Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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Young v. Saanich Police Department, et al Page 60 this balancing test in considering the fundamental justice aspect of s. 7 is both eminently sensible and perfectly consistent with the aim and import of that provision, since the notion that individual rights may, in some circumstances, be subordinated to substantial and compelling collective interests is itself a basic tenet of our legal system lying at or very near the core of our most deeply rooted juridical convictions. We need look no further than the Charter itself to be satisfied of this. Expressed in the language of s. 7, the notion of balancing individual rights against collective interests itself reflects what may rightfully be termed a "principle of fundamental justice" which, if respected, can serve as the basis for justifying the state's infringement of an otherwise sacrosanct constitutional right. 2003 BCSC 926 (CanLII) Thus, Mr. Young’s right to choose his medication must be balanced against the CRHC's interests in preserving for their tenants the peaceful enjoyment of their residences. In my view, the collective interest that the CRHC is attempting to protect is "substantial and compelling" and outweighs the individual interests of Mr. Young in the circumstances of this case. [127] I have great sympathy for an individual who must consume marihuana for alleviation of the symptoms of his disability. I cannot ignore, however, the interests of the numerous tenants who were found to have been adversely affected by the marihuana smoke produced by Mr. Young. The evidence suggests that the odour has made their suites virtually unliveable. Whether or not this is actually the
Young v. Saanich Police Department, et al Page 61 case, what is at issue is the constitutionality of a policy that prohibits the unreasonable disturbance of neighbours by marihuana smoking. In my view, the state interest in protecting tenants from unreasonably disturbing odours must prevail. [128] To hold otherwise would permit a single apartmentdweller to dramatically impair the quality of life of his 2003 BCSC 926 (CanLII) fellow tenants. One need only look to the lengthy history of the common law tort of nuisance to recognize that it has been a longstanding principle of our justice system that an individual's freedom to do as he wishes on his property is subject to the caveat that he not unreasonably disturb his neighbour's enjoyment of her property. [129] I also take into consideration the extent of the infringement. See Godbout, at para. 78. A crucial distinction between this case and Parker is that, in the latter case, the accused was deprived of his choice of medicine by the threat of criminal prosecution and imprisonment. In other words, the deprivation was, in essence, absolute. In the case at bar, Mr. Young must seek out alternate accommodations in which to use marihuana. I would be more reluctant to arrive at my present conclusion if the result would be to force Mr. Young to cease using
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Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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