Docket: A-174-14
Citation: 2014 FCA 298
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CORAM:
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NADON J.A.
WEBB J.A.
BOIVIN J.A.
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BETWEEN:
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA
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Appellant
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and
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NEIL ALLARD, TANYA BEEMISH, DAVID HEBERT AND SHAWN DAVEY
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Respondents
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REASONS
FOR JUDGMENT
BOIVIN J.A.
[1]
This appeal is from a decision of Mr. Justice
Manson of the Federal Court (the judge) dated March 21, 2014.
[2]
The judge exercised his discretion to grant an
interlocutory injunction to the respondents under s. 24(1) of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Charter), as
well as under Rule 373(1) of the Federal Courts Rules, SOR/98-106.
[3]
The judge’s decision preserves certain rights
that were available under the Marihuana Medical Access Regulations,
SOR/2001-227 (the MMAR) thus staying the full coming into force of the Marihuana
for Medical Purposes Regulations, SOR/2013-119 (the MMPR) for the persons
and classes of persons covered by the order, pending determination of the trial
on the merits. The trial is currently scheduled to commence on February 23,
2015.
[4]
The underlying action is a claim that the MMPR
violates the respondents’ section 7 Charter rights to life, liberty and
security of the person in a manner not in accordance with the principles of
fundamental justice. In particular, the respondents challenge the MMPR’s
prohibition of the personal production of marihuana for medical purposes and
the possession limit of 150 grams of dried marihuana.
[5]
Prior to the coming into force of the MMPR, the MMAR
provided for a licence scheme whereby eligible persons who have a declaration
signed by a medical practitioner are issued an Authorization to Possess (ATP)
marihuana. Individuals who had an ATP could lawfully obtain access to marihuana
(i) through a Personal Production Licence pursuant to which the individual was
allowed to produce a determined quantity of marihuana for his own use; (ii)
through a Designated Person Licence pursuant to which the individual was able
to designate another person to produce his or her marihuana; (iii) by
purchasing dried marihuana directly from Health Canada which contracted with a
private company to produce and distribute marihuana.
[6]
The Crown (appellant) appeals the interlocutory
order on the ground that the respondents failed to conclusively establish
irreparable harm. It submits that the evidence on this point was at best
speculative and the judge therefore erred when he found the evidence sufficient
to establish the said harm. The appellant also contends that the judge erred in
finding that this was a “clear case” in which the interests of the respondents
outweighed the public interest and thus holding that the balance of convenience
lay in favour of the respondents.
[7]
The respondents cross-appeal on the remedy and
argue that the judge erred in that he limited the remedy to too narrow a group
of medical marihuana users. The respondents also submit that the judge ought to
have recognized that the 150-gram limit on possession under the MMPR does
constitute irreparable harm as it affected the respondents. They further argued
at hearing before this Court that it impacted on the respondents’ mobility.
Accordingly, the respondents submit that the judge’s order is too narrow in scope
and ought to be broadened.
I.
The Appeal
[8]
For the following reasons, I am of the view that
the judge did not misapprehend the facts, proceed on an erroneous principle of
law or insufficiently weigh a relevant factor which would allow our Court to
intervene on a discretionary interlocutory order (Canada
(Attorney General) v. Simon, 2012 FCA 312, [2012] F.C.J. No. 1538 [Elsipogtog
FCA] at para. 22 citing Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at pp.
154-156.).
[9]
The judge reviewed the legislative schemes at
issue, as well as the jurisprudence that gave rise to the requirement that the
government provide a legal source of marihuana for persons with a medical need
for the drug. He also referred to the three sets of regulations governing
access to medical marihuana in Canada, and described the individual applicants.
He then summarized the affidavit evidence for both sides, the relief sought at
trial, the interlocutory order sought, and outlined the issues before him.
[10]
In the analysis portion of his reasons, the
judge agreed with the parties that the applicable test for obtaining an
injunctive relief is the tri-partite test established by the Supreme
Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores
(MTS) Ltd., [1987] 1 S.C.R. 110 and affirmed in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:
- Is there a serious issue to be tried?
2. Will the applicants suffer irreparable harm if the interlocutory
relief does not issue?
- Does the balance of convenience favour
the issuance of the interlocutory relief requested?
[11]
Before the judge, the parties did not dispute
that there was a serious issue to be tried. The bulk of the judge’s analysis,
accordingly, relates to the irreparable harm and balance of convenience
branches of the test.
[12]
On the issue of irreparable harm, the judge
accepted the principle that economic hardship could contribute to a finding of
irreparable harm in combination with other factors and on the basis of
jurisprudence of our Court accepting serious economic hardship on individuals
as a relevant factor to consider in the context of interlocutory relief. The
judge was convinced on the evidence before him, that the price increase from
the personal production under the MMAR to the cost of purchase under the MMPR would
severely impoverish the applicants. This was an inference that was open for him
to make and was supported by the jurisprudence (see Elsipogtog FCA at
paras. 37-38).
[13]
The judge therefore found that the evidence demonstrated
that the applicants’ inability to afford marihuana would likely affect their
health, endanger their liberty or severely impoverish them. As such, a failure
to grant the interlocutory relief sought would result in irreparable harm
(judge’s reasons at paras. 92 and 96).
[14]
I cannot see a reviewable error of law or
misapprehension of the facts or inappropriate weighing of a factor by the
judge, nor that his order creates an obvious injustice.
[15]
Moving to the balance of convenience prong of
the test, the appellant submits that the judge was under a fundamental
misapprehension of the facts in how he addressed the “public interest” benefits
of the MMPR. Considering without deciding whether this is a “clear case” which
outweighs the public interest (judge’s reasons at para. 119), I am of the view
that the judge correctly applied the legal principles flowing from Elsipogtog
FCA to the facts of this case and there is no reason to disturb his finding
on balance of convenience. The judge weighed and considered the evidence both
parties placed before him and I cannot detect a reviewable error in the judge’s
legal analysis. In essence, the appellant is asking this Court to reweigh the
evidence. This is not the role of this Court.
II.
The Cross-Appeal
[16]
On the matter of the cross-appeal, the
respondents argue that although the order of the judge provides a remedy to the
respondents Mr. Neil Allard and Mr. Shawn Davey, it fails to provide relief to
the other two (2) respondents, Ms. Tanya Beemish and Mr. David Hebert.
Accordingly, they ask this Court to broaden the scope of the order to include
Ms. Beemish and Mr. Hebert.
[17]
Throughout his analysis, the judge does not
distinguish between the four (4) respondents to whom he refers as the “applicants”. On the irreparable harm portion of his
reasons, the judge uses the word “applicants” (judge’s reasons at paras. 77 and
96) without distinction. In addressing the balance of convenience, he again
refers to the “applicants” as “representatives of an identifiable group” and finds
that the balance of convenience lies with the
“applicants” (judge’s reasons at paras. 117 and 120).
[18]
While the judge carefully crafted and tailored his
order in a way that he considered minimally intrusive into the legislative
sphere (judge’s reasons at para. 121), it does not provide remedy to patients
who held valid production licences on September 30, 2013 but whose
authorizations to possess expired between September 30, 2013 and March 21, 2014
(the date of his order). The judge’s choice of March 21, 2014 as the “cut-off”
date has the effect of excluding Ms. Beemish and Mr. Hebert from his order.
[19]
With respect, the difficulty with the judge’s
finding is that although he provides a right (the interlocutory injunction) to
the four (4) respondents – Mr. Allard, Mr. Davey, Ms. Beemish and Mr. Hebert –
he does not, in contrast, explain why he deprives two (2) respondents – Ms.
Beemish and Mr. Hebert - of a remedy. After careful reading of the judge’s
reasons, I am left to speculate as to his intention.
[20]
In these circumstances, I cannot address
properly the determination the respondents are seeking as I am unable to
understand whether the judge intended to exclude Ms. Beemish and Mr Hebert or
simply forgot to deal with their situation. In other words, the judge’s reasons
do not allow this Court to perform its appellate function.
[21]
After considering making an assessment of the
evidence, I believe that the wiser course is to return the matter to the judge
with a direction that he specifically addresses the situation of Ms. Beemish
and Mr Hebert.
[22]
Finally, I do not agree with the respondents’
contention that the judge erred in his determination that they failed to show
irreparable harm based on the 150-gram possession limit. He exercised his
discretion and considered both parties’ interest, arguments and evidence. There
is no basis for our Court’s intervention on this issue and I therefore decline
to expand the scope of the judge’s order.
[23]
I would consequently dismiss the appeal with
costs and I would allow the cross-appeal without costs. I would remit the
matter back to the judge for determination solely on the issue of the scope of
the remedy, more particularly with respect to Ms. Beemish and Mr. Hebert, in
accordance with these reasons.
“Richard Boivin”
“I agree
M. Nadon J.A.”
“I agree
Wyman W. Webb J.A.”
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