in R. v. Cody 2017 SCC 31 (CanLII), [2017] 1 S.C.R. 659; 2017 SCC 31; as authority for the proposition that a judge in a trial such as this, must exercise a gatekeeper function and determine, before embarking on a lengthy application of this nature, whether or not the application has a reasonable prospect of success. Speaking with one voice, the seven members of the Court gave these directions to trial judges:
[37] We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves
“implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.” [para. 139]
In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay.
[38] In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion. (Emphasis added).
[6] In R. v. Frederickson 2018 BCCA 2, the British Columbia Court of Appeal set out the threshold that must be met before a hearing of an application of the nature sought by Mr. Woolsey should be granted. Fisher J.A. wrote:
[26] There is no absolute right to a voir dire. The purpose of a Vukelich hearing is to filter out proposed pre-trial applications where the remedy sought could not reasonably be granted, as shown by submissions of counsel, assuming the allegations could be proven: M.B. at para. 45. Whether an appropriate foundation can be laid in any given case is contextual. Generally, to justify a voir dire alleging a breach of the Charter, the applicant must be able to demonstrate a reasonable basis on which the court could find a breach: R. v. McDonald, 2013 BCSC 314 at para. 18; R. v. Malik, 2002 BCSC 484 at para. (Emphasis added).
[7] In this case, the Crown alleges that the application brought by Mr. Woolsey has no reasonable prospect of success, at least not in the Provincial Court. The Crown asserts that this is so for two reasons. Firstly, this court does not have the power to strike down section 7 of the CDSA or any sections of that Act. Authority for this proposition comes once again from the Supreme Court of Canada, in R. v. Lloyd 2016 SCC 13. There, Chief Justice McLachlin wrote:
[15] The law on this matter is clear. Provincial Court Judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.
[8] The second reason why the Crown alleges that this application has no prospect of success is because the validity of these sections has already been decided by decisions of Superior Courts of this province which are binding on me. A number of these decisions were reviewed in the reasons for judgement in the earlier application. Most recently, the court in Allard v. Canada [2016] F.C.R. 303 has held that although the Marihuana for Medical Purposes Regulations (MMPR) violated the applicant’s rights under section 7 of the Charter, this did not invalidate any of the sections of the CDSA which made it an offence to possess, grow or distribute marijuana.
Mr. Woolsey’s Response
[9] In his Notice of Application and Constitutional Challenge, Mr. Woolsey has set out twenty-one grounds on which he seeks to prove that the Marihuana Medical Access Regulations (MMAR), the MMPR (which were considered in the Allard decision) and the Access to Cannabis for Medical Purposes Regulations (ACMPR) are all invalid. For the purposes of considering the Crown’s application, I will presume that the evidence intended to be called by Mr. Woolsey would prove each of the twenty-one points set out in his Notice.
[10] Mr. Woolsey has spoken passionately about inequities and unfairness in the present regime under which persons may access medical cannabis. These include the near non-existence of doctors who are willing to prescribe medicinal cannabis, the seemingly ludicrous requirement for persons with terminal illness to reapply periodically for renewal of their license to possess medical cannabis, a bureaucratic system of red tape for persons to claim medicinal cannabis under medical insurance, the lengthy process for persons with terminal and life-threatening illnesses to apply for a license to possess medicinal cannabis, inadequate personal limits, and a host of other flaws.
[11] Mr. Woolsey also asserts that Allard was wrongly decided because of the failure of that Court to consider section 43 of the Canada Evidence Act. That section talks about the repeal of a statute by Parliament, as opposed to a statute being struck down by a court of competent jurisdiction.
[12] Crown Counsel argues in response that while it is all well and good to level criticisms about the inadequacies of the current regime for the provision of medicinal cannabis, this is irrelevant to the facts of this case, which involve sales of cannabis to undercover police officers who did not purport to have either a license to possess or a need for medicinal cannabis. While the evidence of the elements of each offence has been proven beyond a reasonable doubt, I can also say that I am satisfied beyond a reasonable doubt of Mr. Woolsey’s sincerity in wanting to challenge the validity of the relevant sections of the CDSA, motivated by a genuine frustration over what he and many others perceive as a flawed system of providing medicinal cannabis to persons who require it.
[13] In response to the Crown’s submissions, Mr. Woolsey says that while the regulations are invalid, the prohibition against possession, cultivation or transfer should also be invalid, and that should apply to everyone, including him in the circumstances of this case.
Analysis
[14] An application of this nature as brought by the Crown is troubling because it appears to deny Mr. Woolsey his right to be heard, one of the fundamental components of natural justice. In this case, it is more accurate to say that it is a denial of the ability to be fully heard. Mr. Woolsey has capably articulated his reasons why he submits that the relevant sections of the CDSA are unconstitutional and has also set out in detail the evidence he wishes to call in support of those submissions. For the purpose of addressing this application, it is presumed that Mr. Woolsey can prove what he says he will prove if the application to strike the statute is allowed to proceed. In that sense, he has not denied his right to be heard, he has been denied the right to be heard at greater length. The issue is whether or not what he can prove is enough to justify a full hearing of that issue?
[15] The Supreme Court of Canada in R. v. Cody calls upon this court to close the gate to applications that consume a significant amount of court time, but have little prospect of success. That Court says that trial judges should do this as a remedy for the strain on the resource of court time caused by that Court’s decision in R. v. Jordan 2016 SCC 27; [2016] 1 S.C.R. 631, which has sped up the conveyer belt that brings criminal cases to trial. Anecdotally, I can advise that my previous ten sitting days as a judge have been spent hearing a child protection matter involving children who have been in foster care for over three years. These are the types of cases that are being elbowed out of the cue as a consequence of the Supreme Court’s decision in Jordan. There is definitely good reason for trial judges in criminal courts to act as gatekeepers and summarily dismiss applications which have no likelihood of success, so that available time can be given to those cases needing to be heard which do not enjoy the priority demanded by Jordan.
[16] One of the other concerns about granting the Crown’s application is the question of how Mr. Woolsey can have his evidence heard in order to create a record for appellate purposes. It has previously been acknowledged by everyone involved in this case that this Court is not the last stop on the judicial bus route that this case will travel down. If convicted, Mr. Woolsey will appeal, and if acquitted, the Crown will do likewise. The principles that underlie this case call for a decision by a court whose opinion will be more binding.
[17] There are a number of possible answers to this question. If an appellate court determines that Mr. Woolsey was wrongly denied his right to have this application for a Constitutional Challenge heard, that court may send the matter back to this court for a rehearing. By that time, I suspect that all of the alarm bells regarding Jordan concerns would be loudly clanging and the Crown would be confronted with the issue of unreasonable delay. Alternatively, the appellate court may permit the evidence to be heard as fresh evidence as permitted under section 683 of the Criminal Code.
[18] The law directs that I grant the application by the Crown if I am satisfied that the Application for a Constitutional Challenge does not have a reasonable prospect of success. I am satisfied that the Crown should succeed in its application. I reach this conclusion for three reasons:
1. The Supreme Court of Canada has clearly stated that I do not have the power to grant the relief requested in the Notice of Application for Constitutional Relief. More specifically, I do not have the power to strike down or suspend the operation of those sections of the CDSA which I am being asked to strike down.
2. Assuming I am wrong about the previous conclusion, I am bound to follow those decisions of Superior Courts of this Province and of the Supreme Court of Canada, which have upheld those sections and convicted individuals for violating them, notwithstanding the existence of invalid or unconstitutional regulations.
3. The use of additional court time to hear this application under these circumstances is not justified, especially at the expense of other matters awaiting trial. It is in everyone’s best interest, especially the interests of those whose cause Mr. Woolsey seeks to advance, that these issues be heard and decided by a Superior Court having the authority to grant the relief that Mr. Woolsey seeks, if such relief is proven to be justified as Mr. Woolsey clearly asserts it to be. It makes no sense to spend further time arguing the issue if it is now clear that at the end of the day such relief will not be found in this court.
[19] For the foregoing reasons, the Crown’s application to dismiss Mr. Woolsey’s Constitutional Challenge is granted.
Dated at the City of Abbotsford, in the Province of British Columbia, this 5th day of April, 2018.
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(The Honourable Judge K. D. Skilnick)