No: 29569 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA) BETWEEN: HER MAJESTY THE QUEEN APPLICANT AND GRANT WAYNE KRIEGER RESPONDENT NOTICE OF APPLICATION FOR LEAVE TO APPEAL ----------------------------------------- TAKE NOTICE that the Applicant hereby applies to this Court pursuant to section 693(1)(b) of the Criminal Code of Canada for an order granting leave to appeal from the Order of the Court of Appeal for Alberta, dated the 4th day of December 2002, dismissing an appeal from a stay of proceedings by the Honourable Madam Justice Acton, on the 11th day of December 2000. AND FURTHER TAKE NOTICE that the following documents will be referred to in support of such application for leave: (a) Indictment (September 29 1999); (b) Voir Dire Ruling (Acton J.) (December 11 2000); (c) Formal Order (O'Leary J.A.) (November 28 2001); (d) Reasons for Judgment (Alta.C.A.) (March 18 2001); (e) Formal Order (Alta.C.A.) (December 4 2002); (f) R. v. Parker (2000) 146 C.C.C.(3d) 191 (Ont.C.A.); and such further and other material as counsel may advise and may be permitted. AND FURTHER TAKE NOTICE that the said application for leave shall b e made on the following grounds: (a) That the Court of Appeal for Alberta erred in law in holding that s.7 of the Charter guarantees the right to grow (and by implication, possess) marihuana, to anyone with a medical need for this drug; and (b) that the Court of Appeal for Alberta erred in law in holding that, by reason of s.7 of the Charter, to sustain the validity of the general prohibition on the production (and by implication, possession) of marihuana, the government of Canada is obliged to ensure a legal, safe and reliable source and supply of this drug for anyone with a medical need for it. Dated at the City of Vancouver in the Province of British Columbia this 16th day of May 2003. Morris Rosenberg per S. Dil Zhil(?) Deputy Attorney General of Canada Solicitor for the Applicant TO: REGISTRAR OF THIS COURT AND TO: VAN HARTEN, O'GORMAN FOSTER, IOVINELLI Barristers & Solicitors 1206, 734-7th Avenue S.W. Calgary Alberta T2P 3P8 Per: Adriano Iovinelli Solicitors for the Respondent NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in reply to this application for leave within 30 days after service of the application. If no reply is filed in that time, the Registrar will submit this application for leave to the Court for consideration pursuant to s.43 of the Supreme Court Act. APPLICANT'S MEMORANDUM PART I Introduction ------------ 1. The decision of the Court of Appeal raises two issues of national importance, both of which have significant implications to the ability of Parliament and the federal government to regulate and control drugs that have not been approved for medical use in Canada. 2. The primary issue is whether a general prohibition with respect to a non-approved drug violates s.7 of the Charter because the drug can afford some measure of relief to certain persons. More specifically, given the proceedings below, the question of whether "liberty" and "security of the person" interests are infringed in a manner that is not in accord with the principles of fundamental justice by s.7(1) of the Controlled Drugs and Substances Act, which make it an offence to produce (i.e. cultivate) marijuana. (For the same reasons, this matter also engages the question of whether the prohibition on possession of marijuana (i.e. s.4(1) of the Act) is unconstitutional.) 3. Equally important is the question of whether the availability of a ministerial exemption under s.56 of the Act from the prohibitions is on possession and / or production of marijuana sufficiently addresses the needs of persons who can demonstrate a medical need for this substance, or whether it is also incumbent on the state to provide a legal source of supply. Overview ------------ 4. This application is brought by the Crown, pursuant to s.693(1)(b) of the Criminal Code, for leave to appeal the judgment of the Court of Appeal for Alberta (Costigan J.A, Witmann and LoVecchio JJ.A. concurring), dismissing the Applicant's appeal from the order of Acton J. staying proceedings against the Respondent on a charge of production (i.e. cultivation) of marihuana. - Notice of Application for Leave to Appeal, M.B. Tab1; Indictment, M.B. Tab2; Voir Dire ruling (Acton J.) M.B. Tab3; Reasons for Judgment (Alta.C.A.), M.B. Tab5; Formal Order (Alta.C.A.), M.B, Tab6 5. As a result of the discovery of a marijuana "grow" operation at the respondent's residence on August 25 1999, he was charged with both possession of marijuana for the purpose of trafficking (Count 1) and production of cannabis (Count 2), the latter being contrary to section 5(2) of the Controlled Drugs and Substances Act. (Note: It was agreed that the Respondent was growing marihuana for the purpose of distributing it to others. Voir Dire Ruling (Acton J.) M.B. Tab3, subpara. 12.) 6. At trial, the Respondent challenged the constitutional validity of both provisions, alleging that they violated s.7 of the Charter. These were based on his alleged personal medical need to use marihuana, and his desire to provide this drug to others with similar needs. 7. On Dec. 11 2000, the trial judge upheld the challenge to s.7(1) and declared it to be of no force and effect. She suspended this declaration for one year, to provide the federal government with an opportunity to address the matter. In addition, she stayed the production charge, and granted the Respondent an exemption from s.7(1) during the period of suspended invalidity. Voir Dire Ruling (Acton J.) M.B. Tab3 8. The trial continued on the possession for the purpose of trafficking charge, with the Respondent advancing the defence of necessity. A jury found him not guilty. A jury found Ray Turmel guilty of the same thing. The Crown appealed both the judicial stay and the acquittal. 9. On November 29 2001, prior to the hearing of the appeal, O'Leary J.A. (in Chambers) granted an application brought by the Crown extending the operative period of both the suspension of invalidity and the Respondent's constitutional exemption until further order of the Court of Appeal. 10. On December 4, 2002, the Court of Appeal dismissed the Crown's appeal from the judicial stay on the production charge from the bench. However, it found that the trial Judge had erred in instructing the jury on the defence of necessity. Accordingly, it set aside the acquittal and ordered a new trial on the charge of possession for the purpose of trafficking. Written reasons were released March 18 2003. - Reasons for judgment (Alta.C.A.) Tab 5 11. The Court of Appeal did not deal with O'Leary J.A.'s Order. Accordingly, it remains an offence to grow marihuana in Alberta unless a person has obtained a ministerial or judicial exemption. (Note: The latter charge is not in issue on this application.) If the suspension order were to be vacated, then there would be no prohibition whatsoever on the cultivation of marijuana in the province. Relevant Statutory and Constitutional Provisions ---------------------------------------------------- 12. Controlled Drugs and Substances Act: 7.(1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, or IV. (2) Every person who contravenes subsection (1) (b) where the subject-matter of the offence is cannabis (marihuana) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 7 years 56. The Minister [of Health] may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations, if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. 13. Canadian Charter of Rights and Freedoms: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 14. Constitution Act, 1982, Part VII: 52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Respondent's Condition / Methods of Treatment --------------------------------------------- 15. The Respondent was diagnosed with multiple sclerosis in 1992. His major complaint is that this condition, combined with the effects of his having been in automobile accidents, results in chronic and painful muscle spasms, which adversely affect his quality of life. 16. Between 1992 and 1994 his condition was treated by physiotherapy and prescribed medications (e.g., Prednisone, Demerol, and Restoril). He began using marihuana for pain management in October 1994, after an acquaintance recommended it to him. He took no more prednisone after October 1994. 17. He was prescribed Baclofren to relieve muscle spasms in October 1994. Although the dosage was increased twice, he continued to complain about pain. 18. The Respondent testified that he suffered numerous side effects from the medication he was prescribed, including fatigue, bowel control problems, and lack of motor control (i.e., shaking). 19. The Respondent attempted to commit suicide in December 1994. He stated that this was because he could not control his pain, his walking was severely impeded, and he was losing control of his bowel and bladder. 20. Following his attempt at suicide, the Respondent abandoned both physiotherapy and the use of conventional pharmaceuticals, opting instead to rely solely on deep massage and marihuana to control his symptoms. Aside from two occasions in 1995 and 1996 when he was prescribed morphine and took Tylenol 3, he has not taken pharmaceuticals to supplement or replace his use of marihuana. He testified that marihuana controls his spasms such that he can walk without the aid of crutches. 21. The Respondent has never tried pharmaceuticals such as Marinol and Cesamet, which contain synthetic Tetrahydrocannabinol ("T.H.C."), i.e., the psychoactive compound found in marihuana. In 1996 and 1997, while living in Saskatchewan, he was prescribed Marinol. However, his pharmacist would not fill the prescription, as a doctor who was not licensed to prescribe his drug wrote it. The Respondent made no effort to secure a prescription for these drugs after moving to Calgary in 1998. He testified he has no interest in trying synthetic T.H.C. or any other pharmaceutical, as he prefers to use a natural plant. (Note: Dr. Kalant, who was called by the Crown (see paras 24 below), stated that, to his knowledge, Marinol is available throughout Canada and can be prescribed by any licensed medical doctor.) 22. The Respondent never applied under s.56 of the Controlled Drugs and Substances Act for a ministerial exemption permitting him to grow and possess marihuana for his own therapeutic purposes. Another person with multiple sclerosis told him her application had been denied. In this connection he testified, in-chief: Q: What was your opinion on making a section 56 application having that knowledge? A: I'm not going to bother. I'm not going to be rejected. Why waste time filling out the paperwork? 23. Dr. Todd Gash, a family physician, saw the Respondent on eight occasions between October 1998 and October 2000. The Respondent advised him that he was treating his symptoms only with marijuana. The Respondent did not request, nor did Dr. Gash discuss, other treatments. The Respondent's condition remained stable during this period. Dr. Gash did not want to prescribe medication the Respondent would not take. Marihuana as Medication ----------------------- 24. The Crown called Dr. Kalant, an expert in the fields of general medicine, medical pharmacology, and, more particularly, the pharmacology of marihuana. His testimony was based, in part, on his review of the Respondent's medical records, as well as the evidence given by Dr. Gash. 25. Dr. Kalant identified a number of possible adverse effects arising from the consumption of marihuana including (a) pulmonary damage caused by smoking, (b) acute side effects from the ingestion of T.H.C. such as impairment of motor skills, short-term memory loss, anxiety and panic attack leading to short-term psychosis; increased heart rate that may increase heart attack in middle-aged users who already have some degree of narrowing of coronary arteries, (c) chronic effects of long-term use, including impairment of memory; decrease in verbal fluency, learning difficulties, mild physical and psychological dependence, possible relapse in persons suffering from schzophrenia, and possible psychoses brought on by chronically high levels of the drug in the body. 26. Although T.H.C. has been shown to have some therapeutic value, the information available is inadequate and further clinical study is required to determine whether it will ultimately be accepted for medical use. Currently, there is disagreement in the scientific community as to some of the alleged benefits particularly with respect to treatment of epilepsy and asthma. 27. At the present time, two forms of T.H.C. are available throughout Canada by prescription, i.e., Marinol (a synthetic form of T.H.C.) and Cesamet (a T.H.C. analogue.) In Dr. Kalant's opinion both are treatment options for the Respondent, as they have been clinically shown to effectively treat spasms and pain. Dr. Kalant further stated that the Respondent might benefit by using one of these in combination with other available pharmaceuticals. Section 56 Exemptions --------------------- 28. It was agreed that as of October 2 2000, (i.e., 8 days before the trial commenced), the Minister of Health had issued 72 exemptions. Six requests had been, or were in the process of being, refused. Voir Dir Ruling (Acton J.), M.B.Tab3, p.9 subpara.16 Trial Judge's Ruling -------------------- (2002 ABQB 1012) 29. The trial Judge made the following findings of fact: (a) marijuana does have therapeutic effects in the treatment of nausea and vomiting related to chemotherapy and radiation, for muscle spasticity, epileptic seizures, chronic pain, and in stimulating appetite for those suffering from wasting syndrome; (b) the Respondent is able to control the symptoms of his multiple sclerosis by ingesting and smoking marihuana; (c) after discovering marihuana can control his symptoms, the Respondent made no effort to obtain synthetic forms of T.H.C. by lawful means; (d) other forms of treatment described by Dr. Kalant might, or might not, be effective; and (e) the state has legitimate health concerns in prohibiting the possession, production and trafficking in marihuana. - Voir Dire Ruling (Acton J.) Tab 3 paras 7, 10, 16, 21, 40 30. In finding the general prohibition on production of marihuana violates the "liberty" and "security of person" interests protected by s.7 of the Charter, the trial judge followed R. v. Parker (2000) 146 C.C.C. (3d) 193 (Ont.C.A.). In doing so, she stated, inter alia: [24] Section 7(1) of the CDSA deprives Mr. Krieger of the right to his choice of medication to alleviate the effects of his multiple sclerosis, a decision of fundamental importance... [28] I am of the view that Mr. Krieger has led sufficient evidence to show that he requires marihuana for his medical needs and that he should be in a position to acquire it by legal means, in this case by cultivating the plant. The fact that Mr. Krieger has not tried every conceivable combination of prescribed drugs available for alleviating the symptoms of multiple sclerosis does not preclude me from finding that he requires marihuana. Rather, his needs is evident in that he has followed the conventional form of treatment without apparent success but has found relief from his symptoms when ingesting and smoking marihuana on a regular basis. (Note: As discussed below, in Parker, supra, [above] the Court of Appeal for Ontario held that the prohibition on possession of marijuana violates s.7 of the Charter and that the exemption scheme under s.56 of the Controlled Drugs and Substances Act does not meet constitutional standards. In the result, it declared s.4 of the Act invalid in so far as it prohibits possession of marihuana but suspended the declaration for one year "to provide Parliament with the opportunity to fill the void", i.e., to address medical use. The government's response was the promulgation of the Marihuana Medical Access Regulations, SOR/2001-227, Canada Gazette Part ii Vol 135, p. 1330, on June 14 2001. As discussed below, these are presently being attacked. 31. The trial judge was also of the view that the availability of s.56 exemptions do not alter the situation. She opined that this scheme creates an "absurdity" because at the present time, there is no licit source of marihuana in Canada: [37] Although approximately 72 exemptions have been granted by the Minister of Health under s.56 of the statue, I am not satisfied that the absurdity that I mentioned above has been properly addressed. In my view, when a minister has the discretion to allow someone an exemption to produce, and use a substance for proper medical purposes, the substance must be something that is available to that individual by legal means at the time the exemption is granted. As a s.56 exemption has no practical purpose without a legal source for cannabis marihuana, s.56 cannot serve to delineate the boundaries of the Applicant's s.7 rights or to justify a violation of those boundaries. 32. In the result, the trial Judge (a) declared that s.7(1) of the Act to be of no force or effect as it relates to marihuana, (b) suspended the declaration for one year, (c) granted the Respondent an exemption from the application of s.7(1) during the period of the suspension, and (d) stayed the production charge (Count 2) as a remedy under s.24(1) of the Charter. Court of Appeal decision ------------------------ ([2002] A.J. No. 1644 (QL) 2003 ABCA 85) 33. In dismissing the Crown's appeal from the judicial stay, Costigan J.A. stated: [3] As to the voir dire ruling, the Crown says that the trial judge applied the wrong test in finding that the Respondent was deprived of his s. 7 Charter right to security of his person in the face of evidence that there were other untried and effective legal alternative treatments. We are not satisfied that the trial judge applied the wrong test, nor are we satisfied that the evidence established other effective alternatives. At best, the evidence on the effectiveness of the alternatives was equivocal. In those circumstances, the trial judge was entitled to find that the Respondent's right to security of his person was infringed by denial of a treatment which the evidence established was effective. [4] The Crown also says that the trial judge erred in failing to find that the deprivation accorded with the principles of fundamental justice. The Crown says a s. 56 exemption, for which the Respondent did not apply, would have accorded with the principles of fundamental justice because the Respondent had an available supply from his own grow operation. [5] We agree with the trial judge that s. 56 creates an absurdity because there was no legal source of marihuana. That absurdity is not removed by the fact that the Respondent had a personal supply at the time the charge was laid. There was no evidence as to how long the supply would last nor as to the duration of the potential s. 56 exemption. [6] Nor are we satisfied that the trial judge imposed a positive obligation on the Crown to ensure a supply. The trial judge struck s. 7(1). Her order imposed no obligation. [7] Therefore, we dismiss the appeal as it relates to the voir dire ruling. - Reasons for judgment (Alta.C.A.) Tab 4 PART II ISSUES --------------- 34. Leave is sought on the following grounds: (a) That the Court of Appeal for Alberta erred in law in holding that s.7 of the Charter guarantees the right to grow (and by implication, possess) marihuana, to anyone with a medical need for this drug; and... (b) that the Court of Appeal for Alberta erred in law in holding that, by reason of s.7 of the Charter, to sustain the validity of the general prohibition on the production (and by implication, possession) of marihuana, the government of Canada is obliged to ensure a legal, safe and reliable source and supply of this drug for anyone with a medical need for it. PART III ARGUMENTS ------------------ 47. The judgments of the Court of Appeal in this matter, and that of the Court of Appeal for Ontario in Parker, supra, hold that the general prohibition with respect to possessing and producing a controlled substance that has not been approved for medical use in this country (or anywhere in the world) is unconstitutional in toto because the legislative scheme does not, in the Court's view, adequately provide for exempting persons who derive some medical benefit from using the drug. This is evinced by the following passage from the reasons of Rosenberg J.A. in Parker: [10] I have concluded that the trial judge was right in finding that Parker needs marihuana to control the symptoms of his epilepsy. I have also concluded that the prohibition on the cultivation and possession of marihuana is unconstitutional. Based on principles established by the Supreme Court of Canada, particularly in R. v. Morgentaler, [1988] 1 S.C.R. 30, where the court struck down the abortion provisions of the Criminal Code, and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where the court upheld the assisted suicide offence in the Criminal Code, I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person. I have also found that these violations of Parker's rights do not accord with the principles of fundamental justice. In particular, I have concluded that the possibility of an exemption under s. 56 dependent upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice. I have not dealt with the equality argument raised by the Epilepsy Association because that argument was not raised at trial." Indeed, the judgment in the case at bar goes further, as it holds that ministerial exemptions cannot sufficiently address the issue of medicinal use unless a "legal source of supply" is available: Tab 4 para. 5. (Note: it is the Applicant's understanding that in March 2003, a regulatory scheme came into effect in The Netherlands allowing physicians to prescribe, and pharmacies to dispense, cannabis. At the same time research is to be done on whether marihuana may be used as a medicine. In many respects, this is similar to the situation in Canada under the Marihuana Medical Access Regulations, which permit individuals, in appropriate circumstances, to obtain exemptions to possess and grow marihuana, while recognizing that research is required into the efficacy and long-term risks of marihuana as a therapeutic product.) 48. In effect, the Court of Appeal for Alberta held that if there are some, albeit as yet not yet fully investigated, medical benefits from using an otherwise harmful substance, Parliament cannot prohibit its production, and by implication, its possession, unless it provides an acceptable exemption for medical use, and a source of supply for this purpose. Having regard to the role traditionally played by the state with regard to the regulation of therapeutic products, the implications of these findings are significant. 49. The use of marihuana as a therapy is a controversial issue. It is one requiring further investigation, including clinical studies to assess risks and benefits. As regulator, the government of Canada does not normally manufacture or distribute drugs to the public. Rather, acting in the public interest, it provides a framework within which drugs are developed by the private sector. Subject to approved use for emergency treatment, all pharmaceuticals are subject to a rigorous process before they can be distributed as a therapeutic product. As with other drugs, it is open to a manufacturer to seek approval through the existing framework to produce and market marihuana or marihuana derivatives. Indeed, as the record below indicates,two such products (i.e., Marinol and Cesamet) are available in Canada by prescription. See: Food and Drug Act (definition of "drug"); Food and Drug Regulations, Narcotic Control Regulations (Licenses and Licensed Dealers) 50. Judicial, as opposed to clinical, approval of marihuana as medicine has created an unworkable situation. This is evinced by R. v. Oates [2002] 11 W.W.R. 476 (Alta.Prov.Ct.) which pre-dates the Marihuana Medical Access Regulations. Like the Respondent, Oates had a "grow" operation in his residence. His defence to a charge of possession was that he required the drug to control his chronic lower back pain. However, his physician would not support his application for a s.56 exemption because both the Canadian and Alberta Medical Associations had advised their members against doing so until "better studies and sources of supply of medical marihuana are available": para. 4. Following Parker, supra, and the trial decision in the case at bar, Ketchum P.C.J. found a breach of s.7 of the Charter and disposed of the matter as follows: "13 In my judgment, the appropriate remedy for this violation of the accused's right to security of the person, is to direct a stay on Count 1 until such time as there is a government approved source of supply that has been clinically tested and has the approval of the Canadian Medical Association and the Alberta Medical Association, and this accused has had an opportunity to apply for an exemption. 51. Similar reasoning is found in Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 (Ont.S.C.J.), which deals with Charter challenges to the Marihuana Medical Access Regulations. In light of Parker, supra, the starting point for this case was that the prohibition on possession of marihuana is unconstitutional without a medical use exemption. As in Oates, supra, the medical profession's concerns regarding treating patients with an unapproved drug were noted: paras. 59-52. 52. In Hitzig, supra, Lederman J. held that the exemption process and the requirements imposed by the Regulations violate "liberty" interests, but do so consistent with the principles of fundamental justice. However, he found a violation of the "security of the person" interest inconsistent with the principles of fundamental justice, and not saved by s.1. This was because presently, there is no legal source of marihuana, or marihuana seeds in Canada. In the result he declared the Regulations invalid but suspended the declaration for six months to give "the government the time to fix the MMAR or otherwise provide a legal source and supply of the drug..": para. 190. (Note: Both the applicants and the Crown have appealed this decision: Ont.C.A. Nos. C39738, C39752, C39740. As noted at paragraph 7 of the judgment, Lederman J. did not deal with a separate issue raised by R. v. P.(J.) (2003) 3 C.R.(6th) 170 (Ont.C.J.), subsequently affirmed, (16 May 2003) Southwest Region No. 03-CR-00002 (Ont.S.C.J.) wherein the Marihuana Medical Access Regulations were found insufficient to satisfy the conditions of the suspension order in Parker, supra. In P.(J.) these were interpreted as requiring legislative, as opposed to regulatory, action within 12 months. In the result, it was held that after July 31, 2001, possession of marihuana is not an offence known to law in Ontario. The trial decision in P.(J.) has been followed in some cases (R.v. Barnes [2003] O.J. No. 261 (QL) (C.J.), R. v. Clarke [2003] N.S.J. No.124 (QL) (Prov.Ct.), R. v. Stavert [2003] P.E.I.J. No.29 (QL) (Prov.Ct.) but not in others (R. v. Hadwen [2003] S.J. No. 269, (QL) (Prov.Ct.), R. v. Nicholls, 2003 BCPC 132).) 53. It cannot be gainsaid that the Charter protects "important and fundamental life choices": Blencoe v. British Columbia (Human Rights Commission) [2002] 2.S.C.R. 307@para. 49 (per Bastarache J.). Equally, it cannot be denied this includes access to some forms of medical treatment: Rodriguez v. BC. (Attorney General) [1993] 3.S.C.R. 519@586- 588 (per Sopinka J.). However, as this Court has stated repeatedly, the application and interpretation of the Charter is contextually sensitive: R. v. Brown (2002) 210 D.L.R. (4th) 341, 2002 SCC 32@ para.95 (Per Major J.) 54. In Parker, supra, Rosenberg J.A. (at para. 102) equated using marihuana for medicinal purposes to the right to choose whether to be treated with drugs for mental illness, citing Fleming v. Reid (1991), wherein it was held that s.7 of the Chatter protects a patient's right to decide. This is an issue presently before this Court in Fleming v. Starson, No. 29799, reserved January 15 2003, on appeal from (2001) 201 D.L.R. (4th) 123 (Ont.C.A.) (sub no. Starson v. Swayze). Further, in finding that the ministerial discretion in s.56 of the CDSA does not comport with the principles of fundamental justice, he cited R. v. Morgentaler [1988] para 101. 55. With respect, these comparisons are inapt. Neither the right to refuse treatment with approved drugs, nor the denial of access to a recognized medical procedure lend support to a finding that there is a constitutionally protected right to use unapproved drugs, and to have the state provide them either directly, or indirectly. 56. The consequences of the Court of Appeal's decision are far reaching. First, as long as the substance has some therapeutic value, even if only based on incomplete research and anecdotal evidence, it cannot be prohibited unless an exemption mechanism exists. Second, and perhaps of greater significance, is that if there is no existing manufacturer or supplier, then the only way in which the government can satisfy the condition imposed by the Court of Appeal is for it to become involved in production and distribution of an unapproved drug. In the case of marihuana (including seeds), there is presently no licit private sector source. Accordingly, to sustain the validity of ss.4 and 7 of the CDSA with respect to marihuana the government must become the produce and supplier of therapeutic cannabis (whether directly or through contract.) 57. In addition, as matters now stand s.7(1) has been declared of no force and effect by the highest court in Alberta. An application to vacate the order of O'Leary J.A. suspending the declaration could be brought at any time. If the suspension order were vacated, then the cultivation of marijuana would not be an offence in Alberta. 58. There is no compelling reason for granting special status to marihuana, or for that matter, any unapproved drug. Such matters are for the scientific / medical community, not the courts. 59. The judgment below raises important issues going to the very core of federal drug control and regulation. As such, they warrant this Court's fullest consideration. PART IV NATURE OF ORDER SOUGHT ------------------------------ 60. That the within application be allowed. S. David Frankel, Q.C. Counsel for the Respondent May 16 2003