bc726

DOHERTY, GOUDGE, SIMMONS J.J.A.
July 31 2003

Legend: Doherty G:Goudge S:Simmons P:Parker T:Turmel
M:Michaelson DeeFreitas Y:Young B:Burstein S:Shemesh
Mc: Brian McAllister.

Doherty: [***

M: We're talking about Parker who's in Category 2. Even if
there's uncertainty on the efficacy and risks associated
with marijuana on the basis of science, we're talking about
medical necessity and whether this is required. There's the
proposition that the specialist is going to have greater
awareness of the availability, not only of conventional
treatments, but of emerging treatments. That's significant.
He could have, for example, if you look at the Record, the
Institute of Medicine where they talk about the utility of
the anecdotal evidence for the suggestion that marijuana
could be useful for certain illnesses, certain symptoms,
they'll proffer that, well, there seems to be so me
suggestion that marijuana is useful for the anti-emetic
properties, are useful, combats nausea. It seems to have
some utility for patients who are suffering from cancer. But
then they go on to talk about the significant advances in
medicine over the past decade in respect of anti-emetics.
Drug development continues.

JCT: The audience gasped in disgust.

M: So you should have a family doctor or general physician
saying: well, from what I know, this seems to work. But then
a specialist would say: Why would we expose a patient to the
risks associated with using smoked marijuana when I know
that there's a new treatment that's come on the market in
the past year or so that's better for the patient: "Let's
try this first."

D: [*** general practitioners are part of the anecdote [***

M: [** when, with respect to the Marijuana Medical Access
Regulations, the number one part, the government is trying
to restrict the use of marijuana, so, it's been not only the
specific cir***stances of the applicants that are before the
court but the general public health and safety on questions
of marijuana. Just marijuana on that basis.

So by way of example, by saying: we're going to only impact
in respect of illnesses and symptoms [*** catch-all. It's
more difficult [** it's saying that for public health and
safety generally because category 3 is a catch-all category.
You're right that [** illness but it's also [** specific
cir***stance. There's a state's objective in ensuring that
individuals who claim to need medical marijuana [***

And then there's a broader issue of public health and
safety. I tell you, I saw your eyebrows raise there. You may
be asking: well, what good is it to the state to have a
concern about its citizens. Well, there's [*** to society,
individuals who suffer harm. If a particular individual
suffers harm, society's has to bear the cost of that down
the road. It's a societal concern.

Y: I'll be very brief. On the specialist requirement, it's
clear that Mr. Justice Lederman reasons out [*** and my
position is that he was undercut by the Record.

First of all, it's unfair to say we know nothing about
marijuana. This Court has already reviewed it in Parker, and
to a lesser degree in Wakeford. A great deal of evidence
called has satisfied the courts that there's some medical
value for epilepsy and for AIDS. That's how the whole thing
started.
What the medical profession has said is: we don't know
enough. Now, at paragraph 43 of our factum, Health Canada
held consultation in February 2000, at the beginning of this
whole program, before the MMAR was even in place or
discussed, and one of the priorities was stressing the need
for more information on the use of marijuana for medical
purposes.

The stake-holders who met said: we need to know more. And it
hasn't been forthcoming for whatever reason. So the
specialists and the doctors have said: we don't know enough
to help. The specialists are saying: it's not enough for the
government to say: we want specialists because they can help
in deciding in what are exhaustive conventional treatments.
That's not what the specialists said. They didn't say: we
can help in that regard.

And my colleague yesterday referred you to the OMA letter
where they said specifically: scrap the specialist
requirement, family physicians can do this. I think that's
the most telling evidence on the need for specialists. And
finally, in paragraph 47, this is really what undercuts the
medical necessity of the specialists. There's references
there to some exhibits from Cindy Cripps-Prawak which I
commend to the court to look at. It's a chart for what
specialists have been used for what illnesses.

In summarizing the paragraph, people with arthritis have had
gastro-en[**rologists sign the specialist form. And I don't
have to be giving evidence to say that there doesn't seem to
be rational connection between those particular symptoms of
the disease. Another example is people with spinal cord
injury seeing psychiatrists. That's not related to the
condition for which you are obtaining your treatment.

Health Canada simply said: they're specialists, with a
restriction for the sake of a restriction because based on
the record and based on the doctors' own position, they
don't feel they can help.

And the final point just about that. My friend talks about
Mr. Van De Camp and Bi-Polar disorder contra-indicated for
marijuana. Well, the Record is that the Government has said
that both for Hepatitis, Mr. Renda, and Bi-Polar, and it
already grants exemptions for those types of illnesses. So
there's a long dispute in the medical community. Just
because they found one specialist who said he would get
involved with his understanding, that doesn't mean that
would be the position of all the specialists.

Finally, if you ask about health and safety of who? Clearly
it has to be the health and safety of the patient. A
restriction on access to treatment is not arbitrary if it's
based on the health need of the patient. And perhaps the
state has an interest to create restrictions to protect, as
in Rogriguez, to protect the vulnerable. We know that.

In some cir***stances, the government's taken concern about
the health and safety of others, that is Morgentaler. That
added the extra restriction, the right of the fetus is
factored in and suddenly, the court agreed, two doctors may
be acceptable.

But in terms of overall health and safety of the public?
Unless the Crown can show any evidence of large-scale
diversion of medical marijuana into the Canadian market, the
public health of Canadians is not endangered by the scheme
by any means. And this Honourable Court in Parker pretty
mush said that there's really no concern as to the public
health of Canadians by wide-scale diversion is simply not
possible. Thank you.

D: [*** drug, that somehow the medical harm could be a drain
on the society two years down the road, [**

Y: I agree with you completely but my submission is that
that would purely be a section 1 concern. For that type of
concern, you'd want evidence before the court of the type of
drain. You can't really just assert it as a statement. You
need logical evidence to show that marijuana smokers are
draining the health care system. That's sounds like an ideal
section 1 type of argument.

D: Mr. Turmel, would you like to comment?

T: Yes, I'll make a few points, just very short. I
understand the government's mind set with respect to why
they need specialists. As this dangerous drug, we can permit
the people who are going to die in 1 year because it doesn't
matter that much. But for people who aren't going to die but
who have proof that it works for them, well, we're going to
have to get a specialist's opinion because maybe long-term
smoking is more dangerous and therefore we think that people
who aren't going to die right away and we can't just kiss it
off, need a specialist for this dangerous drug. And finally
people with arthritis or those who just want to take a
little bit of a marijuana muffin to go to sleep at night,
like old people, they don't want buzz, the want the other
parts of the plant that put them to sleep for 10 hours with
no pharmaceutical side-effects, well, these dangerous drugs
should therefore probably need 2 specialists to protect
people like that. And that's the reasoning behind it, to
protect Canadians from this dangerous drug.

Again, we challenge the original premise that: Show us the
dangers of this drug. All you ever do is say that: it might
be a risk of this and that wins on how they get those
probabilities, in the negative.

"Mr. "expert" doctor, can you guarantee that marijuana does
"not" cause acne?" "Oh gee, I never heard of it but I can't
say for sure that it doesn't cause acne." "All right, put it
down on the list that marijuana may cause acne. Mr. Expert,
is it possible marijuana may cause athlete's foot, can you
guarantee it doesn't?" "Well, I never heard of it but I
can't guarantee that it doesn't cause athlete's foot." "Put
it down on the list that marijuana might cause athlete's
foot."

By putting these questions in the negative, I can come up
with a hundred things marijuana might possibly cause and I'm
saying that I have, as yet, found no harms made by the
actual substance that warrant the fear of dangers that need
somebody with arthritis to have to go check with 2 other
specialists before they take this dangerous drug. We
challenge the premise that the drug is dangerous.

And this is what enrages Mr. Parker because he was one of
the guinea pigs in the research way back in '79. And they
didn't give him marijuana to smoke, they gave him THC alone
and it's not the buzz that saves him from his seizures, it's
the other cannabinoids.

Parker: Cannabinoids, Your Honor.

T: They didn't test marijuana,

Parker: Right.

T: They tested only the THC and

Parker: Right.

that "medical study" that said that marijuana doesn't work
for epilepsy and we know that it was because it was just the
THC they tested on epilepsy.

Parker: Not marijuana..

T: But now that's it's established that marijuana, the
plant, does work for epilepsy, in the courts below, and
therefore, we see a lot of bad faith on the part of the
researchers and the government who tell us it's harmful. And
we have to raise the fact that there is no such risk. So,
that's it, Thank you.

D: Mr. Parker, would you like to say something?

P: Your Honour, when it comes to specialists, I have to
condemn that suggestion. Specialists, I've seen for all my
life for epilepsy, have been using me as a guinea pig. All
they want is surgical experimentation. No informed consent,
Your Honor. What is to prevent any further abuse to occur
down the road if we allow specialists to look after
marijuana. Whereas this situation of pharmaceutical drugs
administered under the guise of marijuana. The fact it's not
marijuana.
[FIST INTO PALM OF HAND TWICE, PAFF PAFF]
There's a hell of a lot of misrepresentation in research in
this country. There's no accountability of the Ethics Board
who approve the experiments. There's no accountability of
the Ontario College of Surgeons, there's no accountability
of the Ontario Health Protections Branch. I mean, it's just
ludicrous to allow criminal assault within marijuana
research. And no accountability, Your Honor.
I have no tolerance
[THUMP THE TABLE]
for this man to come in this courtroom and suggest,
especially when all their job is to commit assault and
battery. I've had enough being ****d, Your Honor. That's my
submission.
[THUMP THE TABLE]
Sorry, Your Honor, I apologize.

D: Any response.

M: Just in terms to the reference to the Ontario Medical
Association that Mr. Young referred to in their compendium
at Tab 20. Just in respect of Mr. Young's submission that
the Crown, in terms of the state, the issues surrounding
marijuana, that in order to justify that approval process or
prescriptions in respect of marijuana, that the Crown would
have to proffer evidence under section 1? In my respectful
submission, that's not accurate. Under the principles of
fundamental justice, the state interest is clearly stated as
health and safety. And so the assessment of section 7 and
the principles of fundamental justice.

If you look at the Record, there's is certainly evidence
that there are no harms associated with marijuana use. It's
clearly set out in my factum, it's clearly set out in the
Record, and marijuana's a complex plant, pharmaceutically.
I've made that point earlier.


QUESTION 3
----------

D: The third question we have is: considering whether the
eligibility requirements in the regulations are inconsistent
with the principles of fundamental justice, it appears from
the authorities that the court must balance between the
individual and the state interest. What, in your submission,
is the test to use in determining that balance? [***
proportionality of the harm to the [********. You want to go
first?

Young: Yes, I can just reiterate what my position was very
quickly. Much was based on the ****ysis in Godbout and we
had some discussion about whether that represents the
majority of the Supreme Court of Canada.

What the Supreme Court of Canada said, and they said this a
bit in the R.V. case too about parental rights over their
children. "When you balance a decision of a fundamental
personal nature, and that's the decision to be made under
the right to liberty, and I believe medical treatment would
constitute a decision of that fundamental nature, then the
state's interest must be compelling. They must have a
compelling interest to over-ride. Of course, one can't
quantify what "compelling" actually means but it's really
just an exhortation that because the interest of the
individual is so compelling, the state can't simply trough
for something that's in their interest but not fundamental,
to put it in those words.

And, in fact, when you look at Godbout, when you look at
the objective that they try to balance, they talk about, for
example, the municipality having an interest having money
stay in the community. Which sounds like state interest if
they want a larger tax base. But it can't be too compelling.
It's an interest but it can't be compelling to over-ride
your choice of where you want to live. I'm not sure that
that's that helpful but that's what I've focused on [***

G: [*** objective [*** the level of scrutiny the court
should apply to the choices the state has made, is that a
[** and if it is, is there any sense of proper deference to
the state's choice. The notion of manifestly unreasonable
and unfair carries with it the notion the court's deference
to the choice the state has made unless there is an obvious
over-ride involved, a fundamental interest applied but,
absent that obvious over-ride, no demonstration of breach of
fundamental justice. What do you say about this whole sense
of judicial caution for deference toward the choice of the
state in this matter?

Y: There's no question that's a starting point, that there
has to be a position of some deference in an [** case but it
is helpful for public policy determination for the state
deciding: is this interest that important to us that we have
to restrict rights?

So I think we start from a position of deference but I also
think that if the Record undercuts their assertion, then you
can't simply defer to their evaluation of this important [*.
But, if we don't make an issue, you defer, the state stands
up and says: We have an interest in protecting the health
and safety of Canadians. The ****ysis would end there
unless, perhaps, we would oppose and say: Wait, look at the
situation at hand, where does this compelling interest
really emerge. It seems like it's more just an assertion
than actually something you should defer to.

But I think law and the state of the Record, that would
determine how much you defer. If there's something in the
Record that casts doubt on what the state is suggesting, and
I think there is in this case, you can't defer. You've got
to look and see whether or not there is evidence that is
compelling. [eotape*** can't think of an state interest that
ever over-rides something manifestly unfair. It would be a
cruel hoax.

G: Manifestly unfair seems to work better to [***

Y: No question and in terms of Morgentaler itself, that
would be an appropriate standard rule of thought evaluate
the scheme but beyond that, you can always do a simple
balancing. If you don't think the regime is that unfair, you
can still go to the nature of the infringement of the
personal right and the state's interest to see whether it's
at last commensurate.

D: Seems to me there's always a balance [***

Y: I don't necessarily disagree. I think this is one of the
areas where constitutional jurisprudence is somewhat
confusing. And when I read the 1999 Mills case, where they
try to separate section 7 balancing, section 1 balancing, I
really don't know what to make of it. And so I've steered
clear. I think there is some confusion and it may be right
that everything really does just evolve into a balancing
exercise.

D: [*** when we look at the [*** what's the result? Suppose
at the end of the day, we go [*** and we also recognized
that [*** when we look at the [****** what's the result of
that [***

Y: That's a fair assessment. If it really doesn't achieve
the state objective, it doesn't matter if it's manifestly
unfair. But if you identify state objective and you say,
really, it doesn't achieve that objective or serve it, then
on any balance, the paramount interest, the medical
treatment will over-ride.

D: [*** the individual rights

Y: Then the balance would be struck in favor of the
individual for that excess.

D: Isn't that like a section 1 ****ysis though?

G: It's a different ****ysis according to [***

T: I don't know what to tell you, I can simply tell you that
ever since Cunningham in 1993, the courts have been doing
the same sort of balancing.

G: But under Section 1, the minimalist approach, [**
advantage for the state to achieve its objective, [** isn't
that the theory that supports [** articulate between section
1 balancing and section 7 balancing?

Y: Well, I guess, it's conceivable you could do this, you
could assess on the balance in section 7 that the state
interest isn't compelling enough to over-ride.

D: That would the way you would articulate [***

Y: And then the section 1, when you see whether it's
conceivable to have a reasonable limit on section 7, you can
then look more carefully at issues like minimal impairment.
It would still give the state an opportunity to say: look,
you scheme really doesn't over-ride the state. Tell us what
you're trying to do and we'll see whether, carefully
tailored, we'll give you another opportunity to uphold the
restriction.

D: [*** section 1 JCT: This could be the part where he asked
how we'd deal with the wishes of the United States under
section 1."

Y: And I can take you to the passage in Mills which I refer
to. I would say that considerations like economics concerns,
charged to health care system, by the section 1
consideration, when you're looking at the state interest
under section 7, it's got to have some relationship to the
basic tenets of our legal-political system. Something that's
different than pleading public policy considerations like
fiscal.

G: [*** Section 7 doesn't turn on minimal impairment

Y: No, I don't think you're wrong. That's the type of
language, type of ****ysis, better suited. Because, also,
when you get the minimal impairment, you're getting into a
quantitative assessment, you might even want statistical
****ysis perhaps, which is really ill-suited for defining
the boundaries of a right.

D: Mr. Turmel, I don't know if you want to deal with a
"lawyer's question" on fundamental justice?

T: Well, yeah. I'm not going to cite the actual case where I
read my one point, but I can understand the principles of
fundamental justice in time of war and if government wants
to say: We're going to put all the people who look like the
Japanese into camps because we're scared, that the judges
might have believed that under the principles of fundamental
justice, their liberty right may be violated in a war. Or
their security right may be violated in an emergency: Get
out of your house, you can't stay, there's a fire coming,
there's a big forest fire, move. We're not going to let you
stay.

So, I did read a case somewhere, now, obviously, the
security and liberty rights, they can be more easily
balanced by fundamental justice of "we need you to do it,"
than "life rights." Now, we raised the right to life which
is the fact that 10 epileptics are going to die every day
until the prohibition on their medicine is abolished and
everybody's walking around with their medicine in their
pocket because these are "have a seizure and die" kind of
cases.

And the right to life has a different standard in the
balancing act. The United States' consideration. If they
want to change our trading relations and they're going to
give us a hard time and raise our inflation, is that good
enough reason to let 10 more epileptics die tomorrow?

Well, in the case of the right to life, which they
specifically treat differently and distinguish from the
other rights, and that's why it should have had its own
section in the Charter, it shouldn't have been linked in
with liberty and security, right to life is special, but
before you let these 10 epileptics a day die, you pretty
well, under the right to life, got to find a war or a
national emergency.

Now that makes sense so I don't remember which case it was I
read it in but it was a Supreme Court of Canada and it made
so much sense I never worried about it. That's what it
means. Fundamental Justice says: We're going to take your
life because it's important in a time of war or emergency.
Well, we don't have that here. Not at all. We're talking
about these people's medicine, no proven harms to society
from that medicine ingested by those other people, seems
this medicine doesn't hurt anybody and should be treated as
the medicine it is getting its acclaim to be. So we just
point out the balancing act under the principles of
fundamental justice are different in Parker's case under
right to life, section 7 than they are under the liberty and
security of supply right.

And I'm saying that before you say: I'm going to accept that
fundamental justice is going to balance 10 epileptics a day,
you need a war or you need a national emergency, I believe
you'll find the Supreme Court of Canada said.

So as for minimal impairment in the case of a right to life,
well, I just don't think you have the authority but to say
that: This can't possibly balance all these 1500 dead
epileptics a year. And that's just the epileptics who can be
saved by it. Let alone all the people who don't have spasms,
and who can now eat food and live longer lives. So AIDS
people gain extra life by having this herb, even if it
doesn't actually cure them.

So, because we raised the right to life, and not the others,
we have a higher standard to demand from the courts before
you dispense with our rights because it's balanced by the
state's interest in preventing us, or protecting us, from
this supposedly dangerous drug, which the science is now
coming to accept is not dangerous any more and the truth is
coming out. So we need you to accept that the principles of
fundamental justice state that this is not good enough to
let 10 epileptics a day die. Thank you my Lords.

M: My submission is, I start from the proposition that was
articulated by the Justices in Morgentaler that there had to
be some latitude due to the legislature in developing [** In
the Morgentaler situation, balance the interests of the
individual and the interest of the state. That's what
Morgentaler and [*** were all about. And so, in respect of
the principle that you have to give some latitude to the
legislature, that's why we have legislatures is to identify
and articulate the state interests, the state objectives,
and try to do that delicate balance against constitutional
[**. that's minimal standards.

In Morgentaler, the court expressed the standard of manifest
unfairness. In Rodriguez, Justice Sopinka articulated it as
a question of arbitrariness or unfairness. The state has to
strike a fair balance. It then goes on to say it's a
question of whether arbitrary or unfair in the sense that
what the state has done does not advance a state interest.
And that's an order he made out, I refer to the Supreme
Court of Canada [***

And let's remember how they characterized the issue here.
The issue is characterized as whether the blanket
prohibition on assisted suicide is arbitrary or unfair in
that it is unrelated to the state's interest in protecting
the vulnerable and lacks a foundation in the legal tradition
in societal use that will be served by the the prohibition.

D: [*** no question

M: Fair enough. No question about it. My position, if I
haven't made the point clear, is that there's a compelling
state interest in the public health and safety. There's a
compelling state interest in the regulatory process.

And that's, if we just to back to the conclusion, to
reality, that's why we had [*** That's my submission.

Y: I just remember a question [** in the sixties, the
comfortable rapport [**8 they talk about whether you defer
to Parliament's objectives and they said: When Parliament's
balancing competing interests of different groups,
especially when they're vulnerable, like children versus
advertizers, but here, the government's asserting their own
state interest. They're not asserting the interest of how we
balance other people's rights. I would suggest that
deference is not necessary and it could be deemed somewhat
problematic to be allowed to say: This is our interest,
defer to it.

I think Irving Toy [*** at the Supreme Court of Canada said:
They're balancing other people's interests, who are we to
interfere with that?

D: How does that [*** with section 1.

Y: [*** yes, yes.

Continued in PART G
--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 613-562-0669 USENET: can.politics