COURT FILE NO.: 03-CR-00002
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J.P. (A Young Person)
CRIMINAL LAWYERS ASSOCIATION
HEARD: February 21, 2003, March 11, 2003
Reasons for Judgment
Legal in Ontario
No Laws Ban
Possession of Marijuana
Possession Law ' Erased '
 J.P. (A young person) was charged that on or
about the 12th day of April 2002 at the Town of Kingsville in the
Southwest Region, unlawfully,
Did-have in his possession under 30 grams of a controlled substance to wit
cannabis marihuana contrary to s. 4(1) of the Controlled Drugs &
and further, Count 2
That J.P. on or about the 12 April 2002 at the Town of Kingsville in
the said Region did while subject to a disposition made pursuant to
paragraph 20(1)(j) of the Young Offenders Act to wit: a Probation Order
issued in the Youth Court, Windsor, Ontario on the 18th day of March, 2002
by Judge M. Rawlins did willfully fail to comply with that Order to wit:
The said young person shall abstain absolutely from the consumption of
illegal substances as defined in the Controlled Drugs and Substances Act,
contrary to Section 26 of the Young Offenders Act.
And further Count 3
Not applicable to this Appeal.
 J.P. made application to Phillips J. to
declare that s. 4(1) of the Controlled Drugs and Substances Act, no longer
prohibits simple possession of marihuana, and as a consequence thereof,
Count 1 and 2 of the information did not disclose offences known to law.
 In reasons released on January 2/03, Phillips J. accepted
the respondents arguments. Phillips J. framed the issue as follows:
The Applicant's submission distilled to its core, is that the Court of
Appeal in Parker, having determined that s. 4(1) of the Act (as it applied
to the possession of marihuana) was constitutionally invalid, and having
suspended that finding for 12 months, had left Parliament with no choice
but to amend or re-enact it (prior to lapse of the suspension) if
Parliament were to preserve the prohibition on marihuana possession. As it
turns out, Parliament did neither instead Regulations were enacted. In my
view, that is entirely within Parliament's prerogative (i.e. Parliament
could choose to do nothing and allow another mechanism, namely approval of
a regulation by order-in council, to remedy the defect), provided that
there is a correction addressing the underlying faults found in Parker. In
this instance, it appears that Parliament acquiesced in the choice of the
remedy, allowing enactment (clearly sanctioned by it) of a set of
Through this expedient, statutory amendment or re-enactment of the
impugned section was avoided.
 He then ultimately decided the issue in
favour of the respondent as follows:
While Regulations were enacted, but the legislation was not amended, the
"gap in the regulatory scheme" (to use the language of Rosenberg
J.A. in Parker) was not addressed. In my view, the establishment by
Parliament of suitable guidelines in legislation fettering administrative
discretion was requisite, but lacking. This is simply not the sort of
matter that Parliament can legitimately delegate to the federal cabinet, a
Crown minister or administrative agency. Regulations, crafted to provide
the solution (even were these fashioned to create sufficient standards
governing exemptions) cannot be found to remedy the defects determined by
the Parker dicta. Therefore, since a statutory framework with guiding
principles was not enacted within the period of the suspension of the
declaration of invalidity, it follows in my view that the declaration is
now effectively in place.
In light of that analysis the young persons application must succeed.
 The Crown appeals to this court from this ruling.
The Crown complains that notwithstanding that J.P.s original application
was not a charter application, the learned trial judge embarked on a
charter analysis to come to his conclusion. The Crowns agent was
therefore unprepared for this argument and in any event the charter
analysis of Phillips J. was incorrect. In point of fact, J.P.s
counsel prepared a factum for Phillips J., which is contained at
paragraphs 33 to 50 of the appeal book. While this factum referred
to R. v. Parker (2000), 146 C.C.C. (3d) 193, para. 20 of the factum
specifically states that J.P. did not challenge the constitutionality of
the regulations which Phillips J. found not to contain an offence.
 Whether I agree or disagree with
the reasoning of Phillips J. is immaterial. He was entitled to
analogize to the charter in coming to his conclusions. See the
reasons of Carthy J. in R. v. Campbell and Shirose (1997), 115 C.C.C. (3d)
310 at 331:
If the proceeding were started today the appellants might frame this as a
charter issue. The fact that they did not do so does not prevent me
from analogizing to the charter and applying the thinking which has been
applied to it in reaching out for the singular goal of presuming the
integrity of the administration of justice.
 The Crowns next position was
that Phillips J. misinterpreted the combined effect of the Parker and its
companion case R. v. Clay (2000), 146 C.C.C. (3d) 276, in failing to
appreciate the extent of the inconsistency and therefore failed to read in
a medical exemption to the declaration of invalidity by Rosenberg J. in
Parker. There is no such medical exemption in the declaration of
invalidity in R. v. Parker. The Crowns position in the Court of
Appeal in Parker was contrary to the position advanced in this appeal.
In Parker at para. 198, the Crowns position was that if the Court of
Appeal found a violation of s. 7 of the Charter, the only available remedy
was to strike down s. 4(1) of the Controlled Drugs and Substances Act (as
it related to marihuana) and suspend the finding of invalidity for a
sufficient period of time to allow Parliament to craft a satisfactory
medical exemption. This is the exact remedy that Rosenberg J.
formulated at para. 210 in Parker after discussing it at paragraphs 206
and 207. In fact, he set aside the part of Sheppard J.s original
judgment, reading in a medical exemption.
 Finally, the Crown argued that
Phillips J. erred in finding that s. 2(2) of the Interpretation Act
applied to deem the marihuana prohibition repealed by the declaration of
invalidity. More will be said on this point later.
 I agree with the disposition of
Phillips J. in his judgment of January 2/03 and would dismiss the Crowns
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
(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. Rath (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 a new law when in 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 legislated body, that is, for the
(4) Parliaments 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.
 In addition, since s. 4 of the
Controlled Drugs and Substances Act has not been re-enacted, 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.
 The question then arises whether by permitting
possession only under certain circumstances in the Medical Marihuana
Access Regulations, can they, by implication, proscribe possession except
under those terms?
 In R. v. Hauser (1979), 46
C.C.C. (2d) 481, the Supreme Court of Canada held that the former Narcotic
Control Act was legislation enacted under the general, Federal residual
power. This is notwithstanding the racial overtones with respect to
opium and the fact that marihuana is technically not a narcotic.
Hauser in effect said, that marihuana is a narcotic if Parliament said it
 Coupled therefore, with the
penal section in the Controlled Drugs and Substances Act (before Parker),
including imprisonment for simple possession, it cannot be doubted that
the Controlled Drugs and Substances Act is a penal statute. Penal
statutes must be strictly construed. Doubts must be resolved in
favour of the accused. See R. v. Pare,  2 S.C.R. 618 at pg.
 In R. v. Macintosh,  1
S.C.R. 686, Lamer C.J. as he then was, said the following, which is
reproduced from para. 38 of the Quick Law Edition:
As stated above, the overriding principle governing the interpretation of
penal provisions is that ambiguity should be resolved in a manner most
favourable to accused persons. Moreover, in choosing between two possible
interpretations, a compelling consideration must be to give effect to the
interpretation most consistent with the terms of the provision. As Dickson
J. noted in Marcotte, supra, when freedom is at stake, clarity and
certainty are of fundamental importance. He continued, at p. 115:
If one is to be incarcerated, one should at least know that some Act of
Parliament requires it in express terms, and not, at most, by implication.
Under s. 19 of the Criminal Code, ignorance of the law is no excuse to
criminal liability. Our criminal justice system presumes that everyone
knows the law. Yet we can hardly sustain such a presumption if courts
adopt interpretations of penal provisions which rely on the reading-in of
words which do not appear on the face of the provisions. How can a citizen
possibly know the law in such a circumstance?
The Criminal Code is not a contract or a labour agreement. For that
matter, it is qualitatively different from most other legislative
enactments because of its direct and potentially profound impact on the
personal liberty of citizens. The special nature of the Criminal Code
requires an interpretive approach which is sensitive to liberty interests.
Therefore, an ambiguous penal provision must be interpreted in the manner
most favourable to accused persons, and in the manner most likely to
provide clarity and certainty in the criminal law.
 It follows from these reasons, that neither
Count 1 nor Count 2 contains an offence known to law. See Otis J. in
R. v. Barrow (2000), 147 C.C.C. (3d) 310 at pg. 319 & 320 (Quebec
Court of Appeal).
As a result, I consider that the charge has no basis in Canadian criminal
law because there is neither an offence nor a penalty for it in Canadian
law. The authors J. Fortin and L. Viau, in Traité de droit pénal général
(Montreal: Les Éditions Thémis, 1982), explain the principle of the need
for a legal basis in the following terms, at p. 24:
The existence of a law is a prerequisite to a charge. In this sense,
the rule of law is more restrictive in Canada with the coming into force
of the 1955 Criminal Code than it was before and than it still is in
England. In Canada, the act or conduct which is not prohibited by
the Law is a permitted act. The text of law is the sole basis for
punishment of an act.
In Frey v. Fedoruk,  S.C.R. 517, 97 C.C.C. 1,
Cartwright J. expressed the soundness of the principle of the necessity of
a law at page 530:
I think it safer to hold that no one shall be convicted of a crime unless
the offence with which he is charged is recognized as such in the
provisions of the Criminal Code, or can be established by the authority of
some reported case as an offence known to the law. I think that if
any course of conduct is now to be declared criminal, which has not up to
the present been so regarded, such declaration should be made by
Parliament and not by the Courts.
However, if one were to find, notwithstanding the preceding demonstration,
that there still remains some difficulty on whether or not Catha edulis
Forsk is regulated as a new drug under the Food and Drug Regulations, I
consider that the appellant must be given the benefit of this doubt.
Notwithstanding the relaxation of the rule of construction that penal
statutes must be restrictively interpreted, it remains that the
supplemental nature or role of this rule still allows for recourse to it
to resolve difficulties which remain at the end of an attempted neutral
construction. (P.-A. Côté, op. cit., p. 605; R. v. Hasselwander, 
2 S.C.R. 398, 81 C.C.C. (3d) 471; R. v. Johnston (1977), 37 C.R.N.S. 234,
34 C.C.C. (2d) 325 (N.W.T.C.A.), affirmed by  2 S.C.R. 391, 9 C.C.C.
(2d) 479; R. v. Philips Electronics Ltd. (1980), 116 D.L.R. (3d) 298, 55
C.C.C. (2d) 312 (Ont. C.A.), affirmed by  2 S.C.R. 264, 62 C.C.C.
(2d) 384n; R. v. Leroux,  C.A. 151 (Que. C.A.), and R. v. Nittolo,
 C.A. 146 (Que. C.A.).)
 The Crown Appeal from the judgment of
Phillips J. is dismissed.
 In these reasons I have treated Count 1 and
Count 2 of the information charging J.P. in the same fashion.
However, since a probation order may, in appropriate circumstances,
prohibit things which are ordinarily legal (for example possession or
consumption of alcohol, possession of a cell phone) it is only because of
the wording in Count 2 charging the breach of probation by consumption of
an illegal substance that the reasons apply to that Count. If that
Count had charged J.P. with breach of probation by possession of marihuana
I would not have found Count 2 to contain an offence not known to law.
 Judgment accordingly.
Steven Rogin, Justice
Released: May 16, 2003