1) Hitzig Application for Leave to Appeal 2) Crown Memorandum in Response 3) Hitzig Reply IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Ontario) BETWEEN: HER MAJESTY THE QUEEN Respondent AND WARREN HITZIG, ALISON MYRDEN, MARY-LYNNE CHAMNEY CATHERINE DEVRIES, JARI DVORAK, STEPHEN VAN DE KEMP, DEBORAH ANNE STULTZ-GIFFIN & MARCO RENDA Applicants APPLICATION FOR LEAVE TO APPEAL AND FOR EXTENSION OF TIME INDEX Volume I Tab Notice of Application for Leave to appeal and for extension of time...............................1 Affidavits..............................................2 A. Alan Young Re: Application for Leave to Appeal B. Alan Young Re: Application for Extension of Time Volume II Certificate in Form 25B.................................3 Notice of Application, dated May 23, 2002...............4 Notice of Constitutional Question, dated May 23 2002....5 Order, Lederman J., Superior Court of Justice, Jan 9 2003...................6 Reasons for Judgment, Lederman J. Superior Court of Justice, Jan 9 2003...................7 Notice of Cross-Appeal and Respondent's certificate dated April 1 2003..........................8 Reasons for Judgment, Court of Appeal for Ontario, Doherty, Goudge, Simmons dated Oct 7 2003...............9 Order, Court of Appeal for Ontario.....................10 Memorandum of Argument.................................11 A. Controlled Drugs and Substances Act.S.C.1997,C.19,Art4 B. Loi reglementant certaines drogues et autres substances C. Marijuana Medical Access Regulations, S.O.R. 2001-227 D. Reglements sur l'acces a la marihuana a des fins therapeutiques, D.O.R.S 2001-227 NOTICE OF APPLICATION FOR LEAVE TO APPEAL MEMORANDUM OF ARGUMENT Overview -------- 1. The Applicants consist of a number of seriously ill Canadians who have, for years, been seeking access to marijuana to help treat the symptoms of their debilitating illnesses. Some have managed to obtain Authorizations to Possess ("ATPs") under the Marihuana Medical Access Regulations ("MMAR") which were enacted by the Government as a response to the Ontario Court of Appeal's July 2000 decision in R. v. Parker, infra. Others have been unable to obtain the support of the requisite number of specialists to complete the MMAr application forms. For each of the Applicants, as well as hundreds of medical marijuana users like them, the judicially compelled development of an effective medical marijuana scheme has been an arduous process. 2. Since 1997, Canadian courts have had to repeatedly redirect the Government's failed efforts at creating a constitutionally adequate scheme for exempting medical users of marijuana from the general criminal prohibition. Despite the urgent needs of hundreds of seriously ill Canadians, the Government has repeatedly failed to honour the letter and spirit of those previous court decisions. The decision of the Court of Appeal is the case at bar, while attempting to remedy the constitutional defects of the current medical exemption scheme, fails to guarantee that the Government's response to the decision will provide a constitutionally adequate medical exemption scheme. It is a matter of public and national importance that this Court address both the adequacy of the Court of Appeal's remedy for the constitutional defects in the Government's medical marihuana scheme as well as whether the nature and history of the constitutional issue in this case demands an order that one of the courts below maintain supervisory jurisdiction over the response to the remedy. Procedural History ------------------ 3. In May 2002, the Applicants launched a constitutional challenge to the MMAR and to s.4 of the CDSA. The Applicants contended that the MMAR violated s.7 of the Charter in that it created unnecessarily onerous barriers to medical marijuana users obtaining the ATPs required to exempt them from the risk of criminal sanction (i.e., "eligibility"). The Applicants also contended that, for those medical marijuana users who had managed to obtain ATPs,the combined effect of the MMAR and the CDSA was to deny many of them access to a safe and reliable supply of marijuana (i.e., "supply"). In support of their application, the Applicants amassed volumes of affidavit evidence from experts and medical users documenting the various flaws in the Government's medical marijuana scheme. In response, the Crown produced volumes of affidavit evidence from experts and Government officials. Cross-examinations took place over the summer of 2002. The hearing before Lederman J. of the Ontario Superior Court took place on September 19 and 20 2002 and October 18 2002. Lederman J. released his decision on January 9 2003 wherein he dismissed the challenge to the eligibility requirements but agreed with the Applicants on the supply issue. However, rather than compel the Government to supply marijuana to persons with ATPs, Lederman J. determined that the appropriate constitutional remedy was to simply strike down the entire MMAR and to then suspend the declaration for 6 months. Reasons for Judgment of Lederman J, Leave Application Tab 7 4. The Crown appealed the declaration of invalidity which resulted from Lederman J.'s findings on the supply issue. The Applicants cross-appealed against Lederman J.'s findings with respect to the eligibility issue and with respect to his remedy. The appeal was heard on July 29, 30 and 31 of 2003. On October 7 2003, the Court of Appeal dismissed the Crown's appeal and, in part, allowed the Applicants' cross- appeal; that is, the Court of Appeal agreed that at least one of the MMAR's eligibility requirements was unconstitutionally onerous. The Court, however, set aside the constitutional declaration made by Lederman J. (which the Appellants had sought to both defend and expand to include a declaration of invalidity with respect to the marijuana prohibition in s.4 of the CDSA. Instead, the Court of Appeal determined that the appropriate remedy was to sever certain provisions in the MMAR. The Court of Appeal held that, by doing so, the MMAR would regain their constitutional validity and, thus, there was no basis for invalidating the general criminal prohibition on marijuana found in s.4 of the CDSA (as the Applicants had contended). Reasons for Judgment of Court of Appeal, Leave Appl.Tab 7 The Facts --------- 5. The facts of this case are essentially the "legislative facts" which are summarized in the decisions of the courts below. The following passages from the Court of Appeal's decision highlight the salient facts: [18] All of the Hitzig applicants, with the exception of Mr. Hitzig, are seriously ill individuals who have used marihuana for many years to successfully treat one or more of the symptoms associated with their illnesses. These symptoms include pain, nausea, lack of appetite, seizures and spasticity. Four of the applicants have received licences to possess marihuana under the MMAR. One of those four, Mr. Dvorak, has also received a licence to personally produce marihuana to meet his medical needs. The three remaining applicants have not applied for licences to possess or produce. They contend that they cannot get the specialist support needed to obtain licences to possess under the MMAR. They attribute this to difficulties in getting access to a specialist, combined with the specialists' reluctance, based on advice from professional medical organizations and the primary insurer of doctors in Canada, to become involved in the MMAR process.... [20] Mr. Hitzig operated the Toronto Compassion Centre, which provided a supply of medicinal marihuana to seriously ill individuals for more than three years until it was raided by the police and closed down. He attempted to obtain an exemption for the Centre, prior to the MMAR coming into force, but eventually concluded, based on legal advice, that he could not. Mr. Hitzig's affidavit contains vivid evidence of the risks associated with cultivating marihuana under the present legal regime. He has been robbed and beaten by criminals, and raided and arrested by the police... [21] The applicants all meet their medical marihuana needs through a combination of self-cultivation and purchase on the black market. They described the significant problems associated with both sources of supply. Some are too ill and are physically unable to grow their marihuana. Others do not have the facilities to grow their own. Still others are concerned about exposing themselves and family members to the risks inherent in producing a product for which there is a thriving black market. Production by designates is also not a viable alternative to many for a variety of reasons. The applicants described the many problems associated with the actual cultivation. Growing marihuana that is suitable for medicinal use is no easy task. It is time consuming and labour intensive. Crops can fail entirely or yield insufficient marihuana to supply the grower's medical needs. [22] The problems associated with the purchase of medicinal marihuana on the black market are numerous and, in most cases, obvious. As with any black market product, prices are artificially high. High prices cause real difficulty for seriously ill individuals, many of whom live on fixed incomes. Black market supply is also notoriously unpredictable. The supplier of marihuana today may have moved on by tomorrow or may have been closed down by the police. In addition to unpredictability, there is no quality control on the black market. Purchasers do not know what they are getting and have no protection against adulterated product. This is particularly problematic for some whose illnesses involve allergies, or stomach ailments that can be aggravated by the consumption of tainted products. Resort to the black market may also require individuals to consort with criminals who are unknown to them. In doing so, they risk being cheated and even subjected to physical violence. Finally, the evidence of the applicants makes it abundantly clear that requiring law-abiding citizens who are seriously ill to go to the black market to fill an acknowledged medical need is a dehumanizing and humiliating experience. [23] The Government accepts that reliance on the black market to fill a medical need would in most cases raise supply problems. It maintains, however, that marihuana is unique in that there is an established part of the black market, which the Government calls "unlicensed suppliers", that has for many years provided a safe source of medical marihuana. The Government argues that those who want to use marihuana for medical purposes have been "self-medicating" for years and know full well where to go to obtain the necessary medical marihuana. It is the Government's contention that this particular part of the black market does not present the problems that are generally associated with purchase of product on the black market. The application record offers some support for this contention. Many of the applicants do have well-established "friendly" sources in the black market from which they can safely acquire reliable medicinal marihuana. It is ironic, given the Government's reliance on this part of the black market to supply those whom the Government has determined should be allowed to use marihuana, that the police, another arm of the state, shut down these operations from time to time, presumably because they contravene the law... [70] The MMAR, however, address access only for those who can grow their own marihuana or get a designate to do it for them. The evidence leaves no doubt that many individuals who have received ATPs and many who would be entitled to receive ATPs under the MMAR cannot possibly grow their own marihuana. Many of these individuals are not only seriously ill, but they are significantly physically handicapped. Cultivation by a designate is an answer for some, but by no means all, of these people. Mr. Hitzig's affidavit makes it clear that serving as a designate has real costs and risks. The possibility of getting someone else with the requisite skill to grow the necessary marihuana for an ATP holder is further restricted by the provisions in the MMAR which prohibit a designate from being compensated for his or her services, limit designates to growing for only one ATP holder, and restrict the pooling of licences to produce to no more than three growers. Reasons for Judgment of Court of Appeal, Leave Appl.Tab 7 PART II: POINTS IN ISSUE ------------------------ Issue #1: Does this case raise an issue of public or national importance which warrants this Honourable Court's consideration? Issue #2: Did the Court of Appeal err in holding that the appropriate remedy for the constitutional defects in the MMAR was to simply sever certain provisions without also remitting the case back to the learned Motions Judge so that the court below could ensure that the new medical marijuana scheme created by the Court of Appeal's Order and the Government's response thereto, would adequately address the needs of seriously ill Canadians? PART III: ARGUMENT ------------------ Issue #1: Does this case raise an issue of public or national importance? ---------------------------------------------------- 6. The principle issue in this proposed appeal would be whether, as part of its constitutional remedy, the Court of Appeal ought to have imposed a "supervisory" order along the lines of what a majority of this Court had endorsed in the recently decided case of Doucet Boudreau v. Nova Scotia (Min. of Education), infra. As will be discussed more fully below, the case at bar is a paradigmatic example of when such an order is just and appropriate. A history of the Government's reluctance to implement an effective medical marijuana scheme in the face of repeated judicial pronouncements urging it to do so. ----------------------------------------------------- 7. Since 1997, Canadian courts have made clear to the Government, not only that it must allow seriously ill Canadians to use marijuana for medical purposes free from the risk of criminal sanction, but also that the Government must ensure that the broader criminal prohibition on marijuana does not deprive those medical users of a safe and reliable supply of marijuana. 8. Although it was not until the Ontario Court of Appeal's 2000 decision in Parker that a Canadian appellate court first recognized the historical origins of medicinal marijuana, the contemporary Canadian legal debate over medicinal use of marijuana appears to have commenced in 1997. In 1997,in the trial of R. v. Clay [decision reported at 1997, 9 C.R.(5th) 349], it was argued that the marijuana possession offence was constitutionally overbroad for failing to accommodate and exempt medical use. The argument was rejected on the basis that Mr. Clay did not have standing to raise the issue of medicinal use. Nevertheless, the judge in Clay noted: "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 as outlined above as well as for alleviating some of the symptoms associated with multiple sclerosis, such as pain and muscle spasm. There appears to be no merit to the widespread claim that marijuana has no therapeutic value whatsoever. In any event, as I understand it, Marinol is not available in Canada." - Affidavit of A. Young, Leave Application, Tab 21 9. Later that year (1997), a trial judge granted Terence Parker a constitutional exemption to use marijuana for combating the seizures he suffered as a result of his disease (epilepsy). Very soon after the trial judge's decision in Parker, a civil application was launched in the Ontario Superior Court by AIDS patient James Wakeford seeking a constitutional declaration with respect to his right to use marijuana for medical purposes. Mr. Wakeford's initial application was dismissed, primarily on the basis that the motions judge (LaForme J.) had concluded that Mr. Wakeford had not exhausted his administrative remedies in relation to obtaining a medical exemption. At that first hearing, the Crown had taken the position that there did (in theory) exist an administrative mechanism under which Mr. Wakeford could have obtained a lawful medical exemption to the criminal prohibition on marijuana. Mr. Wakeford took the position that in actual fact, no such administrative mechanism existed or that any such mechanism was entirely illusory and therefore there were no alternative remedies for him to exhaust. - Affidavit of A. Young, Leave Application Tab 2a 10. Although Mr. Wakeford's fist application was dismissed in early 1998, Mr. Justice Laforme noted, as had the trial judge in the Clay case, that the Government must take immediate steps to address the issue of medicinal marijuana: "It should be obvious by now that our society must begin to seriously give consideration to the medicinal benefits of marijuana. Medical evidence and opinion, albeit not complete, clearly indicate that the time has come to examine this sincerely. In the case at bar, anecdotal evidence was submitted that attempts to demonstrate the many ways in which marijuana has brought medical assistance and relief to persons suffering debilitating and deadly ailments. These include prominent professionals and others who suffer from cancer, AIDS and epilepsy, to mention only some. All speak of the relief and benefits obtained from marijuana smoking during their illnesses and treatment, all of which is described as painful and debilitating until then. In this regard they express the same concerns as Mr. Wakeford as to the availability of "clean" and affordable marijuana. All of these concerns are, in my view, valid and ought to be dealt with by Parliament if it has not done so or is not doing so. If such is not the case, the courts of this land will, without question, continue to be called upon and expected to provide a remedy for this very pressing and fundamentally important issue. Unlike government, the courts do not have the luxury of avoiding this difficult and sensitive matter until a more suitable time. Our duty is to decide such issues as they are presented to us on a case by case basis. Such an approach, in my opinion, cannot be either satisfactory or the most beneficial to the interests of our society." - Affidavit of A. Young, Leave Application Tab 2a 11. Following the dismissal of his initial application, Mr. Wakeford spent the next 6-7 months attempting to obtain an exemption for his medicinal use from the Minister of Health. After failing to obtain any meaningful response, Mr. Wakeford applied for a re-hearing before Laforme J. on the basis that the Crown had misrepresented the true status of the exemption process, namely, that it did not in fact exist. When the rehearing was conducted in March 1999,the Crown tendered the "Interim Guidance Document" and conceded that this document represented Health Canada's first attempt at creating a medical exemption process. Contrary to assertions the Government had previously made at Mr. Wakeford's initial hearing before Laforme J., nothing remotely similar to this program had existed at the time of that initial hearing. Accordingly, at the rehearing, LaForme J. concluded that Mr. Wakeford was entitled to a constitutional exemption. 12. In June 1999, Mr. Wakeford became the first recipient of a medical exemption under s.56 of the CDSA in accordance with the terms and conditions of the Interim Guidance Document. On Aug. 6 1999, Professor Young wrote to Dan Michols (who was then in charge of the Government's medical marijuana program) requesting that Mr. Wakeford be provided with a "safe, secure and affordable supply" of medicinal marijuana which the Government had now authorized him to possess. Over the next six months, there was an exchange of communications between Mr. Wakeford (or Professor Young on his behalf) and the Government. Eventually, Mr. Wakeford and Professor Young met with the Minister Rock's assistant, Paul Genest, to discuss the possibility of accessing two lawful sources - the National Institute of Drug Abuse supply in Mississippi or the G.W. Pharmaceuticals supply in England. By letter date-stamped November 23 1999, Minister Rock wrote to Mr. Wakeford noting that "I'll work to have our own supply as soon as possible." 13. By letter dated December 13 1999, Professor Young provided Health Canada with a deadline to accede to Mr. Wakeford's request for a safe and reliable supply of marijuana. Professor Young suggested that "Health Canada make the necessary arrangements to secure a supply of medicinal marijuana from the US or the UK no later than January 5 2000." Health Canada took no steps to address Mr. Wakeford's request. Consequently, early in 2000, another civil action was commenced to compel Health Canada to secure a lawful supply of medicinal marijuana for Mr. Wakeford. 14. In February 2000, Health Canada held a "stakeholders" consultation meeting at which distribution and access were identified as one of five priorities to which Health Canada should attend. This is reflected in the policy impact statement which was published together with the MMAR. In response to the suggestion by some patients that the Government licence and recognize "compassion clubs" as a means of providing patients with a safe and reliable supply of medical marijuana, the Government said (as set out in "Issue #2" of the policy impact statement): "Health Canada is not prepared at this time to consider licensing other organizations or companies to produce and distribute marihuana. In December 2000, Health Canada issued a contract to a Canadian company to produce research-grade marijuana. Health Canada will be evaluating various options to ensure patients have access to a safe high-quality supply of marihuana for medical purposes." 15. In May 2000, Mr. Wakeford's second constitutional application (i.e., to compel the Government to provide access to a safe and reliable supply of medical marijuana, was dismissed by Justice B. Wright. The motions court judge concluded that Mr. Wakeford was not hindered in his ability to secure a constant supply of safe marihuana and therefore the inaction of the government did not affect or impair his right to security. In addition, the motions court judge noted that "in his view, the Government of Canada is acting reasonably in planning to have Mr. Wakeford and others participate in clinical trials with marijuana rather than supply marijuana directly to exemptees". However, by the time the application in this case was launched in the Ontario Superior Court of Justice (i.e., June 2002) the Government had approved only two clinical trials, involving only about 60 patients, and neither trial had yet to commence. 16. On July 31, 2000, R. v. Parker, infra, the Ontario Court of Appeal found that the marijuana possession offence was constitutionally overbroad due to its failure to accommodate and exempt medical use. The Court concluded that the Government's Interim Guidance Document was a constitutionally insufficient scheme for determining whether a medical user of marihuana was entitled to an exemption from the operation of the criminal prohibition. The court's invalidation of the general prohibition was suspended for one year to allow Parliament time to address the deficiencies with respect to the medical marijuana issue. - R. v. Parker (2000) 146 C.C.C.(3d) 193 (Ont.C.A.) 17. In December 2000, the Minister of Health announced that the Government had awarded a contract to Prairie Plant Systems ("PPS") for production of research-grade medicinal marijuana. - Affidavit of A. Young, Leave Application Tab 2a 18. In December 2001, the Minister of Health announced that medicinal marijuana produced by PPS will be used for "structured research programs" and for "authorized Canadians using it for medical purposes who agree to provide information to my department for monitoring and research purposes." Throughout 2001, officials from the Minister's office and the contractor, PPS, had discussions regarding the mechanism by which medicinal marijuana would be produced and then distributed to authorized Canadians. 19. In May 2002, the proceedings in the case at bar were commenced primarily as a result of the Government's unwillingness to distribute any of the medicinal marijuana that had been produced for it by PPS (dating back to the commencement of the contract in 2001). In support of their claim that the Government had a suitable supply of safe marijuana available to distribute to exemptees, the Applicants relied upon the sworn evidence of Brent Zettl, the President of PPS. Mr. Zettl deposed that a significant quantity of medicinal marijuana would be available for distribution (both for medical and research purposes) by Christmas 2002. Mr. Zettl's company had managed to produce two strains of marijuana which would be suitable for distribution. On March 10 2003, Professor Young spoke with Mr. Zettl and was advised that nothing had changed in the state of the evidence save for the fact that even more of that marijuana is now available and that two further strains have been identified as potentially suitable for distribution. 20. After two years of study, consultation and research, the Report of the Senate Special Committee on Illegal Drugs was released on September 4 2002. The Special Senate Committee concluded: "The MMAR are not providing a compassionate framework for access to marijuana for therapeutic purposes and are unduly restricting the availability of marijuana for patients who may receive health benefits from its use." Amongst other things, the Special Senate Committee recommended that the Government begin to licence "compassion clubs" to assist in supplying authorized users with medical marijuana. - Affidavit of A. Young, Leave Application Tab 2a - Reasons for Judgment of Court of Appeal, Tab 9 para 122-6 21. In December 2002, a judge of the Cour du Quebec sitting in Montreal dismissed "possession for the purpose of trafficking" charges that had been laid against le Club Compassion de Montreal on the basis that, in the circumstances, the Club's actions of supplying patients with medical marijuana was protected by s.7 of the Charter. The Federal Crown chose not to appeal against that decision (and yet the criminal charges against the Applicant Hitzig, commenced in August 2002, remain outstanding). - R. v. St-Maurice [2002] J.Q. No. 5670 22. On January 9, 2003, Lederman J. allowed the Applicants' application challenging the constitutional sufficiency of the medical marijuana exemption scheme created by the MMAR. Lederman J. declared the MMAR to be unconstitutional and of no force and effect. Lederman J. suspended his declaration for 6 months to allow the Government "time to fix the MMAR or otherwise provide for a legal source and supply of the drug the MMAR authorize seriously ill Canadians to possess and produce, consistent with their s.7 rights." Instead of ordering the Government to remedy the constitutional defects in any specific way, Lederman J. decided that it was best to afford the Government the "flexibility necessary to fashion a response which is suited to the circumstances." Nevertheless, in his Reasons for Judgment, Lederman J. suggested the following options: "The [Government] may, for instance, wish to continue to utilize PPS or some other entity to grow medical marijuana and provide a legal source of seeds. As far as the distribution of marijuana to qualified users is concerned, the government might consider creating properly regulated distribution centres or licensing compassion clubs, as proposed in the recent Report of the Senate Special Committee on Illegal Drugs: Cannabis. As the applicants suggest, the Special Access Program may also offer a mechanism for distributing a safe and reliable supply of medical marijuana." 23. The Government filed an appeal against the decision of the Order of Lederman J. Rather than take any steps towards complying with the Order and/or the motions court Judge's recommendations, the Crown did nothing other than to seek a stay of the order pending the determination of the appeal. The Crown's application for a stay of Lederman J.'s order was dismissed on June 25 2003 by Carthy J.A. sitting in Chambers. In dismissing the Crown's application for a further suspension of Lederman J.'s order, Carthy J.A. stated: [... A stay would effectively extend the six month suspension to the hearing date with no evidence or rationale supporting doing so except that the appeal hearing is approaching. Lederman J. granted the postponement to enable something to be done, not to enable an appeal to be completed. Why shouldn't his judgment take effect? Is there prejudice? Is more time needed? No evidence is put forward to answer these questions or to address why the six month period was inappropriate. 24. On July 8 2003, the day before the Order of Lederman J. was set to take effect, the Government announced that it had implemented a new "interim policy" that would permit PPS to lawfully distribute marijuana to medical users who were authorized to possess. This regulatory amendment was "being implemented on an interim basis only, until the Government of Canada's role and responsibilities with respect to the source and supply of marijuana for medical purposes are clarified by the Courts." Under Health Canada's new interim policy and regulatory amendments, a patient could only access PPS-grown marijuana through a doctor. On the same day that Health Canada announced the new interim policy and regulatory amendments, the Canadian Medical Association recommended that doctors "not participate in dispensing marijuana under existing regulations, and [warned] that those who do, do so at their professional and legal peril." - Affidavit of A. Young, Leave Application Tab 2a 25. Almost immediately following Health Canada's announcement of its new interim policy and regulatory amendments," several medical marijuana users, including a number of the Applicants in this case, commenced the application process required to gain access to the Government's supply of dried marijuana. Many of those who have obtained the Government-supply of marijuana have complained about the poor quality of the marijuana that has been provided to them. Most have found that the marijuana provided by the Government has little or no beneficial effect. Brent Zettl, the President of PPS, has indicated that Health Canada has required PPS to blend lower-THC strains with the higher-THC strains of marijuana which PPS had previously produced. According to Mr. Zettl, Health Canada has also insisted that PPS grind the entire dried plant - i.e., stalk, leaf and "bud"*1 - into a single mixture which is then shipped to the medical marijuana users. As a result of the poor production qualify of the PPS-marijuana, many authorized medical marijuana users have chosen to cancel their subscription for the Government supply and have returned to the vagaries of the black market. *1 Marijuana smokers would not normally consume the stalk and the leaf. It is the dried flower tops, commonly referred to as "buds", which contain the active ingredients. 26. The hearing before the Court of Appeal for Ontario in this case took place on July 29, 30 and 31, 2003. The Court reserved its decision until October 7 2003. The Court concluded that the MMAR violated the Charter both in terms of the undue restrictions placed on those who apply for authorization to possess marijuana for medical purposes and in terms of those who, once authorized, seek to gain access to a safe and reliable supply of medical marijuana. Unlike Lederman J., however, the Court of Appeal sought to remedy the constitutional defects by way of severing some of the provisions in the MMAR. In crafting the remedy, the Court of Appeal expressed its concern that the severed provisions created "barriers [which] effectively prevent the emergence of lawfully sanctioned 'compassion clubs' or any other efficient form of supply to ATP holders". In refusing to suspend its declaration, the Court noted: [... a central component of the Government's case [before the Court] is that there is an established part of the black market, which has historically provided a safe source of marihuana to those with the medical need for it, and that there is therefore no supply issue. The Government says that these "unlicensed suppliers" should continue to serve as the source of supply for those with a medical exemption. Since our remedy in effect simply clears the way for a licensing of these suppliers, the Government cannot be heard to argue that our remedy is unworkable." - Reasons for Judgment of Court of Appeal, Tab 9 27. In the weeks following the release of the Court of Appeal's decision, a number of potential medical marijuana growers in Ontario and British Columbia have written Health Canada to seek clarification as to what the Government would require in order for a "compassion club" to obtain the type of licence contemplated by the Court of Appeal. Other than referring people to the text of the Court of Appeal judgment, Health Canada has provided no guidance with respect to the criteria which must be satisfied before it would issue such a license to a compassion club. Some people, who have already held licenses to produce medical marijuana for single authorized users, have recently asked Health Canada to allow them to expand their production to include other authorized medical users. Health Canada has refused them as well. 28. On December 8, 2003, Health Canada announced its "response to the October 2003 Ontario Court of Appeal decision in "Hitzig et al v. Her Majesty the Queen." While "entrenching into the Regulations the Government of Canada's commitment to continue to supply dried marijuana to authorized individuals," the Government chose to maintain the "[existing] limitations on production of marijuana by designated growers": "Designated-person Production License holders can grow for only one holder of an Authorization to Possess; and, not more than three holders of licenses to produce can cultivate together." The circumstances of this case would have provided a strong foundation for the courts below to consider imposing a supervisory order of the type at issue in Doucet-Boudreau ----------------------------------------------------------- JCT: Paragraphs 29 to 32 ignored Issue #2: Did the Court of Appeal err in holding that the appropriate remedy for the constitutional defects in the MMAR was to simply sever certain provisions without also remitting the case back to the learned Motions Judge so that the court below could ensure that the new medical marijuana scheme created by the Court of Appeal's Order and the Government's response thereto, would adequately address the needs of seriously ill Canadians? ----------------------------------------------------------- The Need for Superintending the Efficacy of a Constitutional Remedy in this case. ------------------------------------------------------------ Paragraphs 29. - 36. omitted PART IV - ORDER SOUGHT CONCERNING COSTS --------------------------------------- Consistent with its position in the courts below, the Applicants do not seek any order concerning costs. PART V - ORDER REQUESTED -------------------- The Applicants respectfully request that leave to appeal be granted. All of which is respectfully submitted this 19th day of December 2003 by Paul Burstein, Counsel for the Applicants HITZIG, MYRDEN, CHAMNEY, DEVRIES, DVORAK, VAN DE KEMP, STULTZ-GIFFIN & RENDA ------------------------------- IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Ontario) BETWEEN: HER MAJESTY THE QUEEN Respondent AND WARREN HITZIG, ALISON MYRDEN, MARY-LYNNE CHAMNEY CATHERINE DEVRIES, JARI DVORAK, STEPHEN VAN DE KEMP, DEBORAH ANNE STULTZ-GIFFIN & MARCO RENDA Applicants ------------------------------------- MEMORANDUM OF ARGUMENT IN RESPONSE TO THE APPLICATION FOR LEAVE TO APPEAL ------------------------------------- PART I - STATEMENT OF FACTS --------------------------- A. OVERVIEW ----------- 1. This matter arises out of a judgment of the Court of Appeal for Ontario that certain provisions of the Marihuana Medical Access Regulations, which provide seriously ill persons with a process by which they can obtain an authorization to possess, and a license to produce, marihuana for medical purposes, when conventional treatments have failed, were contrary to section 7 of the Charter of Rights and Freedoms. 2. The Applicants were successful litigants in the courts below. They sought declaratory relief and, in the alternative, a mandatory order that the Government supply the Applicants with marijuana from the Government supply. The Court of Appeal accepted their argument that the MMAR failed to provide a lawful source of marijuana for medical purposes,a nd thereby violated section 7 of the Charter. The Court, therefore, declared invalid those provisions of the MMAR which the Applicants identified as barriers to the creation of a lawful source of supply. The Court also accepted the Applicants' argument that the requirement that, in certain circumstances, individuals obtain the support of a second specialist as a pre-condition to obtaining an authorization to possess marihuana for medical purposes, was contrary to section 7 of the Charter. The Court, therefore, declared invalid the provisions of the MMAR relating to this requirement. 3. The Applicants now seek leave to appeal to this Honourable Court to raise an issue that was never argued in the courts below. They take no issue with the substance of the declaratory relief granted by the Court below; rather they contend that this Court should grant leave on the narrow sue of whether the Court of Appeal erred in law in not maintaining supervisory jurisdiction over the remedy granted by it, an issue not raised at trial or in the Court of Appeal. 4. The Respondent asserts that leave to appeal should not be granted. No error of law arises on a question of any national or public importance. The Applicants cannot now be heard to complain that the Order made by the Court of Appeal was not appropriate and just in the circumstances. Moreover, it would have been inappropriate for the Court of Appeal to maintain on-going supervision, having regard to the circumstances of the case. Finally, the appeal is moot, in light of the recent regulatory amendments enacted by the Government, which provide access to a legal source of supply of marihuana for medical purposes and repeal the second specialist requirement. B. THE GOVERNMENT'S MEDICAL MARIHUANA PROGRAM --------------------------------------------- 5. In March 1999, Health Canada announced that it had established a $7.5 million program, the Medical Marijuana Research Program, to promote research and fund clinical trials into the medical use of marihuana. Since there were few sources of research-grade marihuana anywhere in the world, in Spring 2000, Health Canada issued a request for proposals to cultivate marihuana. Prairie Plant Systems Inc. ("PPS") submitted a proposal. 6. On July 31 2000, the Ontario Court of Appeal in R. v. Parker, held that the criminal prohibition against the possession of marihuana in section 4 of the CDSA was of no force and effect in the absence of a constitutionally acceptable medical exemption from that prohibition. The Court, however, suspended its declaration of invalidity for a period of one year to provide the Government with sufficient time to address the constitutional deficiency. 7. In December 2000,the Government announced that it had entered into a five-year contract with PPS to produce a domestic supply of research-grade marihuana for the Government. As a condition of the contract, PPS was required to meet various regulatory requirements to ensure that the marihuana produced under the contract would be suitable for human consumption. 8. In July 2001, prior to the expiry of the one year suspension period granted by the Court in Parker, the Government promulgated the MMAR, which permitted, in certain circumstances, the possession and production of marihuana for medical purposes. 9. The use of marihuana for medical purposes is controversial, as the safety and efficacy of marihuana as a therapeutic product has yet to be established through clinical trials, and marihuana has not been approved as a drug for therapeutic purposes anywhere in the world. The MMAR established three categories of candidates for medical marihuana: (1) Category 1 patients, individuals with a prognosis of death within 12 months, where the support of a general practitioner was sufficient to obtain an authorization to possess marihuana for medical purposes ("ATP"); (2) Category 2 patients, individuals who suffer from specific symptoms associated with certain specified serious chronic conditions, where the support of a specialist was required, and; (3) Category 3 patients, individuals who have symptoms associated with medical conditions other than those in the other two categories,where the support of two specialists was required. If an applicant met the criteria established by the MMAR, the Minister of Health was required to issue an ATP and, if requested, a Personal-use Production License (PPL). Individuals who obtained an ATP but were unable to grow marihuana on their own were also able to request a Designated-person Production Licence ("DPL") to allow another individual to grow marihuana on their behalf. 10. Certain restrictions were placed on DPL holders under the MMAR. They could not receive compensation for growing marihuana and supplying it to an ATP holder (s.34(2)), they could not grow marihuana for more than one ATP holder (s.41(b)), and a DPL holder was not permitted to grow marihuana in common with more than two other DPL holders (s.54). 11. PPS encountered setbacks in developing the research- grade marihuana under the contract awarded to it by Health Canada. Attempts by PPS to secure seeds from various locations around the world did not meet with success, as it was discovered that seed banks were not well maintained. In March 2001, PPS asked Health Canada to assist in securing a source of seeds. Efforts to obtain seeds from sources outside Canada were fruitless and, in July 2001, Health Canada provided PPS with seeds that had been seized in police drug seizures. When these seeds were cultivated, they produced over 1000 genotypes of varying characteristics. This was a setback,as work had to then be undertaken to characterize the plants and determine which strains would be appropriate for use. In 2002, PPS eventually located two strains of marihuana that demonstrated promise. 12. PPS also had to take steps to meet requirements for the production of a research-grade product, meet regulatory requirements and develop tests to ensure the marihuana product was free of contaminants that might pose a significant risk to the health of seriously ill individuals who would eventually be consuming the product. PPS did not expect the be compliant with all of the various requirements until the end of 2002. C. DECISION OF THE SUPERIOR COURT OF ONTARIO (LEDERMAN, J.) ----------------------------------------------------------- 13. In 2002, the Applicants commenced an application in the Superior Court of Ontario, seeking a declaration that the MMAR were invalid and of no force and effect. The Applicants also sought a declaration that the prohibition against possession of marihuana in section 4 of the CDSA was invalid and of no force and effect. In the alternative, the Applicants sought a mandatory order directing the Government to provide the Applicants with research-grade marihuana being cultivated by PPS. The Applicants did not request that the court maintain on-going supervision to monitor compliance with any order that might be made. 14. The Applicants asserted that the MMAR imposed too many barriers and restricted their access to marihuana for medical purposes, because the MMAR required that individuals seeking authorizations obtain the support of physicians or specialists and that daily dosage limits be recommended by the physician/specialist (the "eligibility requirements"). They argued that the eligibility requirements threw up so many barriers to access that they amounted to a bad faith, illusory exemption to criminal liability. They also contended that the MMAR were constitutionally deficient in that the regulations failed to provide for a legal source and supply of marihuana. 15. Lederman, J. found, on the evidence, that the eligibility requirements were neither arbitrary, nor unrelated to the objectives of the MMAR. He found that many individuals, notwithstanding concerns expressed by medical and physicians' associations, were in fact obtaining ATPs. 16. He went on to find, however, that the MMAR offended section 7 of the Charter because the regulations failed to provide for a legal source of marihuana plant material or seeds for growing marihuana. 17. Lederman J. determined that it was not appropriate to grant injunctive relief requiring the government to distribute the marihuana cultivated by PPS to the Applicants and other individuals authorized to use it for medical purposes. He considered whether it was appropriate to read in some form of access to lawful marihuana and rejected that approach as well. Lederman J. stated: [185] After considering the test set out in Schachter, supra at 718, I find reading in a legal form of access to marijuana to be an inappropriate remedy in this case. In light of the careful balancing of policy considerations which have gone into formulating the MMAR and interlocking drug laws, and the numerous options which remain open to the government to remedy the lack of a legal source and supply of marijuana, reading in would constitute an unacceptable intrusion into the legislative domain. [186] The respondent may, for instance, wish to continue to utilize PPS or some other entity to grow medical marijuana and provide a legal source of seeds. As far as the distribution of marijuana to qualified users is concerned, the government might consider creating properly regulated distribution centres or licensing compassion clubs, as proposed in the recent Report of the Senate Special Committee on Illegal Drugs: Cannabis. As the applicants suggest, the Special Access Program may also offer a mechanism for distributing a safe and reliable supply of medical marijuana. [187] But ultimately it is up to the government - and not the courts - to decide how to create an appropriate legal source and supply of marijuana.. 18. In order to provide the government with the flexibility necessary to fashion a response suited to the circumstances, the trial judge determined that the appropriate relief was declaratory in nature. Lederman J. granted an order declaring the MMAR invalid, but suspended his order for six months to provide the government with "time to fix the MMAR or otherwise provide for a legal source and supply." D. THE DECISION OF THE COURT OF APPEAL FOR ONTARIO (DOHERTY, GOUDGE AND SIMMONS, JJA) -------------------------------------------------- 19. The Crown appealed, alleging error in the holding that the failure to provide a legal source of medical marihuana constituted a violation of section 7 of the Charter. The Applicants cross-appealed, alleging that Lederman J. had erred in holding that the eligibility requirements in the MMAR did not contravene section 7 of the Charter, and requested orders declaring the MMAR and the prohibition against the possession of marihuana in the CDSA invalid. In their factum, the Applicants sought alternative relief and requested that the Court of Appeal "order the Government to facilitate the supply of marijuana that has been grown and stored by PPS to those Canadians who are in possession of lawful medical exemptions." Again, the Applicants did not request that the Court of Appeal retain jurisdiction, or remit the matter back to the trial judge to retain jurisdiction, to monitor compliance with any order made by the Court. [Note: On July 8 2003, prior to the expiry of the six-month suspension of the declaration of Lederman J., the Government enacted a regulations and policy (hereinafter, the "Interim Policy") to make available to ATP holders marihuana and marijuana seeds that were produced by PPS. this was done to maintain the MMAR in force pending clarification of the role and responsibilities of the Government in relation to the supply of marihuana for medical purposes. The Interim Policy was placed before the Court, but the parties did not ask the Court to opine on the constitutionality of the Interim Policy.] 20. The Court of Appeal for Ontario dismissed the Respondent's appeal and allowed the Applicants' cross-appeal in part. The Court found that one of the eligibility requirements, the requirement of the second specialist, was arbitrary and in violation of section 7 of the Charter. The Court also determined that the rule of law, as a principle of fundamental justice, required that the state both obey, and promote compliance with, the law. The MMAR insofar as they were dependent on the illicit market to act as a source of supply to authorization holders, ran contrary to the principle of the rule of law. The Court concluded that a scheme which does not provide for lawful access to medical marihuana is inconsistent with s.7 of the Charter. 21. The Court, however, determined that the remedy contended for by the Applicants, a declaration that the MMAR were invalid in their entirety coupled with a declaration that the marijuana possession prohibition was invalid, was overly broad: [155] We find the remedy contended for by the Hitzig applicants to be overly broad and inadequately tailored to the constitutional deficiencies in the MMAR. Section 52(1) of the Constitution Act, 1982 requires the court to strike down any law that is inconsistent with the Constitution, but only "to the extent of the inconsistency". This invites some precision in selecting a remedy. [156] Dealing first with the eligibility deficiencies in the MMAR, it is true that the declarations sought by these applicants have the effect of removing the barrier of criminal sanction for possession of marihuana by those in medical need of it. However, the remedy proposed by the respondents achieves this result only by striking down the MMAR in their entirety and by coupling this with the invalidation of the marihuana prohibition in s. 4 of the CDSA. The latter declaration would exempt from criminal sanction all those who possess marihuana, not just those who must do so out of medical necessity. Thus, the remedy sought goes well beyond the eligibility deficiencies in the medical exemption crafted by the appellant. In that sense the remedy sought by these respondents is simply too broad. [157] Turning to the supply deficiency in the MMAR, the remedy proposed by these respondents does nothing to address this constitutional defect. Even if the entirety of the MMAR and the marihuana prohibition in s. 4 of the CDSA were declared invalid, those with a medical need for marihuana would remain without a licit source of supply. The proposed solution is simply not tailored to meet that problem. [158] Rather, we think that the remedy must be more specifically targeted to the constitutional shortcomings that we have identified in the MMAR. 22. The Court, therefore, declared the provisions relating to the second specialist requirement (s.4(2)) and s.7) invalid, and also declared invalid the restrictions on DPL holders (see para. 10 above) which the Applicants had identified as barriers in the MMAR to the creation of a licit source of supply.22 ["Indeed, when asked in argument which specific barriers had to be removed to provide for a lawful source of supply, counsel for the Hitzig applicants immediately cited these provisions"] The Court stated: [166] The declarations of invalidity we propose remove the single unconstitutional barrier to eligibility and sufficient barriers to supply that ATP holders will be reasonably able to meet their medical needs from licit sources. As a result, the MMAR as modified become a constitutionally sound medical exemption to the marihuana prohibition in s. 4 of the CDSA... 23. The Court of Appeal declined to suspend the declarations of invalidity. However, the Court explicitly acknowledged that the Government could choose other means for resolving the constitutional deficiencies that the Court found in the MMAR: [172] ...we acknowledge that the Government could choose to address the constitutional difficulty by adopting an approach fundamentally different from that contemplated in the MMAR. The alternatives range from the Government acting as the sole provider, to the decriminalization of all transactions that provide marihuana to an ATP holder. Indeed, even if the Government is content with the solution contained in the MMAR as modified by our order, it may seek to impose reasonable limits, provided they do not impede an effective licit supply, for example on the amount of compensation that a DPL holder can claim or on the size of the operation that a DPL holder can undertake. [173] If the Government wishes to adopt any of these alternatives, that decision could be taken quickly, given the obvious thought that has gone into the development of its policy on the medical use of marihuana. Moreover, it can easily be implemented with dispatch, simply by regulation. An amendment to the CDSA is not necessary. In the meantime, the constitutional rights of those in medical need will be respected. E. SUBSEQUENT DEVELOPMENTS -------------------------- 24. In response to the decision of the Court of Appeal, on December 3, 2003, the Government amended the MMAR to repeal the second specialist requirement and repeal the provision that prevented DPL holders from receiving consideration, thereby giving national effect to these aspects of the remedy crafted by the Court of Appeal. The striking down of the provisions restricting a DPL holder to producing for one ATP holder, and limiting a DPL holder to cultivation in common with no more than two other DPL holders, was considered sufficiently problematic as to be untenable. These restrictions were therefore reinstated but the MMAR were also amended to reflect the availability of the Government supply of marihuana for ATP holders, and thereby provide ATP holders with access to a legal source of supply. 25. The time period within which to seek leave to appeal this decision expired on December 8 2003. 26. On January 7, 2004, the Applicants served and filed the within application for leave to appeal to this Honourable Court. PART II - QUESTIONS IN ISSUE ---------------------------- 27. The Respondent submits that the simple issue that arises on this Application for Leave to Appeal is whether a question of law of national or public importance arises in the circumstances of the case. PART III - ARGUMENT ------------------- (1) There is no question of national or public importance 28. The leave application does not give rise to a question of national or public importance. Indeed, the proposed appeal is now moot. The Courts below found constitutional deficiencies with the MMAR and the Government has responded to those deficiencies with amendments to the MMAR that address them. Individuals seeking authorizations to possess marihuana for medical purposes no longer need to secure the support of two specialists, and the Government supply of marihuana seeds and plant material is available to any authorization holder who does not have access to a lawful supply of marihuana. The Government response, therefore, is wholly consistent with the constitutional principle established by the Court of Appeal that individuals have reasonable access to a lawful source of marijuana for medical purposes. As demonstrated by subsequent developments, there was no need, and it would have been inappropriate, for the Courts below to go beyond granting declaratory relief to maintain some form of on-going supervisory jurisdiction over the MMAR. Furthermore, as discussed below, the Court of Appeal did not err. (2) The Court of Appeal did not err. 29. As this Court stated in Doucet-Boudreau v. Nova Scotia (Minister of Education), appellate courts should show considerable deference to a trial judge's choice of remedy, and should refrain from using hindsight to perfect a remedy. A reviewing court should only interfere where the trial judge has committed an error of law or error in principle. 30. The Court of Appeal did not err, either in law or in principle, in granting the relief it did. Indeed, the Applicants do not take issue with the actual declarations of invalidity granted by the Court below. They would have been hard-pressed to do so, given that declaratory relief was the primary relief sought by them, and the provisions declared invalid by the Court of Appeal were those specifically identified by the Applicants in argument as the barriers that operated to prevent the creation of a legal source of medical marihuana in Canada. 31.The Applicants cannot now be heard to say that the remedy granted by the Court of Appeal was inappropriate or unjust to the circumstances. A remedy is appropriate and just if it: is responsive and effective to vindicate the rights of the claimant; uses means that respect the relationships with, and separation of functions among, the legislature, the executive and the judiciary; does not involve the court in decisions or functions ill-suited to its capacities and competence; and, is fair to the party against whom the order is made: Doucet-Boudreau, para.55-58. 32. The courts below declined to grant a mandatory order compelling Government to supply medical marihuana to the Applicants, in favour of granting declaratory relief. The granting of declaratory relief in the circumstances of the case on appeal was wholly consistent with the approach taken by this Court in constitutional cases where the nature and scope of rights under the Charter were in issue: Mahe v. Alberta [1990] 1 S.C.R.342; Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624. 33. As of the date of judgment, the declaratory relief had the effect of removing the second specialist requirement and removing the state barriers to the creation of a legal source of medical marihuana. The remedy granted by the Court of Appeal was, therefore, both responsive and effective: Doucet-Boudreau, para. 25. 34. As recognized by both courts below, the Government had a variety of options available to address the issue of lawful supply, one of which was the Government acting as the sole provider of medical marijuana. In contrast to the many policy and legislative choices available to the Government to address the issue of lawful supply, the courts were restricted to two narrow options - declaring certain provisions of the MMAR invalid, or granting a mandatory order compelling Government to act as the supplier. Although the Government subsequently revised the remedy crafted by the Court to address lawful supply, in favour of another option that was available to the Government,this does not call into question the effectiveness of the remedy that was crafted by the Court below. Rather it affirms the effectiveness of the remedy granted by the Court, since the Government acted promptly to address the issue of lawful supply in a manner that is in conformity with the constitutional principle articulated in the case. 35. Indeed, it would have been inappropriate for the court below to grant a "supervisory order of the type at issue in Doucet-Boudreau. The supervisory order at issue in Doucet- Boudreau was issued in support of injunctive relief that required the construction of French-language schools by a particular date. Here, though, there was nothing for the courts below to supervise. The Order made by the Court of Appeal granted declarations of invalidity that were effective as of the date of the judgment. There was no need to monitor compliance with the Order because the Order did not required that the Government do anything. 36. The Applicants, however, appear to want the courts to micromanage the government's medical marihuana program, by maintaining on-going supervision over any legislative and policy developments in this area. This is clear from the complaints the Applicants not raise, concerning the Government's decision to amend the regulatory framework to address the issue of lawful supply. The Applicants would have the Court of Appeal, or perhaps the trial court, maintain on-going supervision of the Government's response to the constitutional remedy imposed by the courts. 37. The lack of precision and degree of uncertainty associated with the remedy sought by the Applicants on this leave application highlights the inappropriateness of the relief sought by them. As this Court noted in Doucet- Boudreau, courts must not, in making orders under s.24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes. A monitoring order, as sought by the Applicants, would indeed result in such an unwarranted departure. Not only would such an order amount to an unwarranted intrusion into the development of the Government's medical marihuana program, it is not supported by the record. 38. The record demonstrates that the Government has been responsive to court decisions and moving in a timely manner to deal with a challenging and complex issue. As the Court of Appeal recognized in its decision, the Government took its first steps towards developing a legislative response to the demand for medical marihuana, well before the Court of Appeal's decision in Parker. The Government developed and promulgated regulations to address the constitutional deficiency identified by the Court in Parker within the period of suspension granted by the Court. The Government also responds to the declaration of invalidity made by Lederman J., by developing an interim policy to provide ATP holders with access to the government supply of marihuana pending clarification of the role and responsibilities of the Government in this area. Finally, the Government responded within two months to the judgment of the Court of Appeal in this case, with amendments to the regulatory framework that have given certain aspects of the judgment national effect across Canada, and ensure that all ATP holders throughout Canada have access to the Government supply of medical marihuana. This is hardly the picture of a reluctant or recalcitrant government. 39. Furthermore, although the Applicants, through Mr. Young's affidavit, recite a litany of complaints about the Government's medical marihuana program, those complaints were fully aired in the courts below and did not lead to any findings that support the Applicants' position that the Government has not been acting in good faith. To the contrary, the Court of Appeal recognized the complexity of the problem confronting the government in developing and implementing a policy in respect of a controversial drug that had not been tested in accordance with the usual drug approval process: [8] ..In 1999 the Government began to develop a policy with respect to the use of marihuana for medical purposes. That policy is a work in progress. Some of those who are seriously ill and gain significant relief from some of their symptoms by using marihuana see the government policy as a mean-spirited and grudging attempt to do only what the law absolutely demands. "This viewpoint is understandable but ignores the complexity of the problem faced by the Government." (emphasis added) 40. The Applicants also now, in Mr. Young's affidavit, advance complaints about the quality of the marihuana produced by PPS (which is surprising since they repeatedly sought access to that same marihuana in the courts below). But not only is this new evidence, introduced for the first time on appeal, the complaints now embrace new constitutional issues, such as whether the Applicants are constitutionally entitled to receive particular blends or strains of marihuana, which can only be decided on a proper evidentiary record in the appropriate forum: a trial court. 41. Finally, the fact that the Applicants seek leave to raise a new issue that was never argued in the courts below militates against granting leave. The "supervisory order of the type at issue in Doucet-Boudreau," like any other remedy, can only be made on the basis of appropriate findings of fact and a proper evidentiary record. However, because the Applicants did not raise the issue in either of the courts below, the issue was never explored and this Court is denied the benefit of rulings of the lower courts on this point: Giguere v. Chambres des notaires du Quebec, 204 SCC 1 at para.34; Danson v. Ontario (Attorney General) [1990] 2 S.C.R. 1086 at pp.1199-1101; Mackay v. Manitoba [1989] 2 S.C.R. 357 at pp.361-63; and R. v. Amway Corp [1989] 1 S.C.R. 21 at p 42. PART IV - SUBMISSIONS CONCERNING COSTS -------------------------------------- 42. There is no reason to depart from the ordinary rule that costs should follow the event. PART V - ORDER REQUESTED ------------------------ The Respondent respectfully request that the within application for leave to appeal be dismissed with costs. ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this 4th day of February 2004. Croft Michaelson Christopher Leafloor Vanita Goela Of counsel for the Respondent ------------------------------- IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal for Ontario) BETWEEN: HER MAJESTY THE QUEEN Respondent AND WARREN HITZIG, ALISON MYRDEN, MARY-LYNNE CHAMNEY CATHERINE DEVRIES, JARI DVORAK, STEPHEN VAN DE KEMP, DEBORAH ANNE STULTZ-GIFFIN & MARCO RENDA Applicants REPLY Reply to Respondent's argument: 1. While the Respondent is correct to observe that the Applicants persuaded both of the Courts below that the MMAR violated their s.7 Charter rights, it remains to be seen whether the Applicants were truly the "successful litigants": see Para.2 of Respondent's Crown Factum. The Applicants' Charter claim was twofold: first, that the MMAR unconstitutionally deprived many seriously ill from becoming eligible to lawfully obtain medicinal marihuana and second, that the combined effect of the MMAR and the CDSA, served to deprive authorized medical users with a safe and reliable supply of marijuana. Rather than adhere to the remedy which the Court of Appeal determined would best remedy the constitutional deficiencies of the MMAR on the "supply" issue, the Government has chosen to implement its own solution to the very serious problems created by the MMAR. In other words, despite being the "successful litigant", it may well be that the Applicants victory is pyrrhic in so far as the Government's new scheme, in contrast to the Court of Appeal's proposed remedy, has not been measured up against the Charter. JCT: That's what the Crown is saying. You have no evidence at this level to measure. 2. Nevertheless, rather than allow for a means by which the courts could efficiently and expeditiously review the constitutional sufficiency of its alternative remedy, the Respondent advocates an approach which would require the Applicants, or others similarly situated, to start the entire process from the beginning; that is, fresh litigation would have to be launched with the consequent affidavits, cross-examinations and education of a new judge about the lengthy history of this issue. The only one to benefit from such an approach is the Government: it manages to avoid having its most recent medical marihuana scheme subjected to Charter scrutiny unless and until a new group of public interest litigants can muster the resources and the energy to begin again. JCT: Paul's complaining that they've been stale-mated by the and have to start again. That's what they deserve for not aiming on goal. Indeed, the Respondent's request for "costs" should it succeed in defeating this leave application is a paradigmatic example of the Government's attempts to use the costs of litigation to deter Charter challenges to its most recent reluctant effort at designing a constitutionally adequate medical marihuana scheme. 3. The Respondent is correct to assert that the Applicants have applied to this Court for leave to appeal seeking a remedy of the type which this Court first recognized in Doucet-Boudreau, a remedy which the Applicants did not seek in the Court below. However, there is no reason to deny the Applicants an opportunity to make their case for why they should be entitled to the benefit of this change in the law. Their case is still within the system. The hearing in the Court below took place in July 2003. The Court of Appeal's judgment was rendered on October 7 2003. This Court did not release its decision in Doucet-Boudreau until November 6 2003. The majority of the New Brunswick Court of Appeal had strongly rejected the type of remedy ultimately recognized by this Court in Doucet-Boudreau. The Applicants can hardly be faulted for not having raised the issue before the Court of Appeal. Indeed, the remedy sought by the Applicants on appeal in the Court below - namely, a declaration of invalidity of the entire MMAR and, consequently, of the criminal prohibition on marihuana possession - obviated the need to seed an order for ongoing judicial supervision. JCT: The "consequently" part is the part we argued. And won. Had the Applicants truly "succeeded" in the Court below, there would have been nothing left for the courts to supervise as the Court of Appeal would have declared the criminal prohibition on marijuana to be of no force and effect. JCT: I guess Paul forgot that Parker's Court did that in 2001. Instead, the Court of Appeal, on its own initiative, decided that severance of certain sections in the MMAR would adequately address the constitutional infirmities. The Government, however, has opted for a difficult approach than that proposed by the Court of Appeal. That is why further judicial scrutiny may be necessary. 4. The Respondent correctly observes that, in their original Notice of (Constitutional) Application, the Applicants had inter alia sought an order compelling the Government to supply authorized medical users with marijuana. Based on the limited information available to them when the Applicants first formulated the remedies they believed would be "appropriate" (i.e. May 23 2002), they believed that a court order compelling the Government to supply authorized medical users would be the most effective way to address the constitutional deficiencies of the MMAR. However, in view of the remedy crafted by the Court of Appeal, after its careful consideration of the evidence presented, the Applicants acknowledged that a Government-supply may be neither an effective nor an appropriate constitutional remedy. The whole point of an order allowing for ongoing judicial supervision of the Government's response to the Court of Appeal's decision would be to determine, in an effective and expeditious manner, whether the Government's decision to ignore the Court of Appeal's remedy has nevertheless resulted in a constitutionally sufficient response to the Charter deficiencies of the MMAR. Reply on the Issue of Costs 5.At Para. 42 of its Factum, the Respondent claims "[t]here is no reason to depart from the ordinary rule that costs should follow the event." As noted above, the Applicants respectfully submit that the Government's position on "costs" in this case is an unfortunate representation of the Government's position on the issue of medicinal marijuana. First, the Respondent is fully aware from the evidence adduced in the courts below that all but one of the Applicants suffer from serious medical ailments and have limited financial means (as most are on various forms of disability pensions). Indeed, as Lederman J. observed in his Reasons for Judgment, one of the principal complaints of the Applicants Chamney, Dvorak,Stultz-Giffen and Myrden, is "the high cost of purchasing black market marijuana and the risks associated with it." As for the Applicant Hitzig, Lederman J.'s observations concerning his circumstances equally underscore the inappropriateness of the Respondent's request for costs on this Leave Application: One of the represented applicants, Warren Hitzig, is a caregiver who produces and distributes marijuana to individuals suffering from major illnesses, such as his co-applicants. Although he does not require marijuana for his own medical purposes, he seeks to be free from the CDSA and MMAR's continued prohibition of compassion clubs. Until he was recently charged with trafficking and related offences, Mr. Hitzig operated the Toronto Compassion Center. He established his not-for- profit organization in 1998 to provide seriously ill people with a safe and reliable supply of cannabis and to provide the general public with information on the therapeutic use of marijuana. Not only are the Applicants of limited financial means, they are also not the type of litigants from whom the Government should seek an order of costs. Throughout this litigation, the Applicants have clearly maintained their role as public interest litigants and not as a group of individuals seeking only to obtain a benefit for themselves. Most importantly, however, the Respondent's claim that there is "no reason to depart from the ordinary rule that costs should follow the event," blithely ignores the fact that the Applicants, as public interest litigants, have twice succeeded in "the event" (i.e. before Lederman J. and before the Court of Appeal) and have not sought (nor been granted) costs from the Respondent. ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this 10th day of February 2004. Paul Burstein, Counsel for the Applicants HITZIG, MYRDEN, CHAMNEY, DEVRIES, DVORAK, VAN DE KEMP, STULTZ-GIFFIN & RENDA