Canadian Cannabis Legal Defence Resource

mandatory minimum sentencing provisions are now attached to many cannabis offences. The QBA's challenge alleges the new sentencing provisions violate sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms. Read more...

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Retroactive and Prospective Remedies Under the Charter

Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 para 81, 82, 83

Legal Authorities

Interpretation Act, R.S.C. 1985, c. I-21

REPEAL AND AMENDMENT

Chapters: 2(2), 42(1)

Case Law Facts

On July 31, 2000 in R.v. Parker the Ontario Court of Appeal declared the marihuana prohibitions invalid, and suspended the declaration of invalidity for one year. The prohibition would become invalid on Aug. 01, 2001.

[11] Accordingly, I would uphold the trial judge’s decision to stay the charges against Parker and I would dismiss that part of the Crown’s appeal. However, I disagree with Sheppard J.’s remedy of reading in a medical use exemption into the legislation. I agree with the Crown that this is a matter for Parliament. Accordingly, I would declare the prohibition on the possession of marihuana in the Controlled Drugs and Substances Act to be of no force and effect. However, since this would leave a gap in the regulatory scheme until Parliament could amend the legislation to comply with the Charter, I would suspend the declaration of invalidity for a year. During this period, the marihuana law remains in full force and effect. Parker, however, cannot be deprived of his rights during this year and therefore he is entitled to a personal exemption from the possession offence under the Controlled Drugs and Substances Act for possessing marihuana for his medical needs. Since the Narcotic Control Act has already been repealed by Parliament, there is no need to hold it unconstitutional. If necessary, I would have found that Parker was entitled to a personal exemption from the cultivation offence for his medical needs.

R. v. J.P., 2003 May 16 <CanLII 45115 (Ontario Superior Court)

[9] I agree with the disposition of Phillips J. in his judgment of January 2/03 and would dismiss the Crown’s appeal for the following reasons:

(1) On July 31, 2000, Rosenberg J. in R. v. Parker, severed marihuana from s.4 of the Controlled Drugs and Substances Act and declared it invalid. Section 4 as it relates to substances other than marihuana remains in full force and effect.

(2) The declaration of invalidity was suspended for a period of 12 months from July 31, 2000. Mr. Parker was granted an exemption from the marihuana provision in s.4 during the period of suspended invalidity.

(3) As of July 31/01, s.4 of the Controlled Drugs and Substances Act as it related to marihuana was invalid. Section 4 includes the penalty section. [See Kemp v. Roth (1996) 141 D.L.R. (4th) 25 at pg.34 and 35:

"A statute which is of no force or effect confers no rights. In the absence of a direction to the contrary, a declaration that a law is of no force or effect, invalidates the law from the time when the Charter (here s.15) came into force or the legislation was enacted, which ever is later. Professor Hogg in Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992) states at pp.1241-1242(emphasis added):

A judicial decision that a law is unconstitutional is retroactive in the sense that it involves the nullification of the law from the outset. Indeed, any judicial decision must be retroactive in order to apply to the facts before the court, since those facts must have already occurred. That a court makes new law when it overrules prior doctrine or even when it decides an unprecedented case is not open to doubt; but a court does not make new law in the same way as a legislative body, that is, for the future only".(4) Parliament’s response to the Ontario Court of Appeal decision in Parker was to enact the Medical Marihuana Access Regulations, published in the Canada Gazette on June 14/01, to come into force on July 30/01. Justice Phillips recognized at para. 39 of his judgment, that the regulations have the force of law, which was conceded by the respondent both in this court and before Justice Phillips.

(5) However, Parliament at no time re-enacted s.4 of the Controlled Drugs and Substances Act, as it relates to marihuana. Accordingly, notwithstanding the enactment of the Medical Marihuana Access Regulations which allow possession of marihuana under certain circumstances, in no place in those regulations is there a prohibition against simple possession of marihuana.

[10] In addition, since s.4 of the Controlled Drugs and Substances Act has not been reenacted, as it relates to marihuana, there is no penalty in the Act for simple possession of marihuana even if it had been prohibited by the Medical Marihuana Access Regulations. It is to be noted, that there are no penalty sections set out in the Medical Marihuana Access Regulations.R. v. J.P., 2003 Oct. 07, the Ontario Court of Appeal states:

"[11] As we have held, the MMAR did not create a constitutionally acceptable medical exemption. In Parker, this court made it clear that the criminal prohibition against possession of marihuana, absent a constitutionally acceptable medical exemption, was of no force and effect. As of April 12, 2002, there was no constitutionally acceptable medical exemption. It follows that as of that date the offence of possession of marihuana in s. 4 of the CDSA was of no force and effect. The respondent could not be prosecuted.

[34] We would dismiss the appeal."

The Crown lost the appeal, and the court upheld the invalidity of the CDSA possession prohibition of marihuana.

Interpretation Act 2(2) states:

Expired and replaced enactments

(2) For the purposes of this Act, an enactment that has been replaced is repealed and an enactment that has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed.

R.S., 1985, c. I-21, s. 2; 1993, c. 34, s. 88; 1999, c. 31, s. 146; 2003, c. 22, s. 224(E).It is clear that the legislative prohibition was found to be of no force and effect in Parker and is therefore to be deemed repealed. The Crown and the Court lack jurisdiction to proceed with prosecutions, and the Police with arrests.

In a most recent decision in Sfetkopoulos v. Canada FCA, it was found that the Marihuana Medical Access Regulations have continued to be unconstitutional. In the Crown's memorandum to the Supreme Court of Canada for leave to appeal the Crown states:

"The Court in R. v. JP ruled that the combined effect of Parker and Hitzig meant there was no constitutionally valid marijuana possession offence between July 31 2001 and Oct 7 2003, the date the MMAR were constitutionally rectified by the decision in Hitzig. Courts may construe the Federal Court of Appeal's decision as creating a similar period of retrospective invalidity dating back to December 3 2003, the date that s.41(b.1) was re-introduced into the MMAR."

The retrospective invalidity of the CDSA 4(1) prohibition as it applies to cannabis marihuana, began on Aug. 1, 2001 in accordance to the decision in Parker and is still invalid at the present. The MMAR could not save the repeal of the CDSA 4(1) prohibition. Unless Parliament enacts a new prohibition, the possession of marijuana is not an offence known to law.

Her Majesty the Queen v. Matthew David Beren (B.C.) (Criminal) (By Leave) (33071) Jan 14, 2010

DISMISSED WITHOUT COSTS / REJETÉES SANS DÉPENS
(The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal is dismissed without costs. The application for leave to cross-appeal is quashed.
Coram: McLachlin / Abella / Rothstein

So now the Supreme Court of Canada has dimissed the Crown's appeal in Beren, therefore uphold the MMAR as unconstitutional and confirming the CDSA cannabis prohibitions invalid.

Federal Crown Attorney Kevin Wilson's admission to the Superior Court in R. v. Pallister admits the MMAR were unconstitutional. So anyone charged before May 14, 2009 can have their charges overturned.

R. v. Pallister, Crown Attorney Kevin Wilson to SCO:
"20. In express response to Sfetkopoulos paragraph
41(b.1) of the MMAR was amended Effective May 14 2009
to permit the holder of a production licence to grow
for up to two ATP-holders. Although Sfetkopoulos
determined that the pre-amendment regime was
constitutionally defective, it necessarily has made no
such determination with respect to the post-amendment
regime. As the offence date of the Applicant's charges
is October 2 2009, the alleged offences took place
under the post-amendment regime. The MMAR were amended
before the Applicant's alleged offence."

The MMAR s. 54.1 defect found in Hitzig and then again in Beren was repealed two weeks after the Pallister case. Canada Gazette

Primacy of Constitution of Canada

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.

Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 para 82- 83 states:

82 Section 52(1) instructs courts to declare unconstitutional legislation of no force or effect. When a court issues a declaration of invalidity, it declares that, henceforth, the unconstitutional law cannot be enforced. The nullification of a law is thus prospective. However, s. 52(1) may also operate retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law: see, e.g., Miron v. Trudel, [1995] 2 S.C.R. 418.

83 This Court has applied in many cases the "declaratory approach" to constitutional remedies, which implies that s. 52(1) remedies are often given retroactive effect. See, for example, Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, at para. 28, Gonthier J. On this view, s. 52(1) remedies are deemed to be fully retroactive because the legislature never had the authority to enact an unconstitutional law. In the words of Professor Hogg, a declaration of constitutional invalidity "involves the nullification of the law from the outset" (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 55-2 (emphasis added)). If the law was invalid from the outset, then any government action taken pursuant to that law is also invalid, and consequently, those affected by it have a right to redress which reaches back into the past.

Here is a word from Peter Hogg's widely respected Canadian Constitutional Law. Courts are not allowed to do what the OCA did in Hitzig; says Hogg, "the courts may not reconstruct an unconstitutional statute in order to render it constitutional." There ought to come a point at which a court "will recognize that an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court." In such cases, as the Supreme Court Justice Lamer had argued in Schacter (1991), "it is the legislature's role to fill in the gaps, not the court's" (40-21, 5th edition, 2007)

As it stands right now, in fact and law, the offence of possession of marihuana is of no force and effect. Innocent people are being arrested and prosecuted unlawfully. This is a judicial and democratic mockery and treasonous actions by the Harper Government, against the Canadian people.

Self Help Defence Kits

TURMEL'S ANTI-MARIJUANA-PROHIBITION LEGAL DEFENCE KITS

How to file your defence kit with the Federal Crown Attorney and the Court.

1. Contact the Superior Court Trial Coordinator and get a date set for your motion to be heard. Ask for at least 1 hour or more and that the Crown be available for that date.

2. Fill in the date given into the first page of the Application For Prohibition in all 3 copies, and make sure it is signed and dated at the back of all 3 copies.

3. Now you serve the Crown's Office with 2 copies and get one certified to bring back to the trial coorinator. Your copy does not need certification.

4. Service and have your Oath Sworn by a judge, lawyer, duty council or court registrar. Then bring one Affidavit and Trial copy of your Application to the Court Trial Coordinator to be filed.

5. Show up for court, at the right court. If you do not, too bad for you.