Court of Justice of the European Union PRESS RELEASE No 117/15 Luxembourg, 6 October 2015 Judgment in Case C-362/14 Maximillian Schrems v Data Protection Commissioner The Court of Justice declares that the Commission’s US Safe Harbour Decision is invalid COPY.

 Court of Justice of the European Union
PRESS RELEASE No 117/15
Luxembourg, 6 October 2015
Judgment in Case C-362/14
Maximillian Schrems v Data Protection Commissioner
The Court of Justice declares that the Commission’s US Safe Harbour Decision is
invalid
Whilst the Court of Justice alone has jurisdiction to declare an EU act invalid, where a claim is
lodged with the national supervisory authorities they may, even where the Commission has
adopted a decision finding that a third country affords an adequate level of protection of personal
data, examine whether the transfer of a person’s data to the third country complies with the
requirements of the EU legislation on the protection of that data and, in the same way as the
person concerned, bring the matter before the national courts, in order that the national courts
make a reference for a preliminary ruling for the purpose of examination of that decision’s validity
The Data Protection Directive1
provides that the transfer of personal data to a third country may, in
principle, take place only if that third country ensures an adequate level of protection of the data.
The directive also provides that the Commission may find that a third country ensures an adequate
level of protection by reason of its domestic law or its international commitments. Finally, the
directive provides that each Member State is to designate one or more public authorities
responsible for monitoring the application within its territory of the national provisions adopted on
the basis of the directive (‘national supervisory authorities’).
Maximillian Schrems, an Austrian citizen, has been a Facebook user since 2008. As is the case
with other subscribers residing in the EU, some or all of the data provided by Mr Schrems to
Facebook is transferred from Facebook’s Irish subsidiary to servers located in the United States,
where it is processed. Mr Schrems lodged a complaint with the Irish supervisory authority (the Data
Protection Commissioner), taking the view that, in the light of the revelations made in 2013 by
Edward Snowden concerning the activities of the United States intelligence services (in particular
the National Security Agency (‘the NSA’)), the law and practice of the United States do not offer
sufficient protection against surveillance by the public authorities of the data transferred to that
country. The Irish authority rejected the complaint, on the ground, in particular, that in a decision of
26 July 20002
the Commission considered that, under the ‘safe harbour’ scheme,3
the United
States ensures an adequate level of protection of the personal data transferred (the Safe Harbour
Decision).
The High Court of Ireland, before which the case has been brought, wishes to ascertain whether
that Commission decision has the effect of preventing a national supervisory authority from
investigating a complaint alleging that the third country does not ensure an adequate level of
protection and, where appropriate, from suspending the contested transfer of data.
In today’s judgment, the Court of Justice holds that the existence of a Commission decision
finding that a third country ensures an adequate level of protection of the personal data transferred
cannot eliminate or even reduce the powers available to the national supervisory authorities

1 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).
2 Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of
the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently
asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7).
3
The safe harbour scheme includes a series of principles concerning the protection of personal data to which United
States undertakings may subscribe voluntarily.
www.curia.europa.eu
under the Charter of Fundamental Rights of the European Union and the directive. The Court
stresses in this regard the right, guaranteed by the Charter, to the protection of personal data and
the task with which the national supervisory authorities are entrusted under the Charter.
The Court states, first of all, that no provision of the directive prevents oversight by the national
supervisory authorities of transfers of personal data to third countries which have been the subject
of a Commission decision. Thus, even if the Commission has adopted a decision, the national
supervisory authorities, when dealing with a claim, must be able to examine, with complete
independence, whether the transfer of a person’s data to a third country complies with the
requirements laid down by the directive. Nevertheless, the Court points out that it alone has
jurisdiction to declare that an EU act, such as a Commission decision, is invalid. Consequently,
where a national authority or the person who has brought the matter before the national authority
considers that a Commission decision is invalid, that authority or person must be able to bring
proceedings before the national courts so that they may refer the case to the Court of Justice if
they too have doubts as to the validity of the Commission decision. It is thus ultimately the Court
of Justice which has the task of deciding whether or not a Commission decision is valid.
The Court then investigates whether the Safe Harbour Decision is invalid. In this connection, the
Court states that the Commission was required to find that the United States in fact ensures, by
reason of its domestic law or its international commitments, a level of protection of fundamental
rights essentially equivalent to that guaranteed within the EU under the directive read in the light of
the Charter. The Court observes that the Commission did not make such a finding, but merely
examined the safe harbour scheme.
Without needing to establish whether that scheme ensures a level of protection essentially
equivalent to that guaranteed within the EU, the Court observes that the scheme is applicable
solely to the United States undertakings which adhere to it, and United States public authorities are
not themselves subject to it. Furthermore, national security, public interest and law enforcement
requirements of the United States prevail over the safe harbour scheme, so that United States
undertakings are bound to disregard, without limitation, the protective rules laid down by that
scheme where they conflict with such requirements. The United States safe harbour scheme
thus enables interference, by United States public authorities, with the fundamental rights of
persons, and the Commission decision does not refer either to the existence, in the United States,
of rules intended to limit any such interference or to the existence of effective legal protection
against the interference.
The Court considers that that analysis of the scheme is borne out by two Commission
communications,4
according to which the United States authorities were able to access the
personal data transferred from the Member States to the United States and process it in a way
incompatible, in particular, with the purposes for which it was transferred, beyond what was strictly
necessary and proportionate to the protection of national security. Also, the Commission noted that
the persons concerned had no administrative or judicial means of redress enabling, in particular,
the data relating to them to be accessed and, as the case may be, rectified or erased.
As regards a level of protection essentially equivalent to the fundamental rights and freedoms
guaranteed within the EU, the Court finds that, under EU law, legislation is not limited to what
is strictly necessary where it authorises, on a generalised basis, storage of all the personal
data of all the persons whose data is transferred from the EU to the United States without any
differentiation, limitation or exception being made in the light of the objective pursued and
without an objective criterion being laid down for determining the limits of the access of the public
authorities to the data and of its subsequent use. The Court adds that legislation permitting the
public authorities to have access on a generalised basis to the content of electronic

4 Communication from the Commission to the European Parliament and the Council entitled ‘Rebuilding Trust in EU-US
Data Flows’ (COM(2013) 846 final, 27 November 2013) and Communication from the Commission to the European
Parliament and the Council on the Functioning of the Safe Harbour from the Perspective of EU Citizens and Companies
Established in the EU (COM(2013) 847 final, 27 November 2013).
www.curia.europa.eu
communications must be regarded as compromising the essence of the fundamental right to
respect for private life.
Likewise, the Court observes that legislation not providing for any possibility for an individual to
pursue legal remedies in order to have access to personal data relating to him, or to obtain the
rectification or erasure of such data, compromises the essence of the fundamental right to
effective judicial protection, the existence of such a possibility being inherent in the existence of
the rule of law.
Finally, the Court finds that the Safe Harbour Decision denies the national supervisory authorities
their powers where a person calls into question whether the decision is compatible with the
protection of the privacy and of the fundamental rights and freedoms of individuals. The Court
holds that the Commission did not have competence to restrict the national supervisory
authorities’ powers in that way.
For all those reasons, the Court declares the Safe Harbour Decision invalid. This judgment has
the consequence that the Irish supervisory authority is required to examine Mr Schrems’
complaint with all due diligence and, at the conclusion of its investigation, is to decide
whether, pursuant to the directive, transfer of the data of Facebook’s European subscribers
to the United States should be suspended on the ground that that country does not afford
an adequate level of protection of personal data.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes
which have been brought before them, to refer questions to the Court of Justice about the interpretation of
European Union law or the validity of a European Union act. The Court of Justice does not decide the
dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s
decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

Date: 20151005 Docket: A-124-15 Citation: 2015 FCA 212 Present: TRUDEL J.A. BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Appellant and ZUNERA ISHAQ Respondent and ATTORNEY GENERAL OF ONTARIO Intervener Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on October 5, 2015. copy

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/120099/index.do?r=AAAAAQANWnVuZXJhIElzaGFxIAE









. copy



Date: 20151005





Docket: A-124-15

Citation: 2015 FCA 212

Present: TRUDEL J.A.


BETWEEN:


THE MINISTER OF CITIZENSHIP AND IMMIGRATION


Appellant


and


ZUNERA ISHAQ


Respondent


and


ATTORNEY GENERAL OF ONTARIO


Intervener


Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on October 5, 2015.


REASONS FOR ORDER BY:

TRUDEL J.A.








Date: 20151005





Docket: A-124-15

Citation: 2015 FCA 212

Present: TRUDEL J.A.


BETWEEN:


THE MINISTER OF CITIZENSHIP AND IMMIGRATION


Appellant


and


ZUNERA ISHAQ


Respondent


and


ATTORNEY GENERAL OF ONTARIO


Intervener


REASONS FOR ORDER

TRUDEL J.A.

[1] This is a Motion by the Minister of Citizenship and Immigration (the Minister) for a stay of a September 15, 2015 judgment of this Court (2015 FCA 194) and of the related February 6, 2015 judgment of the Federal Court (2015 FC 156).

[2] Both judgments relate to operational bulletin 359, dated December 12, 2011, later incorporated into Policy Manual C-15 (the Policy). The Policy requires citizenship candidates who wear full or partial face coverings to remove those face coverings during the recitation of the oath of citizenship at a citizenship ceremony, in order to receive their Canadian citizenship.

[3] The respondent challenged the Policy under section 2(a) and subsection 15(1) of theCanadian Charter of Rights and Freedoms, Part I of The Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 (Charter), and on the administrative law grounds that the Policy was inconsistent with its governing legislation and that it unduly fettered the discretion of citizenship judges who administer the oath.

[4] On a preliminary matter, the Federal Court found that the application was not premature, as policies alleged to be unlawful or unconstitutional may be challenged at any time (May v. CBC/Radio Canada, 2011 FCA 130, 231 C.R.R. (2d) 369). This argument was not strongly advocated by the appellant before our Court with respect to the administrative question.

[5] The Federal Court declared the Policy to be unlawful, finding it to be mandatory in nature and inconsistent with the Citizenship Act, R.S.C. 1985, c. c-29 and its regulations. The Federal Court judge exercised his discretion not to decide the Charter issues, as it was unnecessary to do so.

[6] Although this Court did not endorse all of the Federal Court’s findings, it dismissed the Minister’s appeal stating that there was no basis to interfere with the Federal Court’s finding as to the mandatory nature of the impugned change in policy. This Court decided not to consider the Charter issues, because it was unnecessary for the disposition of the case and because the record was relatively scant with respect to those issues.

[7] This Court and the Federal Court did not decide whether the Minister could or could not impose rules regarding taking the oath, but only that he could not achieve the result that he seeks through a change in policy. It remains open to the Minister to proceed by way of properly enacted regulations, subject of course to Charter limits.

[8] The Minister has filed a Notice of Application for Leave to Appeal to the Supreme Court of Canada and seeks a stay of the Federal Court of Appeal and Federal Court’s judgments until the later of either: (a) final determination of the appellant’s Application for Leave to Appeal to the Supreme Court of Canada or; (b) if leave is granted, a final determination of the appeal by the Supreme Court of Canada.

[9] Having considered the appellant’s record, the respondent’s record and the appellant’s reply, I conclude that the Motion for stay is to be denied with costs to the respondent.

[10] I also took notice of the Memorandum of Fact and Law of the Intervenor, the Attorney General of Ontario. In view of my conclusion, I need not address the appellant’s reply submissions that the Attorney General of Ontario does not have the standing to intervene in this stay. She intervened as of right in the Federal Court of Appeal pursuant to a notice of Constitutional Question, but no Constitutional Question was addressed by our Court in its decision that is the subject of the appellant’s Motion for stay.

[11] The grounds for the Motion raised by the appellant are as follows:


a) The Minister has filed a Notice of Application for Leave to Appeal to the Supreme Court of Canada from this Court’s September 15, 2015 dismissal of the Minister’s appeal from the decision of Boswell J. dated February 6, 2015 (the Judgments);


b) The Judgments raise an issue of public importance that has not been decided by the Supreme Court of Canada: what is the proper interpretive approach to construing an administrative policy in order to determine whether it has an impermissible mandatory effect fettering administrative decision making in a manner not authorized by statute?;


c) By providing guidance to citizenship judges who must ensure that the oath, the last statutory requirement to become a citizen, is taken, the policy at issue enhances the integrity of obtaining citizenship and promotes the broader objective of having the oath recited publicly, openly and in community with others. These are important Canadian values and an integral part of becoming a Canadian citizen. Irreparable harm to the public interest in these values would result from the policy being subject to a declaration of invalidity pending the appeal to the Supreme Court of Canada;


d) Regarding the balance of inconvenience, the irreparable harm to the public interest represented by the Minister if the stay is not granted exceeds the harm to the Respondent if the stay is granted;


e) This stay Motion is urgent because if the stay is not granted, the Respondent’s taking of the oath will render the Minister’s appeal to the Supreme Court of Canada moot;


f) Rules 8, 35, and 55 of the Federal Courts Rules, and section 65.1 of the Supreme Court Act, R.S.C., 1985, c. S-26.

[12] Subsection 65.1(1) of the Supreme Court Act states that:



Supreme Court Act, R.S.C. 1985, c. S-26

Loi sur la Cour Suprême, L.R.C. 1985, ch. S-26


65.1(1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

65.1(1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la partie qui a signifié et déposé l’avis de la demande d’autorisation d’appel, ordonner, aux conditions jugées appropriées, le sursis d’exécution du jugement objet de la demande.


[13] Insofar as the Motion concentrates on the assertion of an issue of public importance and central Canadian values at play in this case, it seems awkward for this Court rather than the Supreme Court of Canada to decide whether a stay should be granted especially when the appellant has already filed his Notice of Application for Leave to Appeal to the Supreme Court of Canada.

[14] This said, it is trite law that the test for whether to grant a Motion to stay is set out inRJR — Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR‑Macdonald]: First, a preliminary assessment must be made of the merits of the case to ensure that a serious question has been raised. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits (Ibid, at page 334).

[15] It is also trite law that failure of any of the three elements of the test is fatal.

[16] I chose not to pronounce myself on whether or not there is a serious issue to be determined. As indicated, I am of the respectful view that this is a question better left for the Supreme Court of Canada.

[17] I will say, however, that the issue the appellant raises in his motion is not one which this Court considered.

[18] Indeed, the appellant’s proposed issue has nothing to do with the matter as it was presented before us, where the appellant conceded that his appeal could not succeed in the event that the Policy was found to be mandatory and that valid regulations would have to be promulgated by the Governor in Council pursuant to subsection 27(h) of the Citizenship Act in order to achieve the goal which the Minister seeks to achieve through policy assertions.

[19] My ultimate conclusion flows from my finding that the appellant fails on the second prong of the RJR‑Macdonald test ‑ the irreparable harm.

[20] Presuming that the appellant is right that the Policy at issue is not mandatory and citizenship judges can apply it or not — to use the appellant’s language as expressed by counsel at the hearing of the appeal, that the Policy merely amounts to an encouragement in the strongest language possible — how can one raise a claim of irreparable harm?

[21] Moreover, a declaration that the Policy is unlawful leaves no void, simply reverting to the underlying laws and regulations and lawful policies previously in force. Before this Court, counsel for the appellant went so far as to characterize the Policy as already having no force or effect, prior to any judicial intervention. It is simply inconsistent to claim, on the one hand, that a policy has no binding effect on decision-makers, but that irreparable harm would result if that policy was to be declared unlawful on the other.

[22] As the respondent rightly states, Citizenship and Immigration Canada had valid guidelines and procedures to ensure that citizenship candidates take the oath prior to the adoption of the Policy (Respondent’s written representations, at para. 8). These guidelines and procedures are undisturbed by the finding that the Policy is unlawful. There is no legislative or regulatory void.

[23] I find that the appellant has not demonstrated that refusing his application for stay would result in irreparable harm to the public interest. This suffices to dispose of the appellant’s motion for stay.

[24] As a result, the motion for stay is dismissed with costs to the respondent.

"Johanne Trudel"


J.A.





FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD








DOCKET:

A-124-15


STYLE OF CAUSE:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. ZUNERAISHAQ AND ATTORNEY GENERAL OF ONTARIO







MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES


REASONS FOR JUDGMENT BY:

TRUDEL J.A.




DATED:

OCTOBER 5, 2015




WRITTEN REPRESENTATIONS BY:


Peter Southey

Negar Hashemi

Julie Waldman



FOR THE APPELLANT

THE MINISTER OF CITIZENSHIP AND IMMIGRATION




Lorne Waldman



FOR THE RESPONDENT

ZUNERA ISHAQ




Marlys A. Edwardh



FOR THE RESPONDENT

ZUNERA ISHAQ




Courtney Harris

Rochelle S. Fox



FOR THE INTERVENER

ATTORNEY GENERAL OF ONTARIO




SOLICITORS OF RECORD:


William F. Pentney

Deputy Attorney General of Canada

Ottawa, Ontario



FOR THE APPELLANT

THE MINISTER OF CITIZENSHIP AND IMMIGRATION




Waldman and Associates

Toronto, Ontario



FOR THE RESPONDENT

ZUNERA ISHAQ




Sack Goldblatt Mitchell LLP

Toronto, Ontario



FOR THE RESPONDENT

ZUNERA ISHAQ




The Attorney General of Ontario

Constitutional Law Branch

Toronto, Ontario



FOR THE INTERVENER

ATTORNEY GENERAL OF ONTARIO

Status of Ongoing Proceedings Alexion Pharmaceuticals Inc.

Patented Medicine Prices Review Board CANADA

Federal Court of Appeal Decision Canada (Citizenship and Immigration) v. Date 2015-09-15 Neutral citation 2015 FCA 194 File numbers A-124-15 Date: 20150915 Ishaq copy

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/119858/index.do?r=AAAAAQAMWlVORVJBIElTSEFRAQ

Federal Court of Appeal Decision Canada


Case name Canada (Citizenship and Immigration) v. Ishaq
Court (s) Database Federal Court of Appeal Decisions
Date 2015-09-15
Neutral citation 2015 FCA 194
File numbers A-124-15
Date: 20150915


Docket: A-124-15
Citation: 2015 FCA 194

CORAM:
TRUDEL J.A.
WEBB J.A.
GLEASON J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant

and

ZUNERA ISHAQ
Respondent

and

ATTORNEY GENERAL OF ONTARIO

Intervener
Heard at Ottawa, Ontario, on September 15, 2015.
Judgment delivered from the Bench at Ottawa, Ontario, on September 15, 2015.

REASONS FOR JUDGMENT OF THE COURT BY:
GLEASON J.A.


Date: 20150915


Docket: A-124-15
Citation: 2015 FCA 194

CORAM:
TRUDEL J.A.
WEBB J.A.
GLEASON J.A.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant

and

ZUNERA ISHAQ

Respondent

and

ATTORNEY GENERAL OF ONTARIO

Intervener

REASONS FOR JUDGMENT OF THE COURT
Delivered from the Bench at Ottawa, Ontario, on September 15, 2015.

[1]               In the judgment under appeal, the Federal Court declared that the change in policy applicable to women who wear the niqab, that requires them to unveil to take the oath of citizenship, was unlawful. This policy change first came into effect on December 12, 2011 and was initially enshrined in Citizenship and Immigration Canada’s [CIC’s] Operational Bulletin 359. The policy change was shortly thereafter incorporated into section 6.5 of CIC’s policy manual, CP 15:Guide to Citizenship Ceremonies.
[2]               One of the reasons given by the Federal Court for its judgment was the determination that this policy change was mandatory. The Federal Court also found that the policy change conflicted with the requirements of the Citizenship Act, R.S.C. 1985, c. C-29 and with the regulations made under that Act.
[3]               The appellant has conceded that if we do not interfere with the Federal Court’s finding as to the mandatory nature of the policy change, this appeal must be dismissed in part because paragraph 27(1)(h) of the Citizenship Act delegates authority to make regulations regarding the taking of the oath of citizenship to the Governor in Council and this policy change was not adopted by the Governor in Council.
[4]               While we do not necessarily agree with all the reasons given by the Federal Court, we see no basis to interfere with the Federal Court’s finding as to the mandatory nature of the impugned change in policy as this finding is overwhelmingly supported by the evidence. It follows that this appeal must be dismissed.
[5]               We decline to address the issues concerning the legality of the impugned policy change under the Canadian Charter of Rights and Freedoms as a determination on this point is unnecessary for the disposition of this case and the record before us is fairly scant as concerns the Charter challenge. Moreover, we believe that it is in the interests of justice that we not delay in issuing our decision through the examination of an unnecessary issue so as to hopefully leave open the possibility for the respondent to obtain citizenship in time to vote in the upcoming federal election.
[6]               As a result, the appeal will be dismissed with costs.
“Mary J.L. Gleason”
J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD


DOCKET:
A-124-15

STYLE OF CAUSE:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. ZUNERA ISHAQ


PLACE OF HEARING:

Ottawa, Ontario

DATE OF HEARING:

SEPTEMBER 15, 2015

REASONS FOR JUDGMENT OF THE COURT BY:

TRUDEL J.A.
WEBB J.A.
GLEASON J.A.

DELIVERED FROM THE BENCH BY:

GLEASON J.A.

APPEARANCES:
Peter Southey
Negar Ashemi
Julie Waldman

FOR THE APPELLANT
Lorne Waldman
Naseem Mithoowani

CO-COUNSEL FOR THE RESPONDENT
Marlys Edwardh
Daniel Sheppard
CO-COUNSEL FOR THE RESPONDENT
Courtney Harris
Haley Pitcher
FOR THE INTERVENER
SOLICITORS OF RECORD:

William F. Pentney
Deputy Attorney General of Canada

FOR THE APPELLANT
Waldman & Associates
Toronto, Ontario
CO-COUNSEL FOR THE RESPONDENT

Sack Goldblatt Mitchell LLP
Toronto, Ontario
CO-COUNSEL FOR THE RESPONDENT

Ministry of the Attorney General
Toronto, Ontario
FOR THE INTERVENER

British Airways Flight 2276 registered as G-VIIO.

British Airways Flight 2276 was a scheduled passenger flight which caught fire during take-off from Las Vegas-McCarran International Airport on 8 September 2015, prompting an aborted take-off and the evacuation of all passengers and crew. The flight, bound for Gatwick Airport near London, had 157 passengers and 13 crew. The aircraft had suffered an uncontained engine failure in the left (#1) GE90 engine.[1]

The aircraft left Terminal 3, Gate E3, at 15:53 local time, and began its take-off from Runway 07L at 16:12 where the incident occurred.[2]

After noticing what the captain later described as a "catastrophic engine failure" and a "loud boom" in the left-hand engine, well before take-off speed, the flight crew aborted the take-off by using the aircraft's brakes and ordered an evacuation of the aircraft.[3] All passengers and crew escaped, with some suffering minor injuries.

The airport's emergency services extinguished the fire within five minutes of the mayday call. Fire officials said that twenty-seven people were taken to Sunrise Hospital & Medical Center to be treated for minor injuries, including cuts and bruises, mostly a result of sliding down the inflatable chutes to escape.[4][5] The fire caused an opening of a large hole in the cargo hold and damage to the engine.

The Federal Aviation Administration (FAA) indicated the fire was caused by failure of the left General Electric GE90 engine, one of two fitted on the plane.[6] The aircraft came to a halt upwind, causing the fire to be blown towards the fuselage; the aircraft sustained localized, but major, structural damage as a result.[7][8] The aircraft was equipped with suppression systems, though the systems did not extinguish the fire.[9]

The runway, one of four, was closed for four hours, and a number of inbound flights were cancelled.[10]

Aircraft
The aircraft involved in the incident was a Boeing 777-236ER, registered as G-VIIO. The aircraft itself is about 17 years old and was delivered new to British Airways on 26 January 1999.[11]

If the aircraft is declared a hull loss, the insurers would have to absorb around £21.4m ($32.8m) to cover the aircraft and liabilities.[12]

Investigation
The National Transportation Safety Board (NTSB), the American air accident investigative body, dispatched four investigators to the site the day after.[13] As well as FAA, Boeing and General Electric involvement, the British Air Accidents Investigation Branch has a representative and that representative has appointed "British Airways and the UK Civil Aviation Authority as technical advisors". Initial NTSB findings were that an uncontained engine failure had occurred and that the "left engine and pylon, left fuselage structure and inboard left wing airplane were substantially damaged by the fire".[14]

See also
British Airtours Flight 28M, a similar, although fatal accident, which took place in 1985.
China Airlines Flight 120
References[edit]
Jump up ^ "NTSB Issues Update on the British Airways Engine Fire at Las Vegas". NTSB. Retrieved 10 September 2015.
Jump up ^ "Flight Info". FlightStats. Retrieved 9 September 2015. (Login required)
Jump up ^ "13 hospitalized after British Airways fire in Las Vegas". Fox 5 Vegas. Retrieved 9 September 2015.
Jump up ^ Phipps, Claire. "British Airways plane catches fire at Las Vegas airport". The Guardian. Retrieved 9 September 2015.
Jump up ^ "British Airways fire: Jet's suppression system didn't work, source says". CNN. 9 September 2015. Retrieved 9 September 2015.
Jump up ^ Alcock, Charles (8 September 2015). "Engine Failure Causes Fire on British Airways Boeing 777". AIN Online. Retrieved 9 September 2015.
Jump up ^ Waldron, Greg. "Unclear whether BA 777 engine failure was contained". flightglobal.com. Retrieved 9 September 2015.
Jump up ^ Kaminski-Morrow, David (9 September 2015). "Weather data suggests crosswind at time of BA 777 fire". Flightglobal. Retrieved 9 September 2015.
Jump up ^ "British Airways fire: Jet's suppression system didn't work, source says". CNN. 9 September 2015. Retrieved 9 September 2015.
Jump up ^ "Accident: British Airways B772 at Las Vegas on Sep 8th 2015, rejected takeoff due to engine fire". The Aviation Herald. Retrieved 9 September 2015.
Jump up ^ Boeing 777 (G-VIIO)— British Airways — Plane Finder Data
Jump up ^ McNestrie, Adam (9 September 2015). "Aviation market to absorb $33mn BA Vegas loss". Insurance Insider. Retrieved 11 September 2015.
Jump up ^ "NTSB Investigators to Probe Engine Fire on British Airways 777 in Las Vegas". NTSB. Retrieved 9 September 2015.
Jump up ^ "NTSB Issues Update on the British Airways Engine Fire at Las Vegas". NTSB. Retrieved 10 September 2015.

2015, British Airways Flight 2276, a Boeing 777-236ER G-VIIO,

On 8 September 2015, British Airways Flight 2276, a Boeing 777-236ER G-VIIO, aborted its takeoff at Las Vegas McCarren International Airport due to a catastrophic engine failure of its left (#1) General Electric GE90engine, which led to a large fire. The aircraft was evacuated on the main runway. All 189 passengers and crew escaped the aircraft with only 14 people sustaining minor injuries. An NTSB and AAIB investigation is underway with the aircraft already declared a hull loss.[161]

The Canadian Transportation Agency INFORMATION FOR SKYGREECE TICKET-HOLDERS copy

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INFORMATION FOR SKYGREECE TICKET-HOLDERS



The Canadian Transportation Agency is providing the following advice to passengers who hold tickets for travel on SkyGreece.


If you have purchased a ticket but have not yet travelled, or you are still in transit and your air carrier ceases operations, you should contact your travel agent or other transportation providers as soon as possible to make alternate arrangements.


If you have purchased travel insurance, you should contact the insurance company to see if you are covered.


If you have an unused ticket, you may be eligible for a refund from your credit card company or certain provincial government authorities responsible for travel. Passengers whose travel agents are registered in Ontario, Quebec or British Columbia may contact the following provincial authorities for advice on claims for reimbursement:

Ontario
Travel Industry Council of Ontario (TICO)
Tel.: 1 888-451-8426
Email: tico@tico.ca
www.tico.ca

Quebec
Office de la protection du consommateur
Tel.: 1-888-672-2556
www.opc.gouv.qc.ca

British Columbia
Business Practices and Consumer Protection Authority
Tel.: 1-888-564-9963
Email: info@consumerprotectionbc.ca
http://www.consumerprotectionbc.ca/


Residents of other provinces or territories or persons outside Canada should contact their travel agents.


The Agency can handle certain air travel complaints about flights originating in Canada or where the ultimate ticketed destination is Canada by domestic and foreign carriers. Visit our Air Complaints page for information on how the Agency handles complaints related to flight disruptions.

Benjamin Perrin is an associate professor at the Peter A. Allard School of Law at the University of British Columbia.

Benjamin Perrin is an associate professor at the Peter A. Allard School of Law at the University of British Columbia.[1]He lives in Vancouver, British Columbia, Canada.[2]




1 Opponent of Human Trafficking
2 Political career
3 Commentary in the Media
4 References


Opponent of Human Trafficking[edit]

Perrin is involved with human trafficking research and activism, and wrote the 2010 book Invisible Chains: Canada's Underground World of Human Trafficking. This book deals extensively with a gang of pimps called North Preston's Finest[3] and includes an account of the disappearance of Jessie Foster. Perrin received a George Ryga Award for Social Awareness in Literature nomination for having written this book.[2] Perrin helped Joy Smith develop the National Action Plan to Combat Human Trafficking.[4] In the 2009 Trafficking in Persons (TIP) Report by the United States Department of State's Office to Monitor and Combat Trafficking in Persons, he was the only Canadian named a TIP Hero.[5] Perrin spoke at the news conference at the Vancouver American consulate during which the TIP report was released, and he called for Stephen Harper "to announce that he will enact a national action plan to combat human trafficking to follow up on the measures that his government has already taken."[6] Perrin said that not having such a plan in place makes Canada look bad internationally and also prevents the issue of human trafficking from being adequately addressed.[7] Perrin argued that, if the plan was to be effective, it needed to establish a strategy for preventing human trafficking, protecting victims, and prosecuting traffickers.[6] He further said that the establishment of a national action plan on this issue "should be a priority for our federal government to end this atrocious crime that is flourishing in Canada."[4]
Political career[edit]

He moved to Ottawa, Ontario in the late 1990s in order to become a policy intern for the Reform Party of Canada.[8]

He eventually was appointed "Special Adviser and Legal Counsel to the Prime Minister", and acted as a lead policy adviser in the PMO on subjects of relevance to the Department of Citizenship and Immigration, theDepartment of Justice, and Public Safety Canada.[9]

In 2013, Perrin was implicated in the Canadian Senate expenses scandal.[10] Perrin was named in an "Information to Obtain" police request related to the scandal.[11] In a letter to the RCMP’s assistant commissioner Gilles Michaud, the PCO said it had informed the Prime Minister’s Office that emails from Perrin, who allegedly helped broker a deal between Nigel Wright and Sen. Mike Duffy were not deleted, as had mistakenly been believed, following Perrin’s abrupt departure from the PMO in March 2013. The PCO letter states the account was not deleted, as is standard practice, but in fact frozen due to unrelated litigation.[12] In April 2013, Perrin left the Office of the Prime Minister and took up a position on the Faculty of Law at UBC.[9] On 30 July 2014, the Law Society of British Columbia announced that it closed its file related to Perrin's alleged role in the affair because the complaint was not valid.[13] On 25 October 2014, the Law Society of Upper Canada also reported that after fully investigating, it had no concerns whatsoever with Perrin's conduct as a lawyer.[14]
Commentary in the Media[edit]

Perrin has published op-ed pieces on international affairs and Canadian criminal justice issues.

On 26 March 2014, Perrin wrote an op-ed piece in support of Stephen Harper's policy[15] of "significant long-term diplomatic and economic consequences"[16] for Russian involvement in the 2014 Crimean crisis, which Perrin characterised as "naked aggression".[16]

On 4 June 2014, Perrin wrote an op-ed piece about religious persecution in China, and called for the immediate release of human right's lawyer Gao Zhisheng.[17]

On 9 June 2014, Perrin wrote an op-ed piece about reforming Canada's prostitution laws in response to the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford.[18]

On 24 June 2014, Perrin wrote an op-ed piece calling for amendments to the proposed Victims' Bill of Rights to provide victims of crime with enforceable legal rights.[19]

On 26 September 2014, Perrin wrote an op-ed piece related to the killing of Surrey, B.C., teenager Serena Vermeersch and the charging of Raymond Caissie. Perrin argued that existing laws are inadequate to protect the public from high-risk violent offenders.[20]
References[edit]

Jump up^ http://www.allard.ubc.ca/
^ Jump up to:a b "Local authors up for Ryga award". Kamloops This Week. August 4, 2011. Retrieved October 17, 2012.
Jump up^ Julian Sher (October 15, 2010). "Sex trafficking: A national disgrace". The Globe and Mail. Retrieved November 18, 2012.
^ Jump up to:a b "National Action Plan to Combat Human Trafficking Required". The Filipino Journal 7 (9). September 2013. Retrieved October 10, 2013.
Jump up^ "2009 TIP Report Heroes". United States Department of State. 2009. Retrieved November 3, 2013.
^ Jump up to:a b "U.S. tells Canada: Harsher sentences needed for sex traffickers". The News. June 17, 2009. Retrieved May 25, 2013.
Jump up^ Tamara Cherry (June 14, 2010). "Report, experts call for national strategy on human trafficking". The London Free Press. Retrieved May 25, 2013.
Jump up^ Stephen Maher (October 25, 2013). "MPs demand answers over role of Tory lawyer Arthur Hamilton in Mike Duffy spending affair". Postmedia News. Retrieved November 3, 2013.
^ Jump up to:a b Andrea Janus (May 20, 2013). "PM's former legal advisor arranged deal for Wright to give Duffy $90K". CTV News. Retrieved November 3, 2013.
Jump up^ Michael Den Tandt (October 29, 2013). "Michael Den Tandt: Where is Stephen Harper’s famous resourcefulness in the Senate scandal?". National Post.
Jump up^ G+M: "Documents: Stunning revelations from the investigation into Duffy's expenses, residency" 5 Jul 2013
Jump up^ ctvnews.ca: "Ex-PMO lawyer's emails not deleted: PCO to RCMP" 1 Dec 2013
Jump up^ / "B.C. law society won't investigate former PMO lawyer Benjamin Perrin" 30 Jul 2014
Jump up^ / "Case closed on lawyers in Mike Duffy-Nigel Wright affair" 25 Oct 2014
Jump up^ "Harper leads charge to expel Russia from G8, ramp up sanctions" 24 Mar 2014
^ Jump up to:a b G+M: "The West’s response to Putin is joke on the free world" (Perrin) 26 Mar 2014
Jump up^ "Perrin: China is a dangerous place to express your Christian faith" 4 Jun 2014
Jump up^ "The right way to fight prostitution" 9 Jun 2014
Jump up^ "Benjamin Perrin: Without enforceability provisions, Harper’s ‘Canadian Victims Bill of Rights’ won’t do much for victims" 24 Jun 2014
Jump up^ "Benjamin Perrin: Keep violent offenders behind bars" 26 Sept 2014

Nigel S. Wright

Career
Law


After graduating, Nigel Wright flirted with academia, but instead went on to be called to the bar – he had been wanting to be a lawyer. He joined Davies Ward Phillips & Vineberg and was made a partner with the firm after only five years, the minimum number of years then allowed.[6]
Business


Working on an acquisition deal for Onex Corporation had brought Wright to the attention of its chief executive officer Gerry Schwartz who had been impressed with Wright and took him under his wing. Wright climbed the ladder at Onex, the largest private sector employer in Canada, and eventually became a managing director with the firm.[6]


While at Onex Corp., Wright served on several boards of executives. He served as a Director of Indigo Books & Music Inc. from 2001 April 1, 2006.[13] He served as Vice President of Spirit Holdings from December 2004 to November 2006 and served as its Secretary and Treasurer from December 2004 to June 2006. He was named a Director of Spirit Holdings in February 2005. Mr. Wright served as a Director of Res-Care Inc. from June 2004 to November 7, 2006. He served as an Executive Officer of Magnatrax Corporation. Mr. Wright served as a Director of Hawker Beechcraft, Inc., the direct parent company of Hawker Beechcraft Acquisition Company LLC from March 2007 to October 22, 2010. Wright served as a Vice President of Spirit AeroSystems Holdings Inc. and was named a Director in February 2005.[13]


Wright rejoined Onex in July 2014 as a managing director in the buyout firm's offices in London, England.[14][15]
Politics


Involved in Conservative politics from his days in college, he gravitated between the Tory and Reform parties for years, trying to draft Stephen Harper to unite the then-divided right-wing forces.[6] He was eventually successful, and became a founding director of the Conservative Fund Canada, the party's financial arm, as well as a director of Preston Manning's think tank in Calgary. Finally, in 2010, Wright was drafted by Stephen Harper to replace Guy Giorno as his chief of staff. In accepting the position, Wright left behind a seven figure salary for a job described by Derek Burney as "exhilarating but more strenuous than anything else I did in the public or private sector".[6] The appointment attracted pointed criticism and questions about his ties to Bay Street; many in the opposition feared that he was too close to the private sector. During his appointment hearing, NDP MP Pat Martin told him that "Every move you make, every breath you take puts you in a conflict of interest."[6] Before starting the job, he had to negotiate with the Ethics Commissioner an "ethical wall" designed to insulate him from his holdings and other interests.[6]
Chief of Staff


As the Prime Minister's right-hand man, the "elusive" Wright became one of the most powerful players in Ottawa. He has led many of the Prime Minister's big priorities, from the high-profile talks about the trans-Pacific free trade zone, to drafting the policy that limits foreign investment by state-owned enterprises in the oil sands. He was instrumental in the negotiating of skills training arrangement with the provinces, and took over the International Trade file from minister Ed Fast.[6]


Wright disclosed in writing to investigators that during his time in PMO he did not file a single expense claim, paying all his flights, hotels, meals and other costs from his own pocket.[16] Investigators were told that it cost him tens of thousands of dollars, but, thanks to his corporate career, he could afford it, and that Wright held the belief that taxpayers should not bear the cost of his position if he was able legitimately to fund it himself.[17]


In the Hill Times annual ranking of the top 100 Most Influential People in Government and Politics, Wright placed sixth in 2012[18] and in Maclean’s 25 Most important People in Ottawa he placed fifth in 2012.[19]
Senate Expense Scandal and Resignation


Main article: Canadian Senate expenses scandal


In May 2013, Wright resigned from the position in spite of the advice of the Prime Minister. In late February, 2013, it is alleged that Prime Minister Stephen Harper’s former special counsel and legal adviser Benjamin Perrin drafted a letter of understanding between Wright and Duffy.[20] Perrin denied involvement in a May 2013 statement.[21] Wright then wrote a personal cheque of $90,172 to Senator Mike Duffy, covering the cost of improperly claimed residency expenses. A Conservative Party spokesman confirmed the money was a gift from Wright, with no expectation of repayment; Duffy used the money to repay the Government of Canada for the expenses improperly claimed. Duffy then refused to meet with independent auditors or supply financial records in relation to the subsequent investigation in the claimed expense controversy. Shortly before his resignation, the Ethics Commissioner confirmed it was investigating Wright for his involvement with Duffy and for the illegal repayment of these expenses.[22] An RCMP affidavit filed in order to justify an Information to Obtain direction has suggested that Wright was guilty of the charge of Frauds on the Government.[23][24] On October 28, 2013, PM Harper stated in an interview that Wright did not resign, but was in fact dismissed.[25] Wright decided to stay in Ottawa until the RCMP wraps up its investigation of the senate.[26]


On April 15, 2014, the RCMP dropped its nearly year-long investigation into Wright, saying "the evidence gathered does not support criminal charges against Mr. Wright."[27] The RCMP would later lay 31 charges on Duffy on July 17, 2014.[28]
References[edit]

Jump up^ Jane Taber (September 24, 2010). "Onex executive Nigel Wright becomes Harper’s chief of staff". Globe and Mail (Toronto). Retrieved March 3, 2011.
^ Jump up to:a b Christina Commisso (May 19, 2013). "Stephen Harper's right-hand man resigns over expense crisis". CTV (Toronto). Retrieved May 29, 2013.
Jump up^ McNish, Jacquie. "Nigel Wright pilots $5-billion in deals for Onex". globeandmail.com. Globe and Mail. Retrieved 2 February 2015.
Jump up^ Michael Woods and Teresa Smith (May 28, 2013). "Senate committee votes to send Mike Duffy expense investigation to the RCMP". Vancouver Sun (Vancouver). Retrieved May 29, 2013.
^ Jump up to:a b Kinsella, Warren (November 2, 2013). "Harper fights for survival: PM putting the blame on former chief of staff Nigel Wright wasn’t just dishonest, it was disgusting". Toronto Sun. Retrieved October 19, 2014.
^ Jump up to:a b c d e f g h i j k l (subscription required) "Who is Nigel Wright, the man who bailed out Mike Duffy?". The Globe and Mail. May 19, 2013.
^ Jump up to:a b http://investing.businessweek.com/research/stocks/people/person.asp?personId=81929&ticker=SPR&previousCapId=370857&previousTitle=BOEING%20CO
Jump up^ Chase, Steven. "From our archives: Who is Nigel Wright, the man who bailed out Mike Duffy?". Globe and Mail. Retrieved January 22, 2014.
Jump up^ "Bay Street sings praises of Nigel Wright". Globe and Mail. Retrieved January 22, 2014.
Jump up^ Stevens, Geoff. "In defence of Nigel Wright". Retrieved January 22, 2014.
^ Jump up to:a b c Posner, Michael. "MISTER RIGHT". The Walrus. Retrieved January 22, 2014.
Jump up^ Chase, Steven (May 18, 2013). "From our archives: Who is Nigel Wright, the man who bailed out Mike Duffy?". Globe and Mail. Retrieved January 22, 2014.
^ Jump up to:a b "Nigel S. Wright Esq.". Bloomberg Businessweek. Retrieved January 24, 2014.
Jump up^ "Nigel Wright, Harper's ex-chief of staff, returns to Onex". cbc.ca. CBC. Retrieved September 2, 2014.
Jump up^ Erman, Boyd; LeBlanc, Daniel (June 4, 2014). "Ex-Harper chief of staff Nigel Wright rejoins Onex". Globe & Mail. Retrieved June 4, 2014.
Jump up^ McParland, Kelly. "Kelly McParland: Nigel Wright, a good man caught in an ugly world". National Post. Retrieved January 22, 2014.
Jump up^ G+M: "Read the RCMP's documents on Nigel Wright's cheque to Duffy" 20 Nov 2013
Jump up^ "The Top 100 Most Influential People in Government and Politics: The List". Hill Times. Retrieved January 27, 2014.
Jump up^ "The 25 most important people in Ottawa". Maclean's. Retrieved January 27, 2014.
Jump up^ Janus, Andrea (2013). "PM’s former legal adviser arranged deal for Wright to give Duffy $90K; CTV News". ctvnews.ca. Retrieved May 21, 2013. Benjamin Perrin
Jump up^ Woodford, Shane (2013). "Local News Story - CKNW AM 980: News. Talk. Sports.". cknw.com. Retrieved May 22, 2013.
Jump up^ "What we know about Mike Duffy and the $90,172 repayment". Maclean's. The Canadian Press. May 16, 2013.
Jump up^ "Senate expense scandal: The Mike Duffy-Stephen Harper credibility war". CBC. October 23, 2013.
Jump up^ "ITO Production & Sealing Order". CTV. July 5, 2013. p. 27.
Jump up^ "Harper says Nigel Wright dismissed". CBC. October 28, 2013.
Jump up^ Stevens, Geoff. "In defence of Nigel Wright". Rabble.ca. Retrieved January 22, 2014.
Jump up^ "RCMP drop investigation into Nigel Wright over $90,000 Duffy cheque". The Globe and Mail. April 15, 2014. Retrieved August 29, 2014.
Jump up^ "Suspended senator Mike Duffy faces 31 charges". CTV News. July 17, 2014. Retrieved August 29, 2014.

"Our offer: Ontario"

Pipelines - By The Numbers

C'est Inconcevable

It's Unfathomable

NDP Campaign Ad: “Enough"

REPLAY: Maclean's National Leaders Debate

REPLAY: Maclean's National Leaders Debate

https://www.youtube.com/watch?v=hSf2__qpeGA

Négliger TV publicité | Les Conservateurs Harper: Vous ne comptez pas à ...

So vets like Rob don’t lose access to in-person support

Robyn shouldn't have to travel 2 hours to fight for benefits

Michelle says remaining Veterans Affairs workers stressed, not able to d...

Votez pour stopper l'hémorragie

Vote to stop the cuts

Neglect TV ad | The Harper Conservatives won't be there for you.

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CRTC fostering competition in the broadband Internet market July 22, 2015 – Ottawa-Gatineau – Canadian Radio-television and Telecommunications Commission (CRTC) copy

CRTC fostering competition in the broadband Internet market
July 22, 2015 – Ottawa-Gatineau – Canadian Radio-television and Telecommunications Commission (CRTC)

The Canadian Radio-television and Telecommunications Commission (CRTC) today announced measures to foster competition between companies that offer broadband Internet services. These measures will provide Canadians with more choice and innovative services at reasonable prices.

To provide services to their customers, companies enter into a wide variety of wholesale arrangements. In particular, wholesale high-speed access services are used by competitors to provide Internet services, as well as television and telephone services, in the retail market.

Following an extensive review, the CRTC found that the large incumbent companies continue to possess market power in the provision of wholesale high-speed access services and is requiring that they make these services available to competitors.

In addition, the demand by Canadians for higher speed services will only increase in the coming years to support their growing Internet needs and usage. Large incumbent companies will now have to make their fibre facilities available to their competitors. This measure will ensure that Canadians have more choice for high-speed Internet services and are able to fully leverage the benefits of the broadband home or business.

The large incumbent companies will continue to be required to provide access to wholesale high-speed access services throughout their region and transition this access to a disaggregated architecture. The provision of wholesale high-speed access services on a disaggregated basis will be implemented in phases across Canada, starting with Ontario and Quebec.

The CRTC’s wholesale services framework sets out the rates, terms and conditions under which telecommunications service providers are required to make parts of their respective networks available to competitors.

Quick Facts
The CRTC will continue to mandate access to wholesale services, including high-speed access services, to encourage competition in the broadband Internet market.
Additionally, the CRTC is requiring that competitors have access to wholesale high-speed services of the large incumbent companies that use optical fibre facilities.
The CRTC is taking action to ensure that Canadians have more choice for high-speed Internet services.
The CRTC is encouraging further investment in high-quality networks.
The CRTC is ensuring Canadians have access to innovative services at reasonable prices.
Quote
“As Canadians participate more actively in the digital economy, they will need access to higher Internet speeds to power their broadband homes and businesses. By continuing to mandate certain wholesale services, and including access to fibre facilities, we are continuing our work to drive competition so Canadians have access to more choice, innovative services and reasonable prices. At the same time, we fully expect that companies will continue to invest in their networks, including in fibre technology, to meet the growing needs of consumers.”

- Jean-Pierre Blais, CRTC Chairman
Related Products
CRTC Regulatory Policy CRTC 2015-326
Telecom Notice of Consultation CRTC 2013-551 - Review of wholesale services and associated policies
Technical Glossary

Is Flash dead? Player blocked on Firefox over security risk CBC NEWS.

Is Flash dead? Player blocked on Firefox over security risk


Mozilla has "temporarily" blocked the Flash multimedia player on its Firefox browser following a security alert from Flash's maker Adobe Systems.

The Flash Player Plugin was added to the list of Firefox's blocked add-ons on Monday and Mozilla followed up with a Twitter post Tuesday morning.

Mandatory victim surcharges unconstitutional: B.C. court IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. BRUCE STEWART BARINECUTT RULING ON APPLICATION OF THE HONOURABLE JUDGE D. SENNIW copy.

Citation: R. v. Barinecutt Date: 20150629


2015 BCPC 0189 File No: 13676-5-A


Registry: Vancouver








IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Criminal Division






















REGINA










v.










BRUCE STEWART BARINECUTT






















RULING ON APPLICATION


OF THE


HONOURABLE JUDGE D. SENNIW






















Counsel for the Crown: T. Shaw


Counsel for the Defendant: D. Fai


Place of Hearing: Vancouver, B.C.


Dates of Hearing: Aug 19 & 20, 2014; May 21; 2015


Date of Judgment: June 29, 2015

Supreme Court of the United States OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 14–556. Argued April 28, 2015—Decided June 26, 2015*

Supreme Court of the United States


OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 14–556. Argued April 28, 2015—Decided June 26, 2015* 

Supreme Court of the United States KING ET AL. v. BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14–114. Argued March 4, 2015—Decided June 25, 2015

Supreme Court of the United States

KING ET AL. v. BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 14–114. Argued March 4, 2015—Decided June 25, 2015

http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

SUPREME COURT OF CANADA Citation: R. v. Smith, 2015 SCC 34 Date: 20150611 Docket: 36059 copy

SUPREME COURT OF CANADA

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15403/index.do

Citation: R. v. Smith, 2015 SCC 34

Date: 20150611

Docket: 36059

Between:

Her Majesty The Queen

Appellant

and

Owen Edward Smith

Respondent

- and -

Santé Cannabis, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Canadian AIDS Society, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario

Interveners

Coram: McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ.

Reasons for Judgment:

(paras. 1 to 34)

The Court

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. smith

Her Majesty The Queen                                                                                 Appellant

v.

Owen Edward Smith                                                                                   Respondent

and

Santé Cannabis,

Criminal Lawyers’ Association (Ontario),

Canadian Civil Liberties Association,

British Columbia Civil Liberties Association,

Canadian AIDS Society, Canadian HIV/AIDS Legal Network and

HIV & AIDS Legal Clinic Ontario                                                             Interveners

Indexed as: R. v. Smith

2015 SCC 34

File No.: 36059.

2015: March 20; 2015: June 11.

Present: McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Côté JJ.

on appeal from the court of appeal for british columbia

                    Constitutional law — Charter of Rights  — Standing — Accused charged with possession and possession for purpose of trafficking of cannabis — Regulations limiting lawful possession of medical marihuana to dried forms — Accused not using marihuana for medical purposes but producing derivatives for sale outside regulatory scheme — Whether accused has standing to challenge constitutional validity of scheme — Controlled Drugs and Substances Act, S.C. 1996, c. 19 , ss. 4(1) , 5(2)  — Marihuana Medical Access Regulations, SOR/2001‑227.

                    Constitutional law — Charter of Rights  — Right to life, liberty and security of person — Fundamental justice — Accused charged with possession and possession for purpose of trafficking of cannabis — Regulations limiting lawful possession of medical marihuana to dried forms — Whether limitation infringes s. 7 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Appropriate remedy — Controlled Drugs and Substances Act, S.C. 1996, c. 19 , ss. 4(1) , 5(2)  — Marihuana Medical Access Regulations, SOR/2001‑227.

                    S produced edible and topical marihuana derivatives for sale by extracting the active compounds from the cannabis plant. He operated outside the Marihuana Medical Access Regulations (“MMARs”), which limit lawful possession of medical marihuana to dried marihuana. S does not himself use marihuana for medical purposes. The police charged him with possession and possession for purpose of trafficking of cannabis contrary to ss. 4(1)  and 5(2) , respectively, of the Controlled Drugs and Substances Act  (“CDSA ”). The trial judge held that the prohibition on non‑dried forms of medical marihuana unjustifiably infringes s. 7  of the Charter  and a majority of the Court of Appeal dismissed the appeal.

                    Held: The appeal should be dismissed, the Court of Appeal’s suspension of the declaration of invalidity deleted and S’s acquittal affirmed.

                    S has standing to challenge the constitutionality of the MMARs. Accused persons have standing to challenge the constitutionality of the law under which they are charged, even if the alleged unconstitutional effects are not directed at them, or even if not all possible remedies for the constitutional deficiency will end the charges against them.

                    The prohibition on possession of non‑dried forms of medical marihuana limits the s. 7  Charter  right to liberty of the person in two ways. First, the prohibition deprives S as well as medical marihuana users of their liberty by imposing a threat of imprisonment on conviction under s. 4(1)  or 5(2)  of the CDSA . Second, it limits the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution. Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective one, the law also infringes security of the person.

                    These limits are contrary to the principles of fundamental justice because they are arbitrary; the effects of the prohibition contradict the objective of protecting health and safety. The evidence amply supports the trial judge’s conclusions that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives. In other words, there is no connection between the prohibition on non‑dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana.

                    In this case, the objective of the prohibition is the same under both the ss. 7  and 1  Charter  analyses: the protection of health and safety. It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7  frustrates the requirement under s. 1  that the limit on the right be rationally connected to a pressing objective. The infringement of s. 7  is therefore not justified under s. 1 .

                    However, ss. 4 and 5 of the CDSA  should not be struck down in their entirety. The appropriate remedy is a declaration that these provisions are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes; however, that declaration is not suspended because it would leave patients without lawful medical treatment and the law and law enforcement in limbo.

Cases Cited

                    Referred to: R. v. Parker (2000), 146 C.C.C. (3d) 193; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Latchmana, 2008 ONCJ 187, 170 C.R.R. (2d) 128; R. v. Clay (2000), 49 O.R. (3d) 577; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hitzig v. Canada (2003), 231 D.L.R. (4th) 104; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Oakes, [1986] 1 S.C.R. 103.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 7 .

Constitution Act, 1982 , s. 52 .

Controlled Drugs and Substances Act, S.C. 1996, c. 19 , ss. 4 , 5 , 19 , 55 .

Food and Drugs Act, R.S.C. 1985, c. F‑27 .

Marihuana for Medical Purposes Regulations, SOR/2013‑119.

Marihuana Medical Access Regulations, SOR/2001‑227 [rep. 2013‑119, s. 267], ss. 1  “dried marihuana”, 24, 34.

                    APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Chiasson and Garson JJ.A.), 2014 BCCA 322, 360 B.C.A.C. 66, 617 W.A.C. 66, 315 C.C.C. (3d) 36, 316 C.R.R. (2d) 205, 14 C.R. (7th) 81, [2014] B.C.J. No. 2097 (QL), 2014 CarswellBC 2383 (WL Can.), setting aside in part a decision of Johnston J., 2012 BCSC 544, 290 C.C.C. (3d) 91, 257 C.R.R. (2d) 129, [2012] B.C.J. No. 730 (QL), 2012 CarswellBC 1043 (WL Can.). Appeal dismissed.

                    W. Paul Riley, Q.C., and Kevin Wilson, for the appellant.

                    Kirk I. Tousaw, John W. Conroy, Q.C., Matthew J. Jackson and Bibhas D. Vaze, for the respondent.

                    Julius H. Grey and Geneviève Grey, for the intervener Santé Cannabis.

                    Gerald Chan and Nader R. Hasan, for the intervener the Criminal Lawyers’ Association (Ontario).

                    Andrew K. Lokan and Debra McKenna, for the intervener the Canadian Civil Liberties Association.

                    Jason B. Gratl, for the intervener the British Columbia Civil Liberties Association.

                    Written submissions only by Paul Burstein, Ryan Peck and Richard Elliott, for the interveners the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario.

The following is the judgment delivered by

                         The Court —

[1]                              Regulations under the Controlled Drugs and Substances Act, S.C. 1996, c. 19  (“CDSA ”), permit the use of marihuana for treating medical conditions.  However, they confine medical access to “dried marihuana”, so that those who are legally authorized to possess marihuana for medical purposes are still prohibited from possessing cannabis products extracted from the active medicinal compounds in the cannabis plant.  The result is that patients who obtain dried marihuana pursuant to that authorization cannot choose to administer it via an oral or topical treatment, but must inhale it, typically by smoking. Inhaling marihuana can present health risks and is less effective for some conditions than administration of cannabis derivatives.

[2]                              The parties accept the conclusion of the Ontario Court of Appeal in R. v. Parker (2000), 146 C.C.C. (3d) 193, that a blanket prohibition on medical access to marihuana infringes the Canadian Charter of Rights and Freedoms .  This appeal requires us to decide whether a medical access regime that only permits access to dried marihuana unjustifiably violates the guarantee of life, liberty and security of the person contrary to s. 7  of the Charter .  The British Columbia courts ruled it did, and we agree.

I.              Background

[3]                              The CDSA prohibits the possession, production, and distribution of cannabis, its active compounds, and its derivatives.  In recognition of the fact that controlled substances may have beneficial uses, the CDSA  empowers the government to create exemptions by regulation for medical, scientific or industrial purposes (s. 55 ).  The Marihuana Medical Access Regulations, SOR/2001-227 (“MMARs”), created such an exemption for people who could demonstrate a medical need for cannabis.  Applicants had to provide a declaration from a medical practitioner certifying that conventional treatments were ineffective or medically inappropriate for treatment of their medical condition.  Once they had met all the regulatory requirements, patients were legally authorized to possess “dried marihuana”, defined as “harvested marihuana that has been subjected to any drying process” (s. 1 ).  Some patients were authorized to grow their own marihuana, under a personal-use production licence (s. 24), while others obtained the drug from a designated licensed producer (s. 34).

[4]                              The MMARs were replaced in 2013 with the Marihuana for Medical Purposes Regulations, SOR/2013-119 (“MMPRs”).  The new regime replaces the marihuana production scheme in the MMARs with a system of government-licensed producers.  For the purposes of this appeal, however, the situation remains unchanged: for medical marihuana patients, the exemption from the CDSA  offence is still confined to dried marihuana. 

[5]                              The accused, Owen Edward Smith, worked for the Cannabis Buyers Club of Canada, located on Vancouver Island, in British Columbia.  The Club sold marihuana and cannabis derivative products to members — people the Club was satisfied had a bona fide medical condition for which marihuana might provide relief, based on a doctor’s diagnosis or laboratory test.  It sold not only dried marihuana for smoking, but edible and topical cannabis products — cookies, gel capsules, rubbing oil, topical patches, butters and lip balms.  It also provided members with recipe books for how to make such products by extracting the active compounds from dried marihuana.  Mr. Smith’s job was to produce edible and topical cannabis products for sale by extracting the active compounds from the cannabis plant.  Mr. Smith does not himself use medical marihuana, and the Club did not have a production licence under the MMARs.

[6]                              On December 3, 2009, the police, responding to a complaint about an offensive smell, paid Mr. Smith a visit at his apartment in Victoria, and saw marihuana on a table.  They obtained a search warrant and seized the apartment’s inventory, which included 211 cannabis cookies, a bag of dried marihuana, and 26 jars of liquids whose labels included “massage oil” and “lip balm”.  Laboratory testing established that the cookies and the liquid in the jars contained tetrahydrocannabinol (“THC”), the main active compound in cannabis. THC, like the other active compounds in cannabis, does not fall under the MMARs exemption for dried marihuana. The police charged Mr. Smith with possession of THC for the purpose of trafficking contrary to s. 5(2)  of the CDSA , and possession of cannabis contrary to s. 4(1)  of the CDSA .

[7]                              At his trial before Johnston J., Mr. Smith argued that the CDSA  prohibition on possession, in combination with the exemption in the MMARs, was inconsistent with s. 7  of the Charter  and unconstitutional because it limits lawful possession of marihuana for medical purposes to “dried marihuana”.  Many witnesses, expert and lay, were called.  At the end of the voir dire, the judge made the following findings (2012 BCSC 544, 290 C.C.C. (3d) 91):

(1)      The active compounds of the cannabis plant, such as THC and cannabidiol, have established medical benefits and their therapeutic effect is generally accepted, although the precise basis for the benefits has not yet been established.

(2)   Different methods of administering marihuana offer different medical benefits.  For example, oral ingestion of the active compounds, whether by way of products baked with THC-infused oil or butter, or gel capsules filled with the active compounds, may aid gastro-intestinal conditions by direct delivery to the site of the pathology.  Further, oral administration results in a slower build-up and longer retention of active compounds in the system than inhaling, allowing the medical benefits to continue over a longer period of time, including while the patient is asleep.  It is therefore more appropriate for chronic conditions.

(3)   Inhaling marihuana, typically through smoking, provides quick access to the medical benefits of cannabis, but also has harmful side effects.  Although less harmful than tobacco smoke, smoking marihuana presents acknowledged risks, as it exposes patients to carcinogenic chemicals and is associated with bronchial disorders.

[8]                              The trial judge found that the restriction to dried marihuana deprives Mr. Smith and medical marihuana users of their liberty by imposing a threat of prosecution and incarceration for possession of the active compounds in cannabis. He also found that it deprives medical users of the liberty to choose how to take medication they are authorized to possess, a decision which he characterized as “of fundamental personal importance”, contrary to s. 7  of the Charter  (para. 88).  These limits offend the principles of fundamental justice because they are arbitrary; limiting the medical exemption to dried marihuana does “little or nothing” to enhance the state’s interest in preventing diversion of illegal drugs or in controlling false and misleading claims of medical benefit (para. 114).  For the same reason, the trial judge held that the restriction is not rationally connected to its objectives, and hence not justified under s. 1  of the Charter . 

[9]                              The majority of the Court of Appeal upheld the trial judge’s conclusions on the evidence and the constitutional issues, although it characterized the object of the prohibition more broadly, as the protection of health and safety (2014 BCCA 322, 360 B.C.A.C. 66).  Chiasson J.A., dissenting, held that Mr. Smith did not have standing to raise the constitutional issue, and that in any event the restriction did not violate s. 7  because medical users could legally convert dried marihuana into other forms.

II.           Discussion 

[10]                          Three issues arise: Mr. Smith’s standing to challenge the constitutionality of the prohibition; the constitutionality of the prohibition; and the appropriate remedy.

A.           Standing

[11]                          The first question is whether Mr. Smith has standing to challenge the constitutionality of the prohibition.  We conclude that he does. The Crown took no issue with Mr. Smith’s standing at trial. On appeal, although the issue was canvassed in oral argument, the Crown acknowledged that the principle “that no one can be convicted of an offence under an unconstitutional law” applied to Mr. Smith (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 313; C.A. reasons, at para. 147).  Before this Court, the Crown adopted Chiasson J.A.’s dissenting position, arguing that Mr. Smith does not have standing because he does not himself use medical marihuana and operated outside the regulatory scheme. The restriction to dried marihuana therefore has “nothing to do with him” (C.A. reasons, at para. 151).

[12]                          This overlooks the role the MMARs play in the statutory scheme.  They operate as an exception to the offence provisions under which Mr. Smith was charged, ss. 4  and 5  of the CDSA .  As the majority of the Court of Appeal said, the issue is whether those sections of the CDSA , “as modified by the MMARs, deprive people authorized to possess marijuana of a constitutionally protected right by restricting the exemption from criminal prosecution to possession of dried marijuana” (para. 85).  Nor does the fact that Mr. Smith is not a medical marihuana user and does not have a production licence under the regime mean he has no standing.  Accused persons have standing to challenge the constitutionality of the law they are charged under, even if the alleged unconstitutional effects are not directed at them: R. v. Morgentaler, [1988] 1 S.C.R. 30; Big M Drug Mart.  Nor need accused persons show that all possible remedies for the constitutional deficiency will as a matter of course end the charges against them. In cases where a claimant challenges a law by arguing that the law’s impact on other persons is inconsistent with the Charter , it is always possible that a remedy issued under s. 52  of the Constitution Act, 1982  will not touch on the claimant’s own situation: see R. v. Latchmana, 2008 ONCJ 187, 170 C.R.R. (2d) 128, at para. 16; R. v. Clay (2000), 49 O.R. (3d) 577 (C.A.).

[13]                          In this case, the constitutionality of the statutory provision under which Mr. Smith is charged is directly dependent on the constitutionality of the medical exemption provided by the MMARs: see Parker.  He is therefore entitled to challenge it.

B.            The Constitutionality of the Prohibition

[14]                          This appeal asks the Court to determine whether restricting medical access to marihuana to dried marihuana violates s. 7  of the Charter :

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[15]                          Section 7  permits the law to limit life, liberty and security of the person, provided it does so in a way that is not contrary to the principles of fundamental justice. 

[16]                          The first question in the s. 7  analysis is whether the law limits life, liberty or security of the person.  We conclude that it does. The legislative scheme’s restriction of medical marihuana to dried marihuana limits s. 7  rights in two ways.

[17]                          First, the prohibition on possession of cannabis derivatives infringes Mr. Smith’s liberty interest, by exposing him to the threat of imprisonment on conviction under s. 4(1)  or 5(2)  of the CDSA . Any offence that includes incarceration in the range of possible sanctions engages liberty: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 515.  The prohibition also engages the liberty interest of medical marihuana users, as they could face criminal sanctions if they produce or possess cannabis products other than dried marihuana.  We cannot accede to the dissenting judge’s position on this point: the MMARs do not authorize medical marihuana users to convert dried marihuana into its active compounds.  An authorization to possess medical marihuana is no defence for a patient found in possession of an alternate dosage form, such as cannabis cookies, THC-infused massage oil, or gel capsules filled with THC. 

[18]                          Second, the prohibition on possession of active cannabis compounds for medical purposes limits liberty by foreclosing reasonable medical choices through the threat of criminal prosecution:  Parker, at para. 92.  In this case, the state prevents people who have already established a legitimate need for marihuana — a need the legislative scheme purports to accommodate — from choosing the method of administration of the drug.  On the evidence accepted by the trial judge, this denial is not trivial; it subjects the person to the risk of cancer and bronchial infections associated with smoking dry marihuana, and precludes the possibility of choosing a more effective treatment.  Similarly, by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law also infringes security of the person: Morgentaler; Hitzig v. Canada (2003), 231 D.L.R. (4th) 104 (Ont. C.A.).

[19]                          The Crown says that the evidence adduced on the voir dire did not establish that the prohibition on alternative forms of cannabis intruded on any s. 7  interest, beyond the deprivation of physical liberty imposed by the criminal sanction. It says that the evidence did not prove that alternative forms of medical marihuana had any therapeutic benefit; at most it established that the patient witnesses preferred cannabis products to other treatment options.  This submission runs counter to the findings of fact made by the trial judge.  After a careful review of extensive expert and personal evidence, the trial judge concluded that in some circumstances the use of cannabis derivatives is more effective and less dangerous than smoking or otherwise inhaling dried marihuana. A trial judge’s conclusions on issues of fact cannot be set aside unless they are unsupported by the evidence or otherwise manifestly in error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.  The evidence amply supports the trial judge’s conclusions on the benefits of alternative forms of marihuana treatment; indeed, even the Health Canada materials filed by the Crown’s expert witness indicated that oral ingestion of cannabis may be appropriate or beneficial for certain conditions.

[20]                          The expert evidence, along with the anecdotal evidence from the medical marihuana patients who testified, did more than establish a subjective preference for oral or topical treatment forms.  The fact that the lay witnesses did not provide medical reports asserting a medical need for an alternative form of cannabis is not, as the Crown suggests, determinative of the analysis under s. 7 .  While it is not necessary to conclusively determine the threshold for the engagement of s. 7  in the medical context, we agree with the majority at the Court of Appeal that it is met by the facts of this case.  The evidence demonstrated that the decision to use non-dried forms of marihuana for treatment of some serious health conditions is medically reasonable.  To put it another way, there are cases where alternative forms of cannabis will be “reasonably required” for the treatment of serious illnesses (C.A. reasons, at para. 103). In our view, in those circumstances, the criminalization of access to the treatment in question infringes liberty and security of the person.

[21]                          We conclude that the prohibition on possession of non-dried forms of medical marihuana limits liberty and security of the person, engaging s. 7  of the Charter .  This leaves the second question — whether this limitation is contrary to the principles of fundamental justice. 

[22]                          The trial judge found that the limits on liberty and security of the person imposed by the law were not in accordance with the principles of fundamental justice, because the restriction was arbitrary, doing “little or nothing” to further its objectives, which he took to be the control of illegal drugs or false and misleading claims of medical benefit.  The majority of the Court of Appeal, which found that the objective of the prohibition was the protection of public health and safety (relying on Hitzig and Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134), likewise concluded it did not further that objective and was thus arbitrary and contrary to the principles of fundamental justice. 

[23]                          It is necessary to determine the object of the prohibition, since a law is only arbitrary if it imposes limits on liberty or security of the person that have no connection to its purpose: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 98.

[24]                          The Crown does not challenge the Court of Appeal’s conclusion that the object of the prohibition on non-dried forms of medical marihuana is the protection of health and safety.  However, it goes further, arguing that the restriction protects health and safety by ensuring that drugs offered for therapeutic purposes comply with the safety, quality and efficacy requirements set out in the Food and Drugs Act, R.S.C. 1985, c. F-27 , and its regulations.  This qualification does not alter the object of the prohibition; it simply describes one of the means by which the government seeks to protect public health and safety.  Moreover, the MMARs do not purport to subject dried marihuana to these safety, quality and efficacy requirements, belying the Crown’s assertion that this is the object of the prohibition. We therefore conclude that the object of the restriction to dried marihuana is simply the protection of health and safety.

[25]                          The question is whether there is a connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana.  The trial judge concluded that for some patients, alternate forms of administration using cannabis derivatives are more effective than inhaling marihuana.  He also concluded that the prohibition forces people with a legitimate, legally recognized need to use marihuana to accept the risk of harm to health that may arise from chronic smoking of marihuana.  It follows from these findings that the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care.  The effects of the prohibition contradict its objective, rendering it arbitrary: see Bedford, at paras. 98-100.

[26]                          The Crown says there are health risks associated with extracting the active compounds in marihuana for administration via oral or topical products.  It argues that there is a rational connection between the state objective of protecting health and safety and a regulatory scheme that only allows access to drugs that are shown by scientific study to be safe and therapeutically effective.  We disagree.  The evidence accepted at trial did not establish a connection between the restriction and the promotion of health and safety.  As we have already said, dried marihuana is not subject to the oversight of the Food and Drugs Act  regime.  It is therefore difficult to understand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permitting them to smoke or vaporize dried marihuana.  Moreover, the Crown provided no evidence to suggest that it would. In fact, as noted above, some of the materials filed by the Crown mention oral ingestion of cannabis as a viable alternative to smoking marihuana.

[27]                          Finally, the evidence established no connection between the impugned restriction and attempts to curb the diversion of marihuana into the illegal market.  We are left with a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object.  This renders it arbitrary: see Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83.

[28]                          We conclude that the prohibition of non-dried forms of medical marihuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.  It therefore violates s. 7  of the Charter .

[29]                          The remaining question is whether the Crown has shown this violation of s. 7  to be reasonable and demonstrably justified under s. 1  of the Charter .  As explained in Bedford, the s. 1  analysis focuses on the furtherance of the public interest and thus differs from the s. 7  analysis, which is focused on the infringement of the individual rights: para. 125.  However, in this case, the objective of the prohibition is the same in both analyses: the protection of health and safety.  It follows that the same disconnect between the prohibition and its object that renders it arbitrary under s. 7  frustrates the requirement under s. 1  that the limit on the right be rationally connected to a pressing objective (R. v. Oakes, [1986] 1 S.C.R. 103). Like the courts below, we conclude that the infringement of s. 7  is not justified under s. 1  of the Charter .

C.            Remedy

[30]                          A law is “of no force or effect” to the extent it is inconsistent with the guarantees in the Charter : s. 52  of the Constitution Act, 1982 .  We have concluded that restricting medical access to marihuana to its dried form is inconsistent with the Charter . It follows that to this extent the restriction is null and void.

[31]                          The precise form the order should take is complicated by the fact that it is the combination of the offence provisions and the exemption that creates the unconstitutionality.  The offence provisions in the CDSA  should not be struck down in their entirety. Nor is the exemption, insofar as it goes, problematic — the problem is that it is too narrow, or under-inclusive.  We conclude that the appropriate remedy is a declaration that ss. 4  and 5  of the CDSA  are of no force and effect, to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.

[32]                          We would reject the Crown’s request that the declaration of invalidity be suspended to keep the prohibition in force pending Parliament’s response, if any.  (What Parliament may choose to do or not do is complicated by the variety of available options and the fact that the MMARs have been replaced by a new regime.)  To suspend the declaration would leave patients without lawful medical treatment and the law and law enforcement in limbo.  We echo the Ontario Court of Appeal in Hitzig, at para. 170: “A suspension of our remedy would simply [continue the] undesirable uncertainty for a further period of time.”

III.        Disposition

[33]                          We would dismiss the appeal, but vary the Court of Appeal’s order by deleting the suspension of its declaration and instead issue a declaration that ss. 4  and 5  of the CDSA  are of no force and effect to the extent that they prohibit a person with a medical authorization from possessing cannabis derivatives for medical purposes.

[34]                          At no point in the course of these proceedings did the British Columbia courts or this Court issue a declaration rendering the charges against Mr. Smith unconstitutional.  In fact, following the voir dire, the trial judge refused to grant a judicial stay of proceedings.  Despite this, the Crown chose not to adduce any evidence at trial.  As a result of the Crown’s choice, Mr. Smith was acquitted.  We see no reason why the Crown should be allowed to reopen the case following this appeal.  Mr. Smith’s acquittal is affirmed. 

                    Appeal dismissed.

                    Solicitor for the appellant: Public Prosecution Service of Canada, Vancouver.

                    Solicitors for the respondent: Tousaw Law Corporation, Duncan, British Columbia; Conroy and Company, Abbotsford; Henshall Scouten, Vancouver; Bibhas D. Vaze, Vancouver.

                    Solicitors for the intervener Santé Cannabis: Grey Casgrain, Montréal.

                    Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Ruby Shiller Chan Hasan, Toronto.

                    Solicitors for the intervener the Canadian Civil Liberties Association: Paliare Roland Rosenberg Rothstein, Toronto.

                    Solicitors for the intervener the British Columbia Civil Liberties Association: Gratl & Company, Vancouver.

                    Solicitors for the interveners the Canadian AIDS Society, the Canadian HIV/AIDS Legal Network and the HIV & AIDS Legal Clinic Ontario: Burstein Bryant Barristers, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto; Canadian HIV/AIDS Legal Network, Toronto.