This page is dedicated to showing how the Ontario Court of Appeal claims to have struck down the pot law but then resurrected the dead law without Parliament.
The prohibition of the possession of marijuana lapsed into invalidity after 2001 July 31, by order of the Ontario Court of Appeal in the case of R. v. Parker on 2000 July 31. The fact that the possession of marijuana is not an offence known to Canadian law was affirmed by Rogin J., sitting in Ontario Superior Court in the case of R. v. J.P. on 2003 May 16. This decision has never been reversed, and its principles have never been decisively rejected in law.
The reasoning in is drawn from the admirably brief and conspicuously lucid judgment rendered by Justice Steven Rogin of the Windsor Bench of the Ontario Superior Court, in the case of J.P., on 2003 May 16 (attached in full). The accused J.P. was found not guilty in the ONCJ by Phillips J., on the above grounds, and his acquittal was confirmed on appeal by Rogin J., on these same grounds, to which he adds another, at (10: even if the MMAR were valid despite not being deliberated upon and issued by the Houses of Parliament, they still do not form a basis for the prosecution of J.P., as they do not themselves contain any prohibitions.) The ratio for the judgment rendered at the OSC became a binding precedent for that court and the ONCJ: if Parliament fails to re-enact a Parliamentary statute (or a part of a Parliamentary statute), after it has been declared invalid by a competent court, then that statute (or that part of it) is no longer known to law.
If it be objected by a Crown that the reasoning of Rogin J. in the above decision was repudiated when the Crown won its appeal of R. v. J.P., a defendant’s reply would be that this is not true: the Crown lost the appeal of R. v. J.P. at the Ontario Court of Appeal.
If it be objected by a Crown that the reasoning of Rogin J. in the above decision was repudiated when the Ontario Court of Appeal based its dismissal of the Crown’s appeal upon a different set of reasons (it substituted a different ratio for the acquittal of J.P.), A defendant’s reply would be that this is not how binding precedents are destroyed; the ratio on which Rogin J. Relied would have been repudiated only if the OCA had upheld the Crown’s appeal and reached a verdict of guilty, which it did not. The decision reached was to dismiss the Crown’s appeal, relative to which the reasoning at 17-33 which impugned the ratio of the OSC decision is strictly obiter dicta; it was open to the Court of Appeal to re-affirm the earlier ratio, or to leave it moot whether it still held, or to impugn its cogency, all of which are compatible with the decision it reached in the case. Therefore it is not part of the ratio; it is obiter dicta. Is the legal system meant to take these obiter dicta as authoritative, as the Crown might suggest? Did the Court of Appeal intend to arrogate to itself the power of the Supreme Court to make final determinations of law by means of obiter dicta? A defendant would prefer to believe that the Ontario Court of Appeal recognized that it could not arrogate to itself this power, when it expressed itself at 17, "Although we agree with the conclusion reached by the trial judge and the Superior Court judge, we do not agree with their analyses. As the analyses may have application in future cases, we will set out our reasons for disagreeing with their approaches." If the OCA had intended to determine the state of this question by its own approaches at 17-33, it would have said, "our analyses must have application in future cases." Within this judgment it’s self is the invitation to future judges to determine the matter on the merits of the respective arguments, not to follow a line of obiter dicta reasoning which the OCA justices know quite well enough cannot be regarded as binding.
If it be objected by Crown that the distinction between ratio and obiter dicta has been erased by the Supreme Court’s ruling in Sellars, Defendant’s reply would be that the more recent decision of the Supreme Court in R. v. Henry has restored the traditional distinction between the SCC’s binding reasonings and its non-binding wider considerations. At [56]-[59] of Henry, the SCC affirmed that among the Court’s reasoning elements that lie beyond the narrowest dispositive ratio decidendi, those of these obiter dicta which are most closely related to the ratio are to be regarded as themselves authoritative, whereas various wider considerations, more remote from the dispositive ratio, are not intended to have, and do not have, binding authority. If this holds for the Supreme Court, it must hold a fortiori for a non-Supreme court such as the Ontario Court of Appeal (whose wider obiter dicta are never to be regarded as binding). If it holds for wider considerations that support the decision that they do not have binding authority, it must hold a fortiori for separate considerations that support the opposite of the decision – these must necessarily belong to the set of obiter dicta considerations that have no binding authority.
At 31 of their decision in R. v. J.P., the OCA judges affirmed the following very puzzling claim. "The court in Parker, supra, declared that the marihuana prohibition in s.4 was inconsistent with the Charter and consequently of no force or effect absent an adequate medical exemption. In making the declaration, the court did not and could not repeal or otherwise alter the terms of the statute. The court could only declare the constitutionally offensive part of the legislation to be of no force or effect." Yes, this is what the Parker court did declare, that ‘marijuana’ was to be deleted from Schedule II and was to remain deleted until and unless Parliament re-enacted the same legislation (after invoking the notwithstanding clause) or else enacted a new statute. Once this competent court made this finding, then the prohibition was "nullified from the outset", to quote the Supreme Court of Canada (cited above, at 1.1). To strike down part of a statute (viz. the inclusion of ‘marijuana’ in a Schedule) as constitutionally invalid is precisely to alter the terms of the statute, and that part of the statute counts in law as having been repealed. According to the Interpretation Act 2(2), "an enactment that has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed." The reasoning of the OCA at 32 flies in the face of every authoritative document and every authoritative account of how Charter-defective statutory legislation is controlled by Court findings.
A dilemma – same or different prohibition?
When the MMAR were introduced in 2001 in an attempt to modify the prohibition in response to Parker, was the prohibition that subsequently resulted the same prohibition as had existed before, or was it a different prohibition? Two prohibitions are different if they draw different dividing lines between criminal and non-criminal behaviour. The Ontario Court of Appeal held that it resulted in a different prohibition; at 32 in the above judgment they write, “By bringing forward the MMAR, the Government altered the scope of the possession prohibition in s.4 of the CDSA.” There had been a universal prohibition in the CDSA against all uses of marijuana, and no program of exception even for medical users. Parliamentary committees had considered and rejected the idea, when deliberating the CDSA in the 1990s, that marijuana had legitimate medical uses, so the universal prohibition of marijuana was the legislative intention of the CDSA. It was this legislative intention that was ruled unconstitutional in Parker.
The shape of the prohibition that emergedafter the MMAR was fundamentally different, in that certain persons are permitted to possess the substance, once they have gone through certain procedures and are in possession of a certain document. This was NOT the intention of the original CDSA, and it is quite false to suggest that the MMAR express the intention of the Parliament that had passed the CDSA to regulate marijuana in some such way as the MMAR. If it is a criminal prohibition with a new and novel shape, then it cannot be valid unless passed by Parliament. If it is a criminal prohibition with the same shape (possession of marijuana is always illegal and wrong), then the MMAR amount to a scheme of impunity according to which the sick are allowed to get away with the crime of possessing the drug by having personal impunity from prosecution. No court in Canada could find that this is an adequate response to Parker, since Parker requires that the sick be able to use their medicine in a perfectly legal way, not in a way that involves illegality plus impunity, which forces the sick to be regarded by others with both contempt (for doing what is wrong) and envy (for being able to get away with it with impunity). Current policy and public thinking in Canada on this subject is defectively vague as between which option is correct: is there a real legal right to use marijuana if one is sick, or is this merely a scheme of impunity? If the latter, then the Parker decision has still not been implemented; if the former, then the new legal situation could have been put in place only by Parliament. On either horn of this dilemma, the prohibition of marijuana is currently not an offence known to law.
A missing element in the OCA reasoning – publicity and clarity.
there has never been public consultation in the formulation of the MMAR; the SOR process lacks the absolute publicity of the Parliamentary process; and the People’s Representatives in Parliament have never participated in determining the new shape of the prohibition. The new shape of the marijuana prohibition does not have democratic authority, and it lacks sufficient directness, clarity, and stability to be able to define the line between criminal and non-criminal acts. These two problems are connected:they are both caused by a pusillanimous Government decision in 2000/2001 to re-legislate this matter privately, in Privy Council, contrary to the Canadian constitution.
If it be argued by a Crown that the Supreme Court of Canada in 2003 December 23 settled finally the matter of whether possession of marijuana for personal use was prohibited, Defendant’s reply would be that the issue in R. v. Malmo-Levine was fundamentally different. This case preceded the line of Parker cases, and has no connection with the argument that succeeded in Parker. On the contrary, the main lesson of R. v. Malmo-Levine is that such an important matter as the criminal prohibition of marijuana is a matter for Parliament alone to decide, not the courts or the Privy Council. This is also the Defendant’s position; once the universal prohibition was correctly struck down in Parker, only Parliament had the authority to issue new statutory instruments of control and prohibition.
If it be argued by a Crown that R. v. J.P. is not the most authoritative word on the legal status of marijuana and we must look instead to Hitzig in the same court, at 170, where it is asserted that the effect of their finding is to render the MMAR constitutionally valid from having not been valid, and thus the overall prohibition is rendered valid again – if this be argued by the Crown, Defendant’s reply would be twofold. Firstly, Hitzig is a civil action and J.P. is a criminal case, and the development of criminal law cannot be overridden by appeals to judgments in different trial divisions. Secondly, Hitzig is a decision that precedes J.P. (despite being rendered on the same day) because its decision is used in reaching the decision of J.P. but not vice versa.
The judges themselves acknowledge that Hitzig is the earlier decision, at 11: "Having held in Hitzig, supra, that the MMAR did not create a constitutionally valid medical exemption … " (emphasis added). This is clear evidence that J.P. comes after Hitzig, and is therefore the OCA’s last word on the subject. The enduring ratio that governs the legal system on the basis of this decision is that whenever the MMAR are constitutionally invalid then so is the general prohibition that proscribes the plant in the hands of the general population.