Date: 20030729
Docket: T-638-03
Citation: 2003 FC927
Toronto, Ontario, July 29, 2003
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
MICHAEL PATRIQUEN
Applicant
and
LUCIE McLUNG, THE COMMISSIONER OF
CORRECTIONS OF THE CORRECTIONAL SERVICE OF CANADA,
REMI GOBEIL, THE DEPUTY COMMISSIONER
OF CORRECTIONS (ATLANTIC),
MICHAEL CORBETT, INSTITUTIONAL HEAD
OF WESTMORLAND INSTITUTION
DR. CHRISTOPHER LEVESQUE in his capacity as
INSTITUTIONAL PHYSICIAN, WESTMORLAND INSTITUTION
THE HONOURABLE ANNE McLELLAN, MINISTER OF HEALTH
D. IAN GLENN, CHAIRPERSON, THE NATIONAL PAROLE BOARD
Respondents
REASONS FOR ORDER AND ORDER
[1] This is a motion seeking an interlocutory injunction requiring Health Canada to provide the Applicant with a supply of marijuana while incarcerated. As alternative interim relief, the Applicant asked this Court to issue an interlocutory injunction compelling Health Canada to approve an organization called the British Columbia Compassion Club Society as a licensed dealer of marijuana under the Narcotic Control Regulations so that it may supply him with marijuana while incarcerated.
FACTS
[2] The Applicant deposed that he has smoked marijuana from high school until the time of his incarceration, i.e. September 10, 2002, which represents a period of about 35 years.
[3] Dr. Susan Lappin, a physician and surgeon from Nova Scotia, stated in her affidavit that she has been the family doctor to the Patriquen family, including the Applicant, for many years. The Applicant deposed that in March 2000, Dr. Lappin submitted an application on his behalf to Health Canada for an exemption under the Controlled Drugs and Substances Act [the CDSA] to use cannabis to treat medical conditions.
[4] On August 16, 2001, Health Canada provided a favourable response to his request:
... you are hereby exempted from the application of subsection 4(1) (possession) and section 7 (production/cultivation) of the CDSA with respect to cannabis (marihuana), for the medical purpose indicated in your application.
Scope of the Exemption:
This exemption effectively allows you to produce/cultivate and/or possess cannabis (marihuana) plant material, subject to the terms and conditions herein.
This exception is only valid in Canada, and applies only to the production/cultivation (indoors) and possession of the substance included in sub-item 1.(2) of Schedule II to the CDSA - namely cannabis (marihuana) - (hereinafter referred to as the "controlled substance"), and which includes only plant material. This exemption does not apply to derivatives of marihuana such as hashish, hash oil, etc.
This exemption is only applicable if you comply with the following conditions:
· You may only produce/cultivate or possess the controlled substance for personal use in the treatment of the symptoms indicated in your application; you may not allow any other person to use any of your supply of this substance.
· At the location where you produce/cultivate marihuana, you are allowed to have under indoor production/cultivation and in your possession a quantity that is no more than a total of ten (10) marihuana plants at any stage of maturity at your ordinary residence and no more than four hundred and fifty (450) grams of usable marihuana. Away from your ordinary residence, you are allowed to have in your possession no more than a total of sixty (60) grams of usable marihuana.
This exemption does not allow you to:
· Import, export or traffic in the controlled substance, within the meaning given to those words by the CDSA.
[5] In February 2000, the Applicant was charged with conspiring to possess cannabis (marijuana) for the purpose of trafficking and cultivation. In June 2000, he was charged with participating in the sale of cannabis (marijuana) in August of 1999 in Newfoundland, and for his role in growing cannabis (marijuana) in the homes of two friends in rural Nova Scotia. He was admitted to bail on all charges.
[6] The Applicant also informed the Court that he has a criminal record consisting of a conviction for impaired driving, possession of cannabis (marijuana) and possession of cannabis (marijuana) for the purpose of trafficking, dating from the seventies to recently. The most recent conviction was on September 10, 2002, when he was sentenced to six years imprisonment and admitted to Springhill Penitentiary on September 13, 2002. From that point on, the Applicant has consistently requested that he have access to cannabis (marijuana) pursuant to his lawful exemption. Specifically, the Applicant asked that his consumption of marijuana be limited to attending health care to consume an appropriate amount of baked goods (cookies) to be kept in the custody of health care.
[7] In his affidavit, the Applicant mentioned that he has lost 45.5 pounds (in fact, he weighed 202 pounds on September 9, 2002, and as of May 5, 2003, he weighed 153.4 pounds) since the date of his sentencing and he is suggesting that his loss of appetite is due to the penitentiary authorities' failing to provide him with marijuana.
[8] On April 22, 2003, the Applicant commenced an application for judicial review alleging that the Correctional Service of Canada be required to provide him with access to a supply of marijuana as "essential health care", and that its failure to do so violates his rights under sections 85 to 88 of the Corrections and Conditional Release Act, as well as section 7 of the Canadian Charter of Rights and Freedoms.
ISSUES
[9] Is the Applicant meeting the test developed by the Supreme Court of Canada in RJR- MacDonald v. Canada, [1994] 1 S.C.R. 311, for granting the interlocutory injunctions, i.e. whether there is a serious issue to be tried, whether the Applicant would suffer irreparable harm if the injunction was not granted, and whether the balance of convenience favours the Applicant?
ANALYSIS
Serious Issue to be Tried
[10] In my view, both parties have dramatized the situation concerning the issue to be tried. Indeed, this is not a complicated issue: the Applicant, after a proper application, has been granted an exemption from the application of subsection 4(1) and section 7 of the CDSA with respect to marijuana for the medical purpose indicated in his application. He was finally issued an authorization and license on July 17, 2002, less than two months prior to his incarceration.
[11] To say the least, the Applicant's consumption of marijuana started a long time before this request for exemption. He is now in jail asking to be allowed to have access to marijuana through food that would have to be prepared by the health care centre of the institution.
[12] It is not the first time that this Court is faced with a situation where individuals who were granted an exemption for cannabis consumption were prevented from doing so because of its inaccessibility. In other cases, the problem of the exemption was resolved in allowing the exempted individuals to produce and cultivate the controlled substance for their personal use. In the case at bar, however, I doubt that we are ready to allow inmates to cultivate marijuana in their cells.
[13] The opportunity and feasability of preparing goods containing marijuana is a question that would have to be addressed by the Correctional Service of Canada. In my view, that matter is for another day.
[14] As submitted by the Respondents, to examine whether there is a serious issue to be tried, this Court must make a preliminary assessment of the merits of the case. I disagree with the Respondents that this case requires me to go more in depth because, as suggested, the result of this interlocutory motion would amount to a final determination of the proceeding.
[15] The Corrections and Conditional Release Act requires the Correctional Service of Canada to mandatorily provide "essential health care" to prisoners and, alternatively, reasonable access to non-essential mental health care that will contribute to the inmates' rehabilitation and successful reintegration into the community (sections 89 and 86 of the Act).
[16] The issue raised by the Applicant is whether providing him access to baked goods containing cannabis represents "essential health care" which amounts to, at this stage, a serious issue to be tried. I have no hesitation in concluding that there is a serious issue to be tried.
Irreparable Harm
[17] The Applicant suggests that since his incarceration, he has not had access to marijuana and his health has deteriorated to the point that he lost 48.6 pounds.
[18] I have carefully read the affidavit of the Applicant's family physician, Dr. Lappin. I also reviewed the affidavit of Dr. Christopher Levesque and of Michael Corbett, warden of Westmorland Institution.
[19] It appears from the evidence that the last physician to see and examine the Applicant was Dr. Levesque. On her side, Dr. Lappin has not seen the Applicant for eight to nine months and has made her affidavit with respect to his condition mostly based on a letter received from counsel for the Applicant, Mr. Conroy. At paragraph 7 of her affidavit, Dr. Lappin affirmed:
That I have been kept informed by Mr. Patriquen as to the deterioration in his health and the amount of pain he has been suffering since his incarceration and his lack of access to cannabis (marijuana) and I am very concerned as to his medical situation as there was a marked improvement in his condition when he was not in custody after he was able to access cannabis (marijuana) and he now appears to be sliding back into a similar situation to what he was in before such access.
[20] She went on to say:
... I am concerned that if he is not provided with Cannabis (marijuana) or given reasonable access to such, pursuant to his lawful exemption, that he will soon require such under 2.a. of Directive 800 as emergency health care services.
[21] These affirmations are in total contradiction with the affidavit of Dr. Levesque, who has been a physician in the Department of Emergency Medicine at the Moncton Hospital since September 1985. From December 12, 2002 to May 15, 2003, Dr. Levesque has seen the Applicant on eight separate occasions within the institution. The content of his affidavit is quite detailed and provides more evidence on the medical condition of the Applicant than that of Dr. Lappin's.
[22] Dr. Levesque mentioned that for many months, the Applicant denied him access to his medical records. In April 2003, the Applicant permitted Dr. Levesque to speak with Dr. Lappin. However, as Dr. Levesque said, the Applicant continues to deny him as well as the institution access to Dr. Lappin's record of the Applicant's medical history.
[23] Dr. Levesque referred to the Applicant's pain symptoms as the result of neck and shoulder injuries incurred while working in 1992, and aggravated in a motor vehicle accident in 1999. Dr. Levesque wanted the Applicant to undergo an x-ray of his spinal column to ascertain the current status of his condition, which was refused by the Applicant on two occasions, in December 2002 and January 2003.
[24] The result of Dr. Levesque's report is that the Applicant is not in as bad a medical condition as he pretends. Furthermore, Mr. Corbett deposed that the Applicant walks outside almost on a daily basis. It seems to me that the Applicant wants to have access to marijuana to resolve his problems.
[25] Dr. Levesque disagrees with Dr. Lappin and provides that she has not examined the Applicant during the current period of his incarceration. Further, Dr. Lappin is not on the Applicant's approved telephone list which means that there were no communications between the Applicant and Dr. Lappin for the period of his incarceration.
[26] Given the foregoing, I have serious doubts about the reliability of Dr. Lappin's report, whereas I have no hesitation in relying on Dr. Levesque's report as well as on the evidence provided by Mr. Corbett, Warden of Westmorland Institution.
[27] The Respondents raised an issue as to the validity of the Applicant's exemption from the CDSA. However, I am of the opinion that this matter is not before me.
[28] In any event, the Applicant's medical condition, and for that matter anybody's medical condition, as submitted by Dr. Levesque, is in constant evolution and change. Indeed, the pain symptoms which the Applicant claims to suffer from are due to an 11 year old work accident and were aggravated by a car accident that took place in 1999.
[29] Dr. Lappin suggests that the medical condition of the Applicant improved during the period preceding his incarceration. The authorization was granted on July 17, 2002 and he was incarcerated on September 9, 2002. Given that the Applicant's use of marijuana goes back some 35 years, i.e. before and after his work accident as well as before and after his car accident, I do not know how one can make a valid assessment as to the Applicant's medical condition before and after any specific moment of his life.
[30] The Applicant is trying to convince this Court that using marijuana is the panacea that would resolve his problems. If that were the case, those problems would have been resolved a long time ago.
[31] Although the Applicant did request to be allowed access to marijuana before the sentencing judge on September 10, 2002, the fact remains that he waited more than seven months after the beginning of his incarceration before filing this motion.
[32] It is my finding that the Applicant failed to convince this Court that he will suffer irreparable harm if he is not granted access to marijuana.
The Balance of Convenience
[33] The Correctional Service of Canada Rules prohibit the possession and use of marijuana in federal penitentiaries. It would not, in my view, be appropriate for this Court to order Health Canada to provide marijuana to the Applicant, whether directly or indirectly through the mandatory licensing of third party agencies as suggested by the Applicant. The evidence provided by Mr. Corbett suggests that allowing marijuana into the Institution for distribution to inmates would pose an unreasonable risk to the safety of staff members, inmates and visitors, as well as to the overall security of the Institution. Mr. Corbett further submitted that the Institution does not have the means to verify the marijuana content of any marijuana "cookies" or other baked goods.
[34] I have no hesitation in concluding that the balance of convenience largely favours the Respondent.
CONCLUSIONS
[35] Although there is a serious issue to be addressed by different levels of authority regarding this matter, the Applicant failed to provide evidence illustrating that the injunction requested should be granted in this case.
ORDER
IT IS HEREBY ORDERED THAT:
- This application for an interlocutory injunction requiring Health Canada to provide the Applicant with a supply of marijuana while incarcerated is dismissed;
- Costs in favour of the Respondents.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-638-03
STYLE OF CAUSE: MICHAEL PATRIQUEN
Applicant
and
LUCIE McLUNG, THE COMMISSIONER OF
CORRECTIONS OF THE CORRECTIONAL SERVICE OF CANADA, REMI GOBEIL, THE DEPUTY COMMISSIONER OF CORRECTIONS (ATLANTIC),
MICHAEL CORBETT, INSTITUTIONAL HEAD
OF WESTMORLAND INSTITUTION
DR. CHRISTOPHER LEVESQUE in his capacity as
INSTITUTIONAL PHYSICIAN, WESTMORLAND INSTITUTION THE HONOURABLE ANNE McLELLAN, MINISTER OF HEALTH D. IAN GLENN, CHAIRPERSON, THE NATIONAL PAROLE BOARD
Respondents
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 2, 2003
REASONS FOR ORDER AND ORDER : Mr. Justice Pierre Blais
DATED: July 29, 2003
APPEARANCES:
Mr. John Convoy FOR APPLICANT
Messrs. Sean Gaudet and FOR RESPONDENTS
Malcolm Palmer
SOLICITORS OF RECORD:
Convoy & Company FOR APPLICANT
Abbotsford, BC
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20030729
Docket: T-638-03
BETWEEN:
MICHAEL PATRIQUEN
Applicant
and
LUCIE McLUNG, THE COMMISSIONER OF
CORRECTIONS OF THE CORRECTIONAL SERVICE OF CANADA, REMI GOBEIL, THE DEPUTY COMMISSIONER OF CORRECTIONS (ATLANTIC), MICHAEL CORBETT, INSTITUTIONAL HEAD
OF WESTMORLAND INSTITUTION
DR. CHRISTOPHER LEVESQUE in his capacity as INSTITUTIONAL PHYSICIAN, WESTMORLAND INSTITUTION THE HONOURABLE ANNE McLELLAN, MINISTER OF HEALTH D. IAN GLENN, CHAIRPERSON, THE NATIONAL PAROLE BOARD
Respondents
REASONS FOR ORDER
AND ORDER
Email this Content