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What was important in Hitzig v. Canada, Kirk Tousaw argued, was important here. Allard was in the same context. But the violation of Section 7 rights in Hitzig was under the MMAR. What Hitzig emphasized was that without the MMAR, patients who had a constitutional right to reasonable access of cannabis for medical purposes were subject to the Controlled Drugs and Substances Act. Likewise, Tousaw argued, the MMPR “places strict controls on acquisition and use of marijuana.” Patients are told that their constitutional right to reasonable access must be through a government-approved licensed producer (LP). Once the courts ruled an exemption under the CDSA, patients then had to go through the onerous regulations. “The scheme itself,” stood in the way of right to liberty. Once you have an exemption scheme the mere fact of having to comply with the exemption scheme is an obstacle imposed by the state. Strict conditions on the source of supply were clearly an impediment. If the courts ruled in favour of Hitzig when it was the MMAR, then they should certainty rule in favour of Allard and reject the supply restrictions in the MMPR.
Tousaw was basically arguing that our rights come before the government’s. The MMAR was the regulatory framework put in place after Parker made reasonable access to cannabis a constitutional right. But Hitzig argued that the MMAR was illusionary access, which reasonable access existed outside or before the regulatory framework of government. The MMPR takes what had been three supply options and narrows the choice to one. But even outside the MMAR, production and possession of cannabis are subject to criminal law and the Controlled Drugs and Substances Act.
In Hitzig, the government took the position that there was a lawful exemption scheme and that was how you accessed cannabis. The court said that's not an adequate answer to Section 7. The application process itself would affect reasonable access. The MMAR did not remove the real risk of criminal imprisonment for those who needed medical cannabis. Liberty is threatened outside the MMAR. That was the argument in Hitzig: the state has interfered with patient's broader aspect of liberty. State actions – the MMAR – violated the constitutional requirement for medical cannabis. The Plaintiffs in Allard were arguing that the MMPR was of the same nature—except obviously worse. The key concept, Tousaw reiterated, was that the infringement on the security of the person applied to the MMAR in Hitzig. But now under the MMPR, two of the three supply options were gone. If the Hitzig court found an early version of the MMAR to be unconstitutional, then the supply restrictions on the MMPR should warrant a similar ruling.
“It forces patients to become the black market,” Kirk said. “It's an affront to the rule of law.” It was clear in Hitzig, as the plaintiffs wanted to make clear in Allard, that the government's actions can't be about health and safety because their actions cause risks to health and safety. The court in Hitzig recognized that patients had to break the law to get their medicine, thus the MMAR cannot further the objectives it claims to provide. “A scheme that requires black market to get medicine cannot possibly further health and safety. In fact it has the opposite effect,” Kirk told the court. The MMPR, he argued, was doing just that. It forces patients onto the black market, to effectively become the black market. The court ruled in Hitzig that the government's actions were arbitrary in respect to Section 7.
The federal government responded to Hitzig with Prairie Plant System, a contracted commercial cannabis producer for Health Canada. The first LP, as it were. Instead of allowing a dispensary-market model to develop, the government took the court ruling, established an LP monopoly (albeit, with home-gardening) but reenacted verbatim the increase of designated growers and put a cap on the number of licenses attached to a single property. But this didn't work either and the patients took the government “kicking and screaming” back to court. Despite adding the additional supply source, the second court ruled that the undue restrictions on growing for ones self or others, violates Section 7 because it's arbitrary.
“Liberty means the right to make the choice to use marijuana,” said Tousaw, with that right implying the right of access. Nobody's physical liberty is infringed from accessing cannabis. “Patients have a right to access their medication without undue state interference.” If the courts ruled the MMAR were infringements, then surely the MMPR was a severe infringement.
Justice Phelan interrupted that the government in those previous cases never advanced the argument that they were saving money. Is that not a compelling reason?
Tousaw was a bit taken back; after all, one would think Charter rights trump financial interests, even if one doesn't necessarily believe that rights come from the Charter. But he recovered quickly. Saving money, even if that occurred under the MMPR (and Tousaw maintained that assumption wasn't borne out by facts) the government's choice to have a general prohibition on cannabis was an expensive choice with several economic consequences. One of the consequences was highlighted by the necessity of an exemption scheme for medical uses of cannabis. “To the extent that the MMPR is saving the government money over the MMAR,” Tousaw told Justice Phelan, “let's be clear. That exemption scheme only exists because of the general prohibition of cannabis.” He acknowledged that this wasn't the issue before the Justice. But it was a satisfactory answer to the financial question. And Justice Phelan agreed. The cost-saving argument brings up all these other factors. Kirk reiterated as well, that even if the MMPR did save the government money, “transferring the economic burden from the government to the patient is to deny access to medicine,” and thus violate their constitutional rights.
Tousaw continued. The broad objectives set out by the government essentially short circuits Section 7. It predetermines the outcome, in other words. By claiming control over medical cannabis through the regulatory regime, the government has conflated the objective (health and safety) with the means to that objective. “You short circuit the analysis,” Kirk said. This is why Carter v. Canada was important. If the objective was so broad, any state action can be justified. The MMPR removal of supply side options had the opposite effect of both objectives: health and safety, and reasonable access for patients. Therefore the removal of gardens was a completely arbitrary decision.
Justice Phelan had issues with that, however. If the objective was that all happy people remain happy, “what is the real objective of the provision?” It could literally be anything. “How do you determine that?”
Tousaw had an answer: The objective is what the government says it was. In a previous case related to medical cannabis and the federal government, they were arguing that their actions protect health and safety. In another, it was upholding the Canada Health Act. In the MMAR the objective was compassionate access for those who required it. Under any of those, or blending of those objectives, the evidence before the Justice runs contrary to those goals. The removal of home gardens backed by criminal prohibition denies access and is detrimental to the health and safety of the patients. Tousaw emphasized that once medically approved, the principles behind Parker apply. There is an exemption under the Controlled Drugs and Substances Act. Patients say it's their right to produce for themselves or have someone do it for them without having to face criminal law. The government proposal in the MMPR is to take that away entirely. Carter, said Tousaw, instructed us on what arbitrary means. It's a law not capable of filling its objective.
The MMPR doesn't protect health and safety. Patients are harmed by no longer being able to produce themselves. This subjects them to criminal law if they try, or they can go without an adequate supply of their medicine. The government – the defendant – avoided the issue. Kirk argued that the defendant made it seem like the plaintiffs were seeking a “free standing right” to produce medical cannabis. To counter this, he brought up the similar argument made in Chaoulli v. Quebec. Where a very sick man, and an honest hardworking doctor, found themselves at the mercy of the state after exchanging medical care for money instead of having the patient wait in line for months to be treated “for free.”
The Chief Justice in that case spoke on restricting private health care services: the Charter did not provide a free-standing right to health care. Where there was a public scheme, it must comply with health care standards. The primary objective of the Health Canada Act was to promote and give reasonable access to healthcare. But by imposing a coercive monopoly and then refusing to (or being unable to) give reasonable access, the government triggered the conditions for Section 7 of the Charter. Likewise, the government in this case removed the supply options making medical cannabis a “virtual monopoly.” It has direct parallels, according to Tousaw. The MMPR restricted cannabis to only those who could afford private sellers. And even those people can be delayed from lack of supply, the onerous process of getting a new doctor's prescription for each different LP and the fact that many LPs aren't accepting new patients. The government, said Tousaw, has to provide something that is in line with the Charter. That means personal cultivation.
The MMPR is supposed to be about health and safety. The Crown has been arguing that the LP supply is preferable, but that's not the question. The legal question is: is there a violation of Section 7 when prohibiting gardening causes harm and risks health and safety. The Justice in Chaoulli ruled that the laws banning private health care was arbitrary and unconstitutional. Section 7 was triggered because of a delay in access to treatment. Not prohibition, as in this case, but a delayed access to healthcare.
Tousaw was on fire. He belittled the government's position that “the sky will fall” if personal cultivation is allowed. The defendant simply couldn't provide the evidence. “The prohibition [on gardens] is therefore arbitrary.”
But Justice Phelan answered: It was arbitrary because of no evidence of real problems. Fourteen years of relatively unblemished service and to change the system was arbitrary? Tousaw contended it was arbitrary to remove personal supply options and criminalize the former legal growers because it's harmful to their health and safety. It meant a lack of access to cannabis for medical patients and therefore ran counter to the government's stated goals in the MMPR. It's the impact that leads to the arbitrariness, said Justice Phelan, “not the mere fact of change.”
“It's not that mere fact of change,” Tousaw agreed, but he assured the Justice that the evidence before him ran contrary to the objectives set forth by the government. And they knew going into the process that the effects would run counter to the objective. They knew people would be unable to access their medicine under the MMPR but they went ahead and did it anyway and that was arbitrary.
The question was: Had the chosen means infringed the rights, liberty and security of the person? Tousaw argued they had. Under the MMPR, an absolute prohibition on personal production had been reinstated. And all to prevent some alleged conduct. The conduct of people who would over-grow, sell to the black market, or not follow simple building codes and electrical safety. The removal of gardens was directed at this kind of conduct. But the evidence didn't bear any of this out. We didn't hear report of those harms occurring in any justifiable degree. And absolute prohibition does harm. It creates health and safety issues for the patients who weren't bad actors. Patients like Mr. Allard who has done everything by the book and above the table.
And there was the disproportionality of the entire scheme. Tousaw referenced Vancouver's safe injection site: Insite. It was about to be shut down by the federal government. The court decided this violated Section 7. The Minister's decision directed against Insite was arbitrary and grossly disproportional to any benefit Canada may receive by shutting the clinic down. Insite saves lives. Likewise, personal production of cannabis improves patients’ health and quality of life. Tousaw said: The harms of not having reasonable access have been proven in trial. We know that Canada was not at risk for 14 years under the MMAR. The fact that the government wants to prohibit home gardening was grossly disproportional to any perceived benefit generated by prohibition. Kirk used Tanya Beemish as the obvious example: “The moment she lost it [her garden], she was back in the hospital, she's in pain... she's getting worse, not better. Worse.”
In former cases, the government justified the MMAR because their commercial supply model would be subject to production standards and eventually distributed through regulated pharmacies instead of the unregulated dispensary/compassion club model that Hitzig v. Canada provoked. What's key, Tousaw argued, was that in all cases related to the MMAR, the government never moved to eliminate personal production. It was implied in Parker v. Regina that cultivation was part of that right to reasonable access. As the presiding judge saw it, “Since Parker was not charged with the cultivation offence, that offence is not expressly before this court. However, it is apparent from these reasons and the reasons dealing with the cultivation offence under the Narcotic Control Act that if the cultivation provision had been before this court, I would hold that it too infringes Parker's s. 7 rights.”
Hopefully Justice Phelan feels the same way.
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