Crown Memorandum in Original Parker Appeal! JCT: When I realized that the Crown were going to have to argue that the Court of Appeal did Parliament's job, I also remembered that they had put together all the arguments why Parker's Judge Sheppard didn't have the power to ease up on the law which should be just as applicable to our judges who don't have the power to tighten up the law. So Judge Sheppard had changed the legislation to permit sick guys to be exempted from the prohibition and the Crown were arguing how judges don't have the power to change laws in their Facta and Memoranda. Remember how we discovered that it was the Crown who were lamenting that the prohibitions on cultivation and possession were rendered invalid by the Krieger decision. No one has admitted it after it happened though the Crown warned what it amounted to beforehand. No one expected someone to publish their private arguments, did they? Same here. Again, it has to apply to these judges so why not make use of the Crown's own words to fight them as they now have to contradict themselves. COURT OF APPEAL FOR ONTARIO BETWEEN HER MAJESTY THE QUEEN Appellant - and - TERRANCE PARKER Respondent ------------------ APPELLANT'S FACTUM ------------------ JCT: Keep in mind that this is the Crown talking. CR: PART I: STATEMENT OF THE CASE 1. The Appellant (hereinafter 'the Crown') appeals from the December 10 1997 decision of Provincial Judge Sheppard staying two charges against the Respondent (one count of possession of marihuana and one count of cultivation marihuana) on the basis that the provisions pursuant to which those charges were laid violated the Respondent's s.7 Charter rights. 2. The Respondent (hereinafter 'Parker') was charged pursuant to the Narcotic Control Act with cultivating marihuana and possession of marihuana for the purpose of trafficking as a result of the execution of a search warrant at his home by police on July 18 1996. In a separate incident on September 18 1997, the Respondent was charged with simple possession of marijuana pursuant to the Controlled Drugs and Substances Act. 3. Parker's principal argument at trial was that the provisions pursuant to which the possession and cultivation charges were laid violated his s.7 Charter rights, in that they prevented him from having access to marijuana for medical purposes (to treat his epilepsy). Parker also raised, but ultimately abandoned, arguments dealing with both the defence of necessity and issue estoppel. 4. On December 10, 1997, Provincial Judge Sheppard ruled that s.6(1) of the Narcotic Control Act and s.4(1) of the Controlled Drugs and Substances Act violated Parker's s.7 Charter rights, and directed that those provisions 'be read down so as to exempt from [their] ambit persons possessing or cultivating Cannabis (marihuana) for their personal medically approved use.' He further ruled that the parallel provisions in s.3(1) of the Narcotic Control Act and s.7(1) of the CDSA - neither of which provision was formally before him - be similarly read down. He also ordered that three marihuana plants seized from Parker (the subject matter of the 1997 simple possession charge) be returned to Parker. 5. It is the position of the Crown that Judge Sheppard erred in law in finding that Parker's s.7 Charter rights had been violated, and in ordering the return of the three marihuana plants. PART II: SUMMARY OF THE FACTS in http://www.ontariocourts.on.ca/decisions/2000/july/parkersummary.htm http://www.ontariocourts.on.ca/decisions/2000//july/parker.htm PART III: ISSUES AND LAW Overview 18. It is the Crown's position: (a) that the conduct in respect of which Parker seeks Charter protection is outside of the scope of s.7 of the Charter; (b) that although in s.7 Charter analysis the onus is on the person claiming the breach (here Parker), the trial judge implicitly - and at times - reversed this onus. (c) that there was no evidence upon which the trial judge could have found a deprivation of Parker's right to life, liberty or security of the person. It cannot be said that the cannabis prohibition deprives parker of medical treatment or puts his life or health at risk given the lawful alternative treatments that has chosen not to pursue; (d) that the trial judge erred in finding that the impugned legislation was overbroad or otherwise inconsistent with the principles of fundamental justice, and (e) that the reading n of a broad medical exemption was not an appropriate remedy. The conduct in Respect of Which Parker Seeks Charter Protection is Outside of the Scope of s.7 of the Charter -------------------------------------------------------- 19...22. 23. Put another way, important issues are not always constitutional issues. Constitutional protection is the highest degree of protection that our system of government affords. Issues of public policy, even significant or compelling issues - may engage Parliament or the legislatures without necessarily engaging the constitution. For this reason, the Supreme Court of Canada has always recognized the need for a degree of judicial deference in matters of public policy. In Rodriguez v. British Columbia Sopinka, J. stated for the Court: On the one hand, 'the court must be conscious of its proper role in the constitutional make-up of our form of democratic government and not seek to make fundamental changes to long-standing policy on the basis of general constitutional principles and its own view of the wisdom of the legislation.' On the other hand, the court has not only the power but the duty to deal with this question if it appears that the Charter has been violated. (emphasis added) Rodriguez v. British Columbia (1993) 85 C.C.C.(3d)15 at 65 JCT: And our court made a completely fundamental change from no prohibition to prohibition again. CR: 24. In R. v. Clay McCart J., in determining that the cannabis prohibition does not offend s.7 of the Charter, expressly held that criminalization of marihuana is a matter for the legislative branch, not for the courts. JCT: Right. Criminalisation is not for Justices Doherty, Goudge and Simmons, it's a matter for the legislative branch. CR: He declined to make a specific ruling on the 'medical use' issue on the basis that, since neither accused before him claimed a medical need for cannabis, they did not have standing to raise that issue. It is instructive, however, that after canvassing some of the defence evidence with respect to therapeutic uses of cannabis, McCart J. observed: As an aside, "Parliament" may wish to take a serious look at easing the restrictions that apply to the use of marijuana for the medical uses outlined above as well as for alleviating some of the symptoms associated with multiple sclerosis, such as pain and muscle spasm. (emphasis added) JCT: And, as the Crown emphasizes, it it's 'Parliament' that should ease the restrictions, then for sure, it's Parliament that should tighten the restrictions. CR: [...] The changes requested by the applicants regarding simple possession and small-scale cultivation would constitute a completely different approach to the question and would in my view amount to an unwarranted intrusion into the legislative domain. JCT: And the changes performed by the Court making what was no longer illegal illegal again also constitutes a completely unwarranted intrusion into the legislative domain. CR: 'Any' changes to the Narcotic Control Act should be made by Parliament. (emphasis added) JCT: My emphasis too. CR: The following quote from NORML v. Bell et al, supra, may be instructive: Congressional action must be upheld as long as a rational basis still exists for the classification. The continuing question about marijuana and its effects make the classification rational. Furthermore, 'judicial deference is appropriate when difficult social, political and medical issues are involved. Courts should not step in when legislators have made policy choices among conflicting alternatives. JCT: They had the choice of legal or illegal and left it legal. Courts should not step in when the legislators have made policy choices among conflicting alternatives. CR:That this court might resolved the issues differently is immaterial. "When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices."' (emphasis added) JCT: Courts should be cautious not to rewrite legislation. He means amend. Not from scratch. CR: The overwhelming weight of the evidence which I heard supports legislative controls over any scheme which might ease or remove the criminal sanctions for simple possession... JCT: Right. CR: As I have already pointed out, 'easing of restrictions on the possession and use of marijuana is within the domain of the legislative branch of government.' (emphasis added) JCT: I wonder if they'll have forgotten in our upcoming debates. CR: Accordingly, while McCart J. did not expressly rule on the medical issue, he implicitly endorsed the notion that the decriminalization of marihuana for therapeutic purposes - like the broader issue of decriminalization generally- is properly a matter for Parliament rather than within the s.7 jurisdiction of the courts. R. v. Clay cf. Irvin Toy Ltd. v. A.G. Quebec JCT: And for sure, the criminalisation of marijuana is for sure properly a matter for Parliament rather than the courts. CR: The Trial Judge Misapplied the Onus on the Charter Application ------------------------------------------------------ 25. The Trial Judge Erred in Finding that Parker's Right to Life, Liberty or Security of the Person had been Infringed ---------------------------------------------------------- 26.-50. The Trial Judge Further Erred in Finding that the Legislation Did Not Accord with the Principles of Fundamental Justice ------------------------------------------------- 51.-73. The Reading In Of An Exemption Was Not An Appropriate Remedy ------------------------------------------------------------ 74. In Schacter v. Canada the Supreme Court of Canada set out detailed guidelines for the granting of remedies in cases of Charter breach. The Court determined that the remedies flowing from s.52 of the Constitution Act include: striking down the offending provision (the the extent of the inconsistency); striking down the provisions and temporarily suspending the declaration of invalidity; severance (or 'reading down'); and 'reading in'. Schacter v. Canada (1992) 93 D.L.R.(4th) at 11, 28-9 75. In the present case, the trial judge ordered that the impugned sections 'be read down so as to exempt from [their] ambit persons possessing or cultivating Cannabis (marijuana) for their personal medically approved use.' He also characterized this as 'reading in an exemption.' Although the trial judge expressed the view that the language he used was sufficiently precise, it clearly leaves unconsidered a variety of issues, including the following: (a)...(f) 76. With respect to 'reading in' the Supreme Court in Schacter noted as follows: The Court should not read in in cases where there is no manner of extension which flows with sufficient precision from the requirements of the constitution. 'In such cases, to read in would amount to making ad hoc choices from a variety of options, none of which was pointed to with sufficient precision by the interaction between the statute in question and the requirements of the Constitution. 'This is a task of the legislature, not the courts.' (emphasis added) Schacter v. Canada, supra at 19 77. The Court in Schacter also reiterated the following observation of Dickson, C.J.C. in Morgentaler who, having found that the detailed scheme embodied in the abortion law was constitutionally deficient, went on to say: Having found that this "comprehensive code" infringes the Charter, 'it is not the role of the court to pick and choose among the various aspects of s.251 so as to effectively redraft the section.' (emphasis added) Schacter at page 22 JCT: Sounds like no one but the Court of Appeal and the Crown have forgotten that Parliament legislates, Judiciary adjudicates the flaws. 78. The end result that the trial judge sought to accomplish requires a careful balancing of a wide variety of interests and safeguards, in the context of Canada's larger drug control scheme. Parliament has struck such a balance in the provisions of the CDSA,the NCR, and the Food and Drug Regulations. Taken together, those provisions include a 'comprehensive code" governing rights of access to controlled substances for medical purposes. JCT: Similarly, no prohibition is a comprehensive code governing the rights of access to no longer illegal substances for any purpose. CR: In purporting to "read in" a further medical use exemption from the cannabis prohibition the trial judge engaged in precisely the kind of re-drafting of that comprehensive code that the Supreme Court has specifically said is not the role of the courts. JCT: And Sheppard was making a bad law less of an infringement of Parker's rights and they say only Parliament can do it. What about our judges who want to make a bad law more of an infringement of our rights so for sure, only Parliament can do it. CR: Put another way, the trial judge's choice of remedy - particularly in view of the many essential issues that it wholly fails to address, as enumerated above - is not "pointed to with sufficient precision by the interaction between the statute in question and the requirements of the Constitution." Such decisions should accordingly be left to the legislative branch. 79. Of course, virtually all remedies for Charter breaches will touch on the legislative domain to some extent. It is the degree of intrusion that generally determines whether or not that intrusion is unacceptable. For example, the Supreme Court held in Schacter that an intrusion into the budgetary sphere "so substantial as to change the nature of the legislative scheme in question is clearly inappropriate. Schacter at p21 JCT: We're faced with the ultimate intrusion on Parliament's prerogative. Something that was not illegal became illegal at the working of some judges. CR: 80. In the present case the judicial intrusion goes to the very core of the relevant legislative power. JCT: And if easing up on unconstitutional laws which they have the power to do is encroaching on Parliament's jurisdiction, imagine how their tightening up on unconstitutional laws improperly encroaches it. CR: Parliament's legislative authority over criminal law is, at its most basic, the power to decide whether or not particular kinds of conduct should be criminalized. The trial judge, in purporting to lift the criminal sanction for certain specific drug offences, is therefore, in effect, legislating criminal law. Morgentaler at 483-4 cf. Rodriguez at 24-5, 42 JCT: And the Court of Appeal judges, in purporting to impose the criminal sanctions, are legislating criminal law in an evenj more improper way. CR: 81. Even seemingly less intrusive remedies than the one chosen by the trial judge would, on the facts of this case, amount to judicial appropriation of the legislative power over criminal law. For example, JCT: So you can imagine how loose and way-out-of-line our judges have been with their powers. CR: (a) a court might attempt to restrict any finding of invalidity "to the extent of the inconsistency", by only striking down carefully selected portions of the Regulations (such as, for example, the "licensed dealer" requirement). This approach would suffer from the same Morgentaler frailty as the trial judge's "reading in" of an exemption, however, as it, too, would amount to a judicial re-drafting of the comprehensive legislative scheme; JCT: This is dealing with striking down. What abotu striking up? CR:(b) a court might attempt to craft a "constitutional exemption" personal to the individual applicant. The Supreme Court of Canada has expressly endorsed the existence of constitutional exemptions, but only in very limited circumstances "to protect the interests of a party who has succeeded in having a legislative provision declared unconstitutional where the declaration of invalidity has been suspended." (Corbiere. Canada unreported May 20 1999) In other words, the constitutional exemptions has never, to date, been recognized by the Supreme Court as a remedy in and of itself but rather as a means for making the actual remedy effective in respect of the individual litigant. The Supreme Court in Corbiere appears to allow for the possibility that the scope of "constitutional exemption" could be expanded but even if expanded, it would not be appropriate on these facts. It, too, would intrude unacceptably into the legislative domain: decriminalizing the otherwise criminal conduct of a specific person is as much an appropriation of the legislative function as is decriminalization of the otherwise criminal conduct of a specific class of persons. JCT: And REcriminalizing the otherwise NON- criminal conduct of a specific person is even more an appropriation of the legislative function as is REcriminalization of the otherwise NON-criminal conduct of a specific class of persons. 82. The trial judge's order that the three marijuana plants be returned to Parker is a further example of unacceptable intrusion into the legislative domain. That order, in effect, sets up individual judges as ad hoc issuers of licenses to possess marijuana, in conflict with the licensing scheme already enacted by Parliament in the NCR (and with none of the safeguards provided for in that scheme).7 83. Having regard to the principles in Schacter, the trial judge ought not to have "read in" a broad medical-use exemption to the impugned provisions. Parliament has put into place a comprehensive code that governs rights of access to controlled substances for medical purposes. No judicially-crafted remedy can provide the relief that the trial judge sought to provide without unacceptably intruding into the legislative domain. 84. Upon a judicial finding that the prohibitions against the possession and cultivation of marijuana offend s.7 of the Charter by failing to provide adequate exemptions for medical use, the only available remedy consistent with the principles in Schacter would therefore be the striking down of those provisions and the suspension of such finding of invalidity for a sufficient period of time to allow Parliament to craft satisfactory medical exemptions. JCT: Notice that both the prohibitions against both possession and the cultivation offend s.7 and that striking down the law with a suspension is exactly what they did. CR: PART IV - ORDER REQUESTED 85. The Crown requests that the appeal be allowed, that the stay of the two charges be overturned, and that the matter be remitted back to the trial judge to be dealt within accordance with his jurisdiction. Dated at Ontario this ___ day of July 1999. Roslyn Levine Q.C. Kevin Wilson Of counsel for the Attorney General for Canada JCT: That's the best case the Crown could come up to counter judges easing up on the law, which they may do. If it's that bad to overdo what they're allowed to do, how bad is it to overdo what they're not allowed to do? What a load of arguments and cases to be used to contradict them now that they're now arguing it the other way. Har har har har. What a treasure trove of powerful moves.  "licensed dealer" requirement). This approach would suffer from the same Morgentaler frailty as the trial judge's "reading in" of an exemption, however, as it, too, would amount to a judicial re-drafting o