ALAN N. YOUNG
Barrister and Solicitor
Professor of Law
January 15, 2004
The Honourable Irwin Cotler
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario Canada KIA 0H8
Daniel A. Bellemare, QC
Assistant Deputy Attorney General - Director of Prosecutions Justice Canada
284 Wellington Street, EMB 235
Ottawa, ON KI A OH8
Dear Honourable Minister and Deputy Minister,
I am writing to request that you undertake a review of the merits of a prosecution being conducted in the City of Toronto relating to the raid on the Toronto Compassion Centre in August 2002. In the normal course I would not ask the Minister of Justice to review a decision to prosecute; however, I feel compelled to do so because I believe the decision to prosecute in this case is not only contrary to the public interest but that it also brings the administration of justice into disrepute. The Toronto Compassion Centre has served as a caregiver for over one thousand seriously ill Canadians who use marijuana as medicine. The Centre operated in an open and transparent manner and between 1999-2002 there have been numerous police officers who have investigated the Centre and determined that the laying of criminal charges was not warranted.
I serve as counsel for the Centre although I will not be representing the charged employees, Warren Hitzig and Zach Naftolin, because I will be required to testify at the upcoming trial. Counsel for the two charged employees have had discussions with the Federal Crown in Toronto (Jim Leising) about entering a stay of proceedings but he has decided that the prosecution will continue for reasons I cannot explain. I could understand the Crown's intent to prosecute if there was any evidence to suggest that the Centre was also distributing marijuana for non-medical purposes; however, there has never been a suggestion that the Centre is a "front" for the sale of recreational marijuana.
I understand that reasonable people will disagree about whether the prosecution of a compassion centre is in the public interest. On the one hand, these centres are providing a valuable service for seriously-ill Canadians, but on the other hand, these centres do not have lawful authorization. Nonetheless, I seriously question whether or not there is jury in Canada which would convict a group of young people for providing medicine to sick individuals. Despite this assertion, I am not asking that you intervene to instruct counsel to stay proceedings on the basis that there is no reasonable prospect of conviction. I am asking that you intervene to stay proceedings because the continuation of this prosecution reflects poorly on the integrity of your department.
The Toronto Compassion Centre did seek lawful authorization in January 1999 in a letter sent to the Minister of Health, the Minister of Justice and Dann Michols of Health Canada. We were advised at this time that there was no clear avenue for the licensing of a compassion centre, nonetheless, the Toronto Compassion Centre went into operation without authorization. By 2002, the Centre was servicing over 1,200 individuals who had letters from their physicians. The Director of the Centre, Warren Hitzig, decided that year to fund a lawsuit in which we challenged various restrictive conditions found in the MMAR (Marijuana Medical Access Regulations). In particular, we challenged the absence of a lawful source of medicine and requested that the Court compel the government to distribute marijuana currently being grown under federal contract. Mr. Hitzig deposed in his affidavit that he would see no reason to continue operating the centre if and when a lawful supply is established.
Prior to the commencement of this lawsuit, the Compassion Centre was the subject of a vicious robbery and various police officers attended at the premise to investigate this incident. A fairly large quantity of marijuana was discovered and we were advised that the police would conduct an investigation to determine whether charges would be laid in relation to this seizure. Months then passed without any word from 13 Division as to whether charges would be laid. In the Spring of 2002, we commenced the lawsuit for declaratory and injunctive relief and Mr. Hitzig made himself available for cross-examination on his affidavit. Shortly after this cross-examination, Mr. Hitzig and Mr. Naftolin were charged with drug offences and they were also confronted with income tax assessments. It took months to determine whether to charge this Centre and it is disgraceful that the decision to charge would follow closely upon the accused's decision to initiate the civil action.
I cannot say whether or not the decision to invoke the criminal process was a vindictive or retaliatory measure but one has to wonder why charges were not laid prior to the initiation of the lawsuit.
In January 2003, Mr. Justice Lederman held that the MMAR were constitutionally deficient and he provided Health Canada with a 6 month period to address the problems of the absence of a lawful supply of medicine. In October 2003, the Ontario Court of Appeal agreed with Lederman J. that the MMAR were deficient, but this court decided to repair the constitutionally deficiency by striking down specific portions of the MMAR which arbitrarily restricted patient access to this medicine. In effect, the Court concluded that the MMAR was not constitutionally sound from its inception (July 31, 2001) until the date of judgment (October 7, 2003). With the MMAR not operating on a constitutionally sound manner during this period, it became obvious that the possession offence in the CDSA could not operate in a constitutionally sound manner. Your department has recognized this development and has decided to stay thousands of possession charges laid between July 31, 2002 and October 7, 2003.
When one reviews the decision of the Ontario Court of Appeal it becomes apparent that the decision to continue the prosecution against the Centre is misguided and paradoxical. It is impossible to discern the prosecutorial rationale for continuing this case in light of the following comments from the Court of Appeal decision:
 The Government accepts that reliance on the black market to fill a medical need would in most cases raise supply problems. It maintains, however, that marihuana is unique in that there is an established part of the black market, which the Government calls "unlicensed suppliers", that has for many years provided a safe source of medical marihuana. The Government argues that those [page465] who want to use marihuana for medical purposes have been "self-medicating" for years and know full well where to go to obtain the necessary medical marihuana. It is the Government's contention that this particular part of the black market does not present the problems that are generally associated with purchase of product on the black market. The application record offers some support for this contention. Many of the applicants do have well-established "friendly" sources in the black market from which they can safely acquire reliable medicinal marihuana. It is ironic, given the Government's reliance on this part of the black market to supply those whom the Government has determined should be allowed to use marihuana, that the police, another arm of the state, shut down these operations from time to time, presumably because they contravene the law....
[711 The record here makes clear that these limitations on supply in the MMAR present real and significant challenges to ATP holders. Many individuals who establish the requisite medical need under the MMAR and obtain ATPs will have to go to the black market on a more or less regular basis to maintain their supply of medical marihuana. As the Government acknowledged in argument, the MMAR scheme assumes the existence of the black market in marihuana. Indeed, it depends on the black market. Without the black market, the scheme set out in MMAR would be a sham. In short, in their actual operation, the MMAR require what is, as far as we know, a unique partnering of the Government and the black market to fill serious and recognized medical needs...
 The premise underlying the MMAR, that seriously ill people, some of whom are so sick it is anticipated they will die within a year, can grow their own medicine, have a friend grow it, or get it on the black market, is puzzling. It is explained, in our view, by the assumption implicit in the MMAR and specifically articulated by the Government in its factum, that those who will seek an ATP will be long-time medical marihuana users who have an established pattern of self-medication. According to this assumption, these persons will have no difficulty filling their medical marihuana needs either through cultivation or from "unlicensed" reliable sources. This first assumption reveals a second. In relying on the scheme in the MMAR as an appropriate response to the problem identified in R. v. Parker, supra, the Government must assume that a segment of the black [page479] market has provided and will continue to provide a reliable and suitable source of medical marihuana for those in need....
 The evidence adduced on the Hitzig application belies both of the assumptions described above. Many long-term users of marihuana for medical reasons are unable to produce their own marihuana for a variety of reasons and cannot obtain a designate to produce it for them. Those individuals must go to the black market and have experienced significant difficulties in doing so safely. They go to the black market only because they have no choice. Moreover, the assumptions have no application to potential ATP holders who have not established a pattern of selfmedication and have no prior contact with the marihuana black market. Nothing in the MMAR suggests that the scheme is limited to experienced medical marihuana users ....
 As the record makes clear, there are a number of people who already have a source of marihuana and wish to engage in compassionate supply of it to those in medical need. Indeed the Government's case rested in large part on their existence. It argued that they effectively serve as "unlicensed suppliers" for ATP holders. It may be that not all of these people would satisfy the requirements to become DPL holders set out in the MMAR. However, we are [page503] satisfied that, on this record, enough would do so that taken together with existing DPL holders, the DPL mechanism as modified could then provide a licit source of supply to ATP holders. Once this modification is implemented, ATP holders would therefore no longer need to access the black market to get the marihuana they need....
 Fourth, a central component of the Government's case is that there is an established part of the black market, which has historically provided a safe source of marihuana to those with the medical need for it, and that there is therefore no supply issue. The Government says that these "unlicensed suppliers" should continue [page506] to serve as the source of supply for those with a medical exemption. Since our remedy in effect simply clears the way for a licensing of these suppliers, the Government cannot be heard to argue that our remedy is unworkable.
These selected passages clearly show that Department of Justice lawyers argued against the imposition a court order requiring government distribution of marijuana on the basis that there already existed an informal arrangements with "unlicensed suppliers" to help those in need of medicinal marijuana. In the Department's submissions to the Court it was argued that these Centres provided an indispensable service which relieved the government of any obligation to distribute or supply users of medicinal marijuana. There is a blatant contradiction between the position taken by your department on the appeal and the position now taken with respect to the prosecution of the Centre. It is this contradiction which calls into question the integrity and moral justifiability of your department's exercise of prosecutorial discretion.
In my opinion there is only one decision which could be made which would respect the letter and spirit of the Ontario Court of Appeal decision and which would avoid the spectre of inconsistent, and possibly vindictive, prosecutorial decisions. Clearly, it is not tenable to prosecute any legitimate compassion centres for activities which took place between July 31, 2001 and October 7, 2003. It is justifiable to prosecute centres subsequent to this date because the Court of Appeal suggested that these centres should now seek lawful authorization under the MMAR as reconstituted by the Court. Prior to this date the MMAR was not operating in a constitutionally sound manner and these centres were providing an indispensable service which should have been provided by the government. I would suggest that to the reasonable observer the decision to prosecute appears to be mean-spirited and petty.
Of course, we are fully prepared to conduct a contested trial in which the defences of medical necessity and abuse of process will be raised. However, it seems like a dreadful waste of resources to conduct a prosecution which is doomed to fail and which can only serve to tarnish the reputation of the Department of Justice and its lawyers. I do not think that our justice system has the institutional capacity to waste time on trying a group of individuals who have been applauded by your own lawyers for coming to the rescue of seriously-ill Canadians.
I thank you in advance for considering my request. I hope you understand that I am not asking for you to provide an opinion on the current legal status of compassion centres across the country, but I merely wish that you consider whether the prosecution of the Toronto Compassion Centre is justifiable in light of the unique legal circumstances surrounding this case. If you need any documentation I can provide this for you but everything I have spoken of is contained in the files currently being held by your lawyers in Toronto. I hope to hear from you as soon as possible. I understand that the preliminary hearing is scheduled to commence on January 26, 2004, and it would be of benefit to all if you could review this matter prior to the commencement of any court proceeding.
Alan N. Young
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