Date: 20010621
Docket: T-850-01
Neutral Citation Number: 2001 FCT 683
BETWEEN:
ROBERT NERON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
TEITELBAUM, J:
[1] The applicant, Robert Neron, filed on May 28, 2001, an application which he titles "APPLICATION UNDER Section 18(1) of the Federal Court Act" then states, immediately under the above heading "NOTICE OF MOTION FOR INTERLOCUTORY ORDER OF MANDAMUS (Pursuant to Rule 372.1)".
[2] The applicant then goes on to state:
THE MOTION IS FOR an Order of Mandamus compelling the Respondent to grant an interim Section 56 Exemption until such time as Health Canada convinces the Applicant's doctors that the prescription should be changed and the exemption revoked.
THE GROUNDS ARE that waiting for my prescription to be filled while three doctors try to convince the pharmacist they are right violates my right to life though having my medicine while the pharmacist tries to convince my doctors to change their three prescriptions does not.
[3] Section 18.1 of the Federal Court Act (Act) deals with applications for judicial review while section 18(1) of the Act deals with the issue of the Trial Division's exclusive original jurisdiction relating to extraordinary remedies such as to issue an injunction, a writ of certiorari, writ of prohibition, writ of mandamus or grant declaratory relief against any federal board, commission or other tribunal.
[4] The applicant is representing himself and, unfortunately, is not very familiar with the Federal Court Act or the Federal Court Rules.
[5] In reading through the very brief motion record, it would appear that it is the intention of the applicant to proceed with an application for judicial review and, at the same time, make an application under section 18.2 for an interim order in the form of a mandamus to cause the Minister of Health to issue to the applicant an interim section 56 (of the Controlled Drugs and Substances Act (CDSA) exemption to use marijuana for medical purposes.
[6] Section 18.1 of the Act states:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(5) Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_:
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
(5) La Section de première instance peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées.
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[7] Section 18.1(2) of the Act clearly states that the judicial review application must be in respect of a decision and must be made within a delay of 30 days after the decision was communicated to the applicant.
[8] The decision referred to by the applicant is dated May 17, 2001 and, for a better comprehension, I believe it necessary to include same as part of my judgment.
May 17, 2001
Mr. Robert Néron
P.O. Box 1346
Hearst, Ontario
P0L 1N0
Dear Mr. Néron:
This is further to your application for an exemption under section 56 of the Controlled Drugs and Substances Act (CSDA) to use marihuana for a medical purpose. This is to inform you of our intention to refuse your application for an exemption and to provide you with an opportunity to respond before a decision is made. Based on a review of the information supplied, it has been determined that your application does not satisfy the requirements of section 56. The grounds for the proposed refusal of your application are:
· The report from the Toronto Hospital Functional Restoration Program, sent with your application concludes: "In respect of appropriateness of his medications, we regret that we cannot provide an opinion, since we do not have experience with the use of Cesamet. We have some general concerns regarding his use of a combination of opioids, benzodiazepine, Cesamet and marijuana. This concern extends to the lack of adequate pain and function improvement, despite treatment with strong opioids. You might consider seeking opinion of an addiction specialist for assessment of appropriateness of current treatment and possibility of dependency issues". Copies of consultation reports in relation to this recommendation were requested in a letter addressed to your physician. In view of the above comment, it is considered important to follow the recommendation of the Toronto Hospital Functional Restoration Program to determine whether the use of marihuana would be appropriate in your case.
· In our February 23, 2001, letter to your physician, we asked Dr. Proulx to provide further information on therapies tried and reason for their discontinuation and therapies that have been reasonably considered and reason for not using them. Some therapies have been described in your application. However, as there are other therapies available in Canada for pain management, it is important to demonstrate that these therapies have been tried or reasonably considered. Your application does not provide complete information concerning this aspect.
You may wish to communicate with Dr. Proulx and inform him of this intention and provide to the undersigned any additional information or submissions that support why your application should not be refused, based on the grounds stated above. You must provide this documentation in writing on or before May 31, 2001. If we do not hear from you on or before that date, your application will be refused without any further opportunity to respond. You may send any additional information by fax at (613) 952-2196 or by mail at the address below. Please ensure that you clearly indicate your file number in your correspondence.
Should you have any questions regarding this matter, you may contact the Evaluation and Research Coordination Division directly at (613) 954-6540 or at the following address:
Evaluation and Research Coordination Division
Drug Strategy and Controlled Substances Programme
Healthy Environments and Consumer Safety Branch
Health Canada
Address Locator: 3503B
Ottawa, Ontario
K1A 1B9
Sincerely,
"J. Gomber"
Jody Gomber, Ph. D.
Director General
Drug Strategy and
Controlled Substances
[9] As is apparent from the letter of May 17, 2001, the applicant was informed that he must provide certain documentation by no later than May 31, 2001 and that if this is not done "your application will be refused without further opportunity to respond".
[10] Although at the time the applicant filed his application for what he calls an application for judicial review, no final decision had been made as to the "Section 56" application. I am now satisfied that a final decision of refusal has been made and that this decision can be reviewed when all the delays for the filing of evidence have expired.
[11] On June 1, 2001, after the Court heard the present application, the respondent extended the delay to July 30, 2001 for the applicant to provide the additional information requested in the letter of May 17, 2001 (see letter of June 1, 2001 addressed to the Administrator of the Court).
[12] On June 1, 2001, the applicant filed a Notice of Motion, in writing, for an Extension of Time to File Supplementary Affidavit. Pursuant to Rule 361, the respondent has 10 days from service to serve and file a Motion Record. This would mean that the respondent would have to June 11, 2001 to serve and file a Reply.
[13] The respondent does not oppose the motion to permit the applicant to file a supplementary affidavit.
[14] Federal Court Rules 301 to 310 and following govern the procedure for the filing of affidavits by the parties and the delays that must be followed.
[15] As I have said, the applicant represents himself and it is apparent that he has absolutely no knowledge of how to proceed.
[16] The applicant filed an affidavit with his application. He states in paragraphs 2, 3, 4, 5, 9, 10, 11, 13, 15 and 16:
2. I am sick enough to have applied for a Section 56 exemption to smoke marijuana. I suffer from Spasmodic Retrocolis (Dystonia) due to an industrial accident in 1997. In 1998, I was 5'7" and weighed 187 pounds, now I'm 5'3" and 116 pounds. My head must be tilted backwards as far as possible and my shoulders are elevated as high as they can be. They are completely immobilized by intense spasms and chronic pain that conventional medication cannot relieve. I also suffer from nausea, loss of appetite, stress, tremors in both hands and head, pain in the joints, fatigue and insomnia. I also suffer from imbalance, dizziness and blurred vision.
3. I use marijuana to relieve the constant pain due to spasms. It relieves fatigue and helps with insomnia. It alleviates my depression, stimulates my appetite and restores my energy. Spasms wake me in the middle of the night and I cannot fall back asleep. In the morning when I get up, I must have cannabis to relieve nausea caused by not eating properly (1 small meal per day) and all those conventional medications that I take. Cannabis is the only effective and safe medication that helps soothe those intense spasms that I live with twenty four hours a day. I smoke cannabis, I cook with cannabis and I make tea with cannabis for relief from those ailments and so I can reduce and/or stop taking addictive prescription medications.
4. Even with marijuana and these prescribed medications, it is not enough. I wish I could live a normal life without all these medications but I don't have any choice. I like living and being around people I love, my son, my daughter and my wife of 9 years, but it's been three years now that I'm this sick. It's very hard. I live one day at a time and pray to God every day that today will be better than the day before. I thank Him for putting cannabis into my life to make me strong and clear.
5. On Jan. 8 2001, my doctor faxed my application to Health Canada. On Jan 9 2001, a Warrant to Search was obtained on the sworn information of Ontario Provincial Police Const. Julie Prudhomme that there were grounds to believe that "on or about the 9th day of Jan. 2001, Robert Neron unlawfully did produce cannabis marijuana committing an indictable offence under section 7(2) of the Act. All my marijuana medicine was seized.
9. On April 19 2001, I was informed that the Health Canada pharmacist had requested on Feb 23 2001 that Dr. Proulx provide essays on his thoughts about the prescription and documentation for ALL treatments tried and discontinued and for ALL treatments considered with reasons why they were not tried first. Dr. Proulx had not, as yet, complied, and could not be reached. Health Canada could not decide and I would have to wait to fill my prescription until he had. Health Canada did not inform me nor the Federal Court that they considered my application incomplete prior to my second trip to Ottawa for my appearance before Judge Rouleau on April 12 and made me ride my head brace the 2100km back and forth from Hearst for nothing.
10. Dr. Proulx has, to the degree he judged necessary, already provided this information once before right in the main Application form:
"Section E: Practitioner to complete.
v. All therapies that been tried and reason for their discontinuation.
vi. Therapies that have been reasonably considered and reason for not using them."
11. Now the Health Canada pharmacist is demanding that Dr. Proulx answer the same questions again, but better this time, at least to the satisfaction of the pharmacist quizzing him. Otherwise, the pharmacist will deny the patient the medicine that was prescribed his three doctors. Just as it would be ridiculous for any project engineer to have to convince the stockboy why he had ordered 4-inch pipes for that particular flow instead of 2-inch pipes, it is just as ridiculous for a doctor to have to convince the pharmacist why he prescribed a certain drug. Of course, just as the stockboy is free to suggest that the engineers amend their blueprints, so too, Health Canada pharmacists are free to suggest that Neron's three doctors amend their prescriptions. But just as the stockboy would never be allowed interfere with the prescribed materials, so too, the pharmacist should never be allowed to interfere with the prescribed treatment. Minister of Health Allan Rock is the stockboy and as such, he nor his staff are competent to be demanding explanations from doctors that only doctors are best qualified to judge.
13. The crux issue is: Will the court make me wait to fill my prescription until my three doctors can convince the Minister's pharmacist or will the court order I get my medicine until the Minister's pharmacist can convince the doctors to change their prescriptions. Think of it as a temporary, even preliminary exemption if you will, but let it be cancelled if and when the pharmacists prove my three doctors wrong. Don't make me wait while my three doctors have to prove prove (sic) the pharmacist wrong. The Minister must not deny me my medicine until he is finally convinced that my doctors are right. Let him deny me my medicine only after he has proven my doctors wrong.
15. Time is of the essence because their Letter of Intent to Refuse gives me until May 31, only 13 days, to get my doctor to come up with ALL the documentation and essays demanded or my Application will be officially refused without any further opportunity to respond. I don't know if I can get an appointment in the next 13 days let alone his written thoughts on all the issues raised but it would help for the court to put the onus on Health Canada to prove the doctor wrong rather than on the doctor have to rove himself right. The stockboy should not be running the pharmacy, the doctor should be.
16. This Affidavit is made in support of a motion for an Order of Mandamus compelling the Respondent to grant an interim Section 56 Exemption until such time as Health Canada convinces the doctors that the prescription should be changed and the exemption revoked on the grounds that waiting for my prescription to be filled while three doctors try to convince the pharmacist they are right violates my right to life though having my medicine while the pharmacist tries to convince my doctors to change their three prescriptions does not.
[17] As can be seen from paragraph 16 of the applicant's affidavit, he makes the request that the Court order the respondent, I believe he means the Minister of Health, to grant to him "an interim Section 56 exemption".
[18] I was given at the time of the hearing a letter dated May 30, 2001 from Dr. Bertrand Proulx, the applicant's doctor, in which he states:
May 30, 2001
To Whom It May Concern:
Re: Robert NERON
Your file OCS172801
A copy of the letter from Health Canada dated May 17, 2001 addressed to Mr. Néron was received on May 22, 2001.
Quoting from the first paragraph of the letter:
"....... inform you of our intention to refuse your application for an exemption" to use marihuana for a medical purpose under Section 56 of the CDSA.
The above-mentioned letter which contains my name, was not faxed to me.
Therefore, I am unable to meet the deadline of May 31, 2001 to provide additional information or submission that supports why Mr. Néron's application should not be refused.
I am therefore forced to stand in favor of Mr. Néron's Motion for an Order of Mandamus compelling the Respondent to grant an Interim Section 56 exemption until such time as they have received my full answers to their questions and where I will be recommending use of marihuana for medical purposes.
Yours truly,
"B. Proulx"
Bertrand Proulx, M.D., C.M., C.C.F.P.
[19] The supplementary affidavit presently filed by the applicant, dated June 1, 2001, is the applicant's own affidavit. The applicant attaches, as part of his affidavit, a number of exhibits such as a copy of the applicant's section 56 exemption application dated January 8, 2001 which contains under section E, a statement of the applicant's doctor as to why he is of the belief that the applicant should be granted a section 56 exemption.
[20] As I have stated, the applicant believes that, pursuant to Rule 372 of the Federal Court, I have the jurisdiction to issue the interim order of mandamus that he is requesting.
372. (1) A motion under this Part may not be brought before the commencement of a proceeding except in a case of urgency.
Undertaking to commence proceeding
372(2)
(2) A party bringing a motion before the commencement of a proceeding shall undertake to commence the proceeding within the time fixed by the Court.
372. (1) Une requête ne peut être présentée en vertu de la présente partie avant l'introduction de l'instance, sauf en cas d'urgence.
Engagement
372(2)
(2) La personne qui présente une requête visée au paragraphe (1) s'engage à introduire l'instance dans le délai fixé par la Cour.
and is found under Part 8 of the Rules and is titled Preservation of Rights in Proceedings - Partie 8 Sauvegarde des droits.
[22] I am satisfied that even if I were to have sufficient evidence before me that would enable me to grant the interim order requested, Rule 372 is meant to safeguard an applicant's right in the case of an urgency and pending disposition of proceedings.
[23] The issue before me is not a preservation of a right. The applicant will not lose any right if I do not grant the interim order he now requests. It simply means, and I do not minimize the seriousness of his request, that the applicant would have to proceed with an application for judicial review by serving and filing such an application with supporting affidavits from himself and from his doctor or doctors, if that is his desire, and then make a request pursuant to section 18(2) of the Act, again with the necessary evidence.
[24] If this were to be done, the respondent would be granted a short delay, because of the urgency of the issue, to file its evidence.
[25] In this specific case, I am prepared to allow the present application before me to be the commencement of an application for judicial review. I am prepared to allow the applicant to submit sufficient evidence, one or more affidavits, to show urgency and to show by means of a detailed affidavit from one or more medical doctors why it is necessary that the applicant be permitted the medical use of marijuana.
[26] The applicant shall have a delay of 10 days from today's date to file any further affidavits he may wish to serve and file in support of his claim.
[27] It is up to the applicant to file this evidence as quickly as possible. Within 10 days of serving the affidavits on the respondent, if he wishes to serve and file any further affidavits, the respondent shall file, if that is respondent's wish, whatever affidavit evidence he wishes to place before the Court.
[28] The applicant should request that he be granted an expedited hearing, to which, because of the seriousness of the present request, I am sure the Court will give serious consideration.
[29] I believe it is necessary for me to comment on the attitude of the applicant and of those who attended the hearing with him, who are also applicants in other motions before me relating to the same subject matter.
[30] It must be understood that at the present time in Canada it is a criminal offence to grow and use marijuana even for medicinal purposes unless permitted pursuant to section 56 of the CDSA. Therefore, to be permitted the use of marijuana for medical reasons, the person making such a request must show sufficient evidence that the applicant requires marijuana to alleviate pain or nausea. Having said this, the respondent has a duty not to put impediments in the way of such requests that would make the granting of such a request under section 56 illusory. The respondent should, first of all, ensure that such a request as is being made by the present applicant be dealt with in the shortest possible delay, not months as appears to be happening in this case.
[31] Secondly, the consideration of such requests should be given in a generous and sympathetic manner and not in a restrictive or narrow manner. Any doubt, if the person is ill, should and must be resolved in favour of the applicant.
O R D E R
[32] Therefore, for the reasons above stated, the present application now before the Court is to be considered an application for judicial review of a decision dated May 17, 2001.
[33] The delays, according to the rules of the Federal Court, commence as of today unless shortened by the present decision.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
June 21, 2001
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