R. v. Beren and Swallow

R. v. Beren and Swallow

The court found that the MMAR supply restrictions in ss.41(b.1) and 54.1 are arbitrary and, by rendering a lawful, practical supply effectively unavailable to many authorized medical users, violate s.7 of the Charter; those subsections are constitutionally invalid and severed, but the declaration of invalidity is stayed for one year to allow regulatory response. The eligibility (physician gatekeeper and specialist) provisions, as amended, did not breach s.7 on the evidence before the court. Separately, on criminal facts the accused Beren was convicted of production and possession for the purpose of trafficking.

Citation
2009 BCSC 429
Parties
Crown: Regina; Accused: Mathew David Beren; Accused: Michael Andrew Swallow
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 February 2009
Procedural Posture
Criminal (charter Challenge to Mmar) / Trial — Oral Reasons for Judgment (constitutional S.7 Challenge)
Outcome
Mathew David Beren convicted of production and possession for the purpose of trafficking; ss.41(b.1) and 54.1 of the MMAR declared unconstitutional and severed; declaration stayed for one year to permit remedial regulation
Legal Topics
Section 7 Charter, Medical Cannabis Regulation, Controlled Drugs and Substances Act, Marihuana Medical Access Regulations (mmar), Supply and Access to Medicine, Section 1 Charter Analysis
Source Language
English
Criminal Law Constitutional Law Health Law Administrative Law Section 7 Charter Medical Cannabis Regulation Controlled Drugs and Substances Act Marihuana Medical Access Regulations (mmar) +2 more

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Parties

Regina

Crown

Mathew David Beren

Accused

Michael Andrew Swallow

Accused

Procedural Posture

Criminal (charter Challenge to Mmar) / Trial — Oral Reasons for Judgment (constitutional S.7 Challenge)

Legal Issues

  1. 1 Whether MMAR access requirements (physician gatekeeper and specialist requirements) violate s.7 of the Charter
  2. 2 Whether MMAR supply restrictions (ss.41(b.1) one-to-one and s.54.1 three-max) violate s.7 by rendering legal supply practically unavailable
  3. 3 Whether the government's PPS supply renders the MMAR restrictions constitutionally justifiable

Ratio Decidendi

The court found that the MMAR supply restrictions in ss.41(b.1) and 54.1 are arbitrary and, by rendering a lawful, practical supply effectively unavailable to many authorized medical users, violate s.7 of the Charter; those subsections are constitutionally invalid and severed, but the declaration of invalidity is stayed for one year to allow regulatory response. The eligibility (physician gatekeeper and specialist) provisions, as amended, did not breach s.7 on the evidence before the court. Separately, on criminal facts the accused Beren was convicted of production and possession for the purpose of trafficking.

Court Disposition

Mathew David Beren convicted of production and possession for the purpose of trafficking; ss.41(b.1) and 54.1 of the MMAR declared unconstitutional and severed; declaration stayed for one year to permit remedial regulation

Orders

  • Convict Mathew David Beren on counts of production and possession for the purpose of trafficking
  • Declare ss.41(b.1) and 54.1 of the Marihuana Medical Access Regulations invalid and sever them from the MMAR