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Date: 19971107 Docket: A-1026-96 CORAM: STONE, J.A. LINDEN, J.A. GRAY, D.J. BETWEEN: KORNELIS KLEVERING Appellant -and- HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, Monday, November 6, 1997
Delivered from the Bench at Toronto, Ontario, Thursday, November 6, 1997 REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A. Date: 19971107 Docket: A-1026-96 CORAM: STONE, J.A. LINDEN, J.A. GRAY, D.J. BETWEEN: KORNELIS KLEVERING Appellant (Plaintiff) -and- HER MAJESTY THE QUEEN Respondent (Defendant) REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario on Thursday, November 6, 1997) STONE, J.A. [1] This is an appeal from an order of the Trial Division dismissing an application for an order of mandamus compelling the Minister of National Health and Welfare to issue a licence forthwith so that the appellant may legally cultivate, gather or produce hemp (Cannabis sativa L.) for scientific purposes. [2] The licence application dated April 3, 1993 was submitted pursuant to section 67 of the Narcotic Control Act Regulations1, made pursuant to subsection 6(1) of the Narcotic Control Act1, R.S.C. 1985, c. N-1 ("the Act"). [3] According to the affidavit evidence1, the application was rejected for the following reasons:
[4] The Associate Chief Justice dismissed the appellant's application by order of November 21, 1996. In the view of the learned Motions Judge, the decision was a discretionary one, and it had not been demonstrated "that the Minister had exercised that discretionary power for some improper purpose, in bad faith or ... on irrelevant considerations". We respectfully agree with that view of the matter. [5] In the Trial Division, and again in this Court, the appellant challenged the validity and operability of the legislation in question on the basis that it contravenes rights enshrined in section 7 of the Canadian Charter of Rights and Freedoms, and that by "failing to apply the law equally" the respondent has denied him equal benefit of the law contrary to section 7 of the Charter. [6] It is important to recall that constitutional questions such as these are not to be determined in a "factual vacuum": MacKay v. Manitoba, [1989] 2 S.C.R. 357, at pages 361-62, 366; Danson v. Ontario (Ontario General), [1990] 2 S.C.R. 1086, at pages 1099-1102. As is pointed out in Danson, supra, at page 1099, "adjudicative facts" are those that concern the immediate parties; "legislative facts" are those that establish the purpose and background of the legislation including its social, economic and cultural context. In our view there is here an absence of sufficient "adjudicative facts" on which to determine the constitutional questions. [7] With respect to his argument that the licensing scheme is discriminatory, the appellant tendered as evidence a newspaper article which reports that two farmers in Tillsonburg, Ontario received licences to cultivate hemp. He also alleges that R.C.M.P. officers have been authorized to grow hemp. In our view, these adjudicative facts are not, by themselves, sufficient to show that the Minister exercised her discretion pursuant to section 67 of the regulations in a discriminatory fashion and that the licensing system therefore violates section 15 of the Charter. [8] We would also note that the appellant has failed to show precisely how the Minister's exercise of discretion infringes section 15, as that section of the Charter has been interpreted in the case law. For example, the appellant did not indicate how he falls within the classes of persons protected by section 15. He also fails to show how the licensing scheme creates a distinction based on his personal characteristics or the characteristics of the group to which he belongs, which has the effect of withholding privileges from him which are available to others. [9] In our opinion the appellant has also failed to establish a sufficient factual basis to support his contention that the Act infringes section 7 of the Charter. The appellant has not provided any adjudicative facts to show how his right to life, liberty and security of the person and his right not to be deprived thereof except in accordance with the principles of fundamental justice, have been violated by his inability to cultivate, gather or produce hemp for farming purposes. As we understand it, the appellant is arguing that the Act infringes his right and the right of other farmers to earn income by growing, processing and selling hemp.1 [10] In the result, the appeal will be dismissed without costs, the respondent not insisting on the same. "A.J. Stone" J.A. FEDERAL COURT OF CANADA Names of Counsel and Solicitors of Record DOCKET: A-1026-96
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DATE OF HEARING: NOVEMBER 6, 1997 PLACE OF HEARING: TORONTO, ONTARIO REASONS FOR JUDGMENT BY: STONE, J.A. Delivered from the Bench at Toronto, Ontario on Thursday, November 6, 1997 APPEARANCES: Mr. Kornelis Klevering For the Appellant Ms. Anne-Marie Waters For the Respondent
SOLICITORS OF RECORD: Kornelis Klevering 5 MacDonald Street Guelph, Ontario N1H 2Z2
For the Appellant George Thomson Deputy Attorney General of Canada
For the Respondent
1 67. The Minister may, upon application therefor, issue a licence to any person who, in the opinion of the Minister, is qualified therefor, to cultivate, gather or produce opium poppy or marihuana for scientific purposes on such terms and conditions as the Minister deems necessary. 2 6.(1) No person shall cultivate opium poppy or marihuana except under the authority of, and in accordance with, a licence issued to the person under the regulations. 3 Affidavit of Ross D. Hossie, sworn October 21, 1994. 4 Not only does this argument lack an evidentiary foundation, it would seem to have very little support. See G.A. Baudoin and E. Mendes, The Canadian Charter of Rights and Freedoms, 3 ed. (Toronto; Carswell, 1996), at pages 9-18. The courts have been extremely reluctant to interpret section 7 of the Charter as protecting economic rights. |
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