Date: 20020503 Docket: C38113 (M28512) COURT OF APPEAL FOR ONTARIO BETWEEN Terrance Parker Appellant -and- Her Majesty The Queen Respondent In chambers Terrance Parker in person Lara Speirs for the Respondent Alan Young as a friend of the court REASONS FOR JUDGMENT Feldman J.A.: [1] The Appellant is an epileptic who requires marijuana to control the symptoms of his epilepsy. In 1997, he was successful in having charges against possession stayed on the basis of an infringement of his S.7 charter right. On July 31, 2000, in R. v Parker (2000) 49 O.R. (3d)481, this court dismissed a Crown appeal from that judgment, held that the prohibition in the Controlled Drugs and Substances Act S.C.1996 c.19 on the possession of marijuana was unconstitutional, but suspended its effect for one year to allow Parliament to amend legislation to comply with Charter. In the interim, the Appellant was granted "a personal exemption from the possession offence under the CDSA" for possessing marijuana for his medical needs." [2] On July 30 2001, the government brought into force regulations entitled the "Marihuana Medical Access Regulations," which are stated in the preamble, entitled "Regulatory Impact Analysis Statement," to address the concerns raised in the Parker decision regarding the process under S.56 of the Act for persons to obtain exemptions from the prohibition against possession of marijuana for medical use. [3] On Sep 14 2001, Health Canada granted the Appellant an exemption under S.56 of the Act for 6 months: "on the basis that such an exemption is necessary to allow you to produce and possess marijuana for medical purposes during the period of the next six months and to give you time to apply for proper authorization under the new Regulations. [4] Mr. Parker and some others similarly situated take the position that the new regulations do not satisfy the requirements set out by this court in the Parker case and that the new regulations are constitutionally invalid. [5] Acting on his own behalf, Mr. Parker brought an Application in the Superior Court seeking a further exemption from the Act until the government complied with the ruling of this court in the Parker case. That application was made returnable on March 15. Although the materials were served on the Department of Justice on March 12, before the Notice of Application was issued, and again on March 13, they did not come to the attention of Civil Litigation Section of the department until after the application was heard, although someone from the Criminal Litigation section did attempt to appear on the matter, but not in the correct court. [6] The matter proceeded as unopposed before Pitt J. who granted the Appellant's Application. [7] When the Respondent learned of the Order, it moved before Chapnik J. under Rule 38.11 for an Order setting aside the Order of Pitt J. on the basis of mistake in not appearing as well as insufficient notice. Chapnik J. set aside the Order of Pitt J., but adjourned the balance of the Appellant's Application dealing with the invalidity of the regulations to be brought on proper notice of constitutional question and with appropriate material. No interim Order was granted in respect of an exemption. Such an Order was opposed by the Respondent on the basis that the Appellant had not applied under the Regulations for an exemption, and had waited until his exemption ran out before applying to the court. Counsel took the position, as she did in this court, that her instructions were that Health Canada would attempt to deal very expeditiously with such an application by Mr. Parker. [8] Mr. Parker had appealed the Order of Chapnik J. to this court and seeks a stay of her Order pending appeal. In effect, he seeks a reinstatement of the Order of Pitt J. pending the hearing of the appeal. [9] With Mr. Parker's permission, Mr. Young also addressed the court as a friend of the court, for the purpose of advising that he is proceeding with a similar Application challenging the validity of the new regulations, but on behalf of other applicants, and to advise that if Mr. Parker does not wish to join in that group, his matter will proceed together with Mr. Young's Application. DISPOSITION [10] In his Notice of Application, the Appellant sought first an Order declaring the prohibition on possession of marijuana of no force and effect, and in the alternative, an Order extending his constitutional exemption. Pitt J. only dealt with his alternative relief. [11] In her reasons, Chapnik U. stated that the Order of Pitt J. was set aside in its entirety, and that the Appellant's cross-motion to declare the Regulations invalid was adjourned for the filing of material. Justice Chapnik noted the submissions of the Crown as to why the Appellant should not be entitled to a constitutional exemption from the court. Although no formal order has yet been taken out, it appears from the reasons that the Appellant's motion for a constitutional exemption was effectively dismissed by Chapnik J. [12] To the extent that Chapnik J. set aside the Order made by Pitt J. when, through a mistake regarding service, the Respondent did not appear to oppose, I see no merit in an appeal from her judgment. An Order made in those circumstances can not stand. Therefore, no stay can be granted which would have the effect of continuing the Order of Pitt J. [13] To the extent that Chapnik J. dealt with and dismissed the motion for a constitutional exemption, there is nothing for this court to stay pending an appeal from that Order. [14] I note that the Appellant brought his Application in Superior Court without attempting to obtain an exemption under the new Regulations, and therefore, the Record contains no evidence regarding his ability to obtain an exemption under the new Regulations. Counsel for Health Canada has advised the Court that her instructions are that any application from the Appellant will be dealt with expeditiously. [15] The motion for a stay pending appeal of the Order of Chapnik J. is dismissed. In the circumstances, there will be no costs. Feldman J.A. Released May 3 2002