Docket:
T-2030-13
Citation: 2014 FC 280
Vancouver, British Columbia, March 21, 2014
PRESENT: The Honourable Mr. Justice Manson
|
BETWEEN:
|
|
NEIL ALLARD
TANYA BEEMISH
DAVID HEBERT
SHAWN DAVEY
|
|
Applicants/Plaintiffs
|
|
and
|
|
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
|
|
Respondent/Defendant
|
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
This is a motion for an interlocutory injunction
or an interlocutory constitutional exemption together with an order in the
nature of mandamus pursuant to subsection 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 [the
Charter], and Rule 373(1) of the Federal Court Rules [the Rules].
The moving parties [the Applicants] are the Plaintiffs in this action.
[2]
The action underlying the motion at issue is for
various declarations pursuant to subsections 24(1) and 52(1) of the Charter.
The declarations sought rely on section 7 of the Charter to invalidate recent
changes to a regulatory scheme enacted by the federal government, which dictate
the circumstances in which medically-approved patients may obtain and possess
marihuana. These changes, contained in the Marihuana for Medical
Purposes Regulations, SOR/2013-119 [the MMPR], repeal the Marihuana
Medical Access Regulations, SOR/2001-227 [the MMAR] in their entirety by
March 31, 2014.
[3]
The relief sought by the Applicants would
preserve the provisions of the MMAR and limit the applicability of certain provisions
of the MMPR, pending a final resolution of the merits of their claims. This
motion was filed with the Court on January 31, 2014.
[4]
For the reasons that follow, I grant limited
relief to the Applicants by preserving certain rights under the MMAR as of
September 30, 2013. The motion is otherwise dismissed.
A. Legislative Scheme
I. Introduction
[5]
The requirement of the government to provide
reasonable access to marihuana for medical purposes was recognized by R v
Parker, [2000] OJ No 2787 (CA) [Parker]
and affirmed in R v Mernagh, 2013 ONCA 67, among others. In brief, Parker
held that a failure to provide a viable medical exemption from the
provisions of the Controlled Drugs and
Substances Act, SC 1996, c 19 [CDSA] violated the
liberty and security of the person guarantees under section 7 of the Charter,
in a manner that was inconsistent with the principles of fundamental justice,
by forcing certain individuals to choose between their liberty and their
health. This direction from the Ontario Court of Appeal led first to exemptions
from the CDSA pursuant to section 56 of that act, and then to the establishment
of the MMAR.
[6]
Today, the consumption and distribution of
medical marihuana in Canada is governed by three sets of regulations: the Narcotic
Control Regulations, CRC, c 1041 [the NCR], the MMAR and the MMPR. The NCR
allows medical practitioners to prescribe marihuana despite the provisions of
the CDSA. The MMAR was, until June 6, 2013, the primary regulatory mechanism
which dictated the circumstances under which this exemption can be exercised.
As of June 6, 2013, the MMPR began to take effect. These regulations made
changes to the NCR and the MMAR and will run concurrent with the MMAR until
March 31, 2014, when the MMAR is scheduled to be repealed in its entirety.
II. Narcotic Control Regulations
[7]
As of the changes made by the MMPR on June 6,
2013, subsection 53(5) of the NCR provides that a medical practitioner may
prescribe, transfer or administer dried marihuana to a person under their
professional treatment if that dried marihuana is required for the condition
being treated.
[8]
Prior to June 6, 2013, section 53 of the NCR was
not limited to “dried” marihuana.
III. Marihuana Medical Access Regulations
[9]
While portions of the MMPR have taken effect,
the MMAR is effectively the current regulatory regime for possession and
production of marihuana for medicinal uses. As of March 31, 2014, it will be
repealed in its entirety.
[10]
The MMAR provides for a licence scheme whereby
eligible persons who are prescribed marihuana by a medical practitioner are
issued an Authorization to Possess [ATP] marihuana pursuant to section 11. A
valid ATP authorizes the holder to possess up to 30 times the amount of
marihuana they are prescribed to consume daily.
[11]
The MMAR also provides for three ways by which a
person may obtain marihuana. Two are relevant to this motion. They may either
produce marihuana themselves under a Personal-use Production Licence [PPL],
pursuant to section 24, or have a designated person produce marihuana for them under
a Designated-person Production Licence [DPL], pursuant to section 34. These
licences dictate both the maximum number of plants that can be grown
simultaneously and the maximum quantity of dried marihuana that can be stored
on a production site at any time.
[12]
Production of marihuana in accordance with a PPL
or DPL must be conducted only on the site designated on that PPL or
DPL. This site may be indoors or outdoors, but not both simultaneously. There
are no restrictions as to the location of the production facility beyond the
fact that if outdoors, it must not be adjacent to a school, public playground,
daycare facility or other public place frequented mainly by persons less than
18 years of age. Production in a dwelling-place is allowed.
[13]
On June 7, 2013, the MMAR was amended to
prohibit the issuance of PPLs and DPLs after September 30, 2013, unless the
application for such a licence was received prior to September 30, 2013. This
amendment was made in anticipation of the regulatory changes brought by the
MMPR.
IV. Marihuana for Medical Purposes Regulations
[14]
The MMPR makes substantial changes to the
production scheme for medical marihuana in Canada. Notably, all PPLs and DPLs
are no longer valid as of the repeal of the MMAR, and the amount that an
individual is authorized to posses may be lowered in some cases.
[15]
The MMPR mandates that dried marihuana be
produced by a Licensed Producer [LP], pursuant to section 12 of the MMPR.
Individuals who formerly were or could be issued an ATP must register the
prescription of a medical practitioner with an LP to obtain dried marihuana. If
they do so, section 3 authorizes them to obtain and possess marihuana produced
by that LP. The amount authorized for possession under section 5 is lower than
under the MMAR: either 150 grams or 30 times the amount prescribed for daily
consumption by the individual’s medical practitioner, whichever is less.
[16]
An LP is required to meet various quality and
security measures as per sections 12-101. This includes provisions in sections
13 and 14 which state that the production site may not be outdoors or in a
dwelling-place.
B. The Applicants
[17]
The Applicants all hold or held an ATP and/or a
PPL or DPL. Their affidavits outline their concerns that the repeal of the MMAR
and the regulatory changes introduced in the MMPR will bring them increased
costs and decrease the safety and quality of the marihuana they consume.
I. Neil Allard
[18]
Mr. Allard is 59 years of age and is a resident
of Nanaimo, British Columbia. He was employed as a counsellor with
Veteran’s Affairs Canada until 1995, when myalgic encephalomyelitis (commonly
known as Chronic Fatigue Syndrome) [CFS] caused him to leave work. He was
granted permanent medical retirement in 1999 and has been living on a
combination of pensions since that time. These pensions currently provide him
with a net income of $2,700 per month. At age 65 his income will drop to $2,000
per month.
[19]
Mr. Allard states that he began using marihuana
to treat his CFS symptoms after he realized he was sensitive to pharmaceutical
medication. In 1998, he was referred to the British Columbia Compassion Club
Society with a note of support from his physician. By 2001 it cost him
approximately $500 per month to obtain marihuana through the Society. As a
result of this cost, he took steps to obtain an ATP and a PPL. He currently
holds a PPL to produce up to 98 plants and store 4,410 grams indoors. He also
holds an ATP which authorizes him to possess up to 600 grams on his person at
any time. Both expire on March 31, 2014.
[20]
In 2004, he received his first PPL and began
cultivating marihuana at his residence. Since that time he has moved twice and
claims to have spent thousands of dollars to renovate his current basement to
accommodate the cultivation of marihuana indoors. This included professional
wiring, insulation, venting, painting, plumbing and the purchase of growing
equipment to facilitate the production of marihuana. In addition, he has
purchased motion detectors, carbon dioxide and smoke alarms, and has a tall
fence at his property line.
[21]
Mr. Allard ingests his marihuana through various
means. Based on his current means of production, this rate of consumption costs
approximately $200-$300 per month. In addition, he estimates that the financial
cost of setting up the production sites at his three residences to be
approximately $35,000.
[22]
Mr. Allard estimates that to maintain his
current dosage through an LP at a cost of $8-10 per gram would cost
approximately $6,000 per month, and $3,000 at a cost of $5 per gram. In either
event, it is more than his monthly income either now or upon his retirement,
and these costs are not eligible for assistance under any health care plan.
Given these increased costs, Mr. Allard fears that he may have to risk
imprisonment by continuing to produce marihuana or procuring it through the
illicit market.
[23]
Mr. Allard further notes that he has been able
to identify strains of marihuana which are specific to his medical needs and
continues to experiment with other strains that alleviate his symptoms in an
effective way, as some strains exacerbate his symptoms. He states that the strains
he requires may not be available through an LP, and if he needed to resort to
the black market, he would have no guarantees as to the quality or safety of
the product.
II. Tanya Beemish and David Hebert
[24]
Ms. Beemish and Mr. Hebert are a common law
couple who reside in Surrey, British Columbia. Ms. Beemish is 27 years old and
Mr. Hebert is 32. Ms. Beemish was employed as a barista until June, 2012, when
she went on sick leave. Since December, 2012, she has received a Canada Pension
Plan disability pension of $596.73 monthly. She suffers from type one diabetes
and gastroparesis.
[25]
On January 4, 2013, Ms. Beemish received an ATP
to alleviate her symptoms of extreme nausea, vomiting, pain, lack of appetite,
and insomnia. She uses a daily dose of 2-10 grams which she ingests via smoking
or vaporizing. Her ATP, which authorized her to possess 150 grams, expired on
January 4, 2014.
[26]
Mr. Hebert is the Health Canada approved designated
grower for Ms. Beemish. He is employed as an Environmental Protection Officer.
His DPL allowed him to produce 25 plants indoors and store 1125 grams of
marihuana at the production site. He produced the marihuana for Ms. Beemish in
a secure room attached to their townhouse garage, which was ventilated, and had
mold controls and fire alarms. While his DPL expired on January 4, 2014, he was
unable to legally produce marihuana as of October 30, 2013, when he moved
residences and was unable to renew his DPL.
[27]
Mr. Hebert estimates that the cost to produce
the marihuana was approximately $0.50 per gram, exclusive of capital costs to
create his production facility. Both Mr. Hebert and Ms. Beemish state that
costs of $8-12 dollars for marihuana produced by an LP is beyond what is
affordable, noting that even a cost of $5 per gram is a tenfold increase in
what it costs Mr. Hebert to produce marihuana for Ms. Beemish. They fear that
they will have to turn to the black market to find affordable marihuana, with no
guarantees as to the quality and safety of the product.
III. Shawn Davey
[28]
Mr. Davey is 37 years old and resides in Abbotsford, British Columbia. Mr. Davey was employed building custom vehicles until June
16, 2000, when he was involved in a motor vehicle accident in which he suffered
a serious brain injury. As a result of an insurance settlement and his Canada
Pension Plan Disability pension, his monthly income is approximately $5,000.
[29]
Following his accident, Mr. Davey was prescribed
various medications for the next six years to deal with chronic pain as a
result of his accident. These medications cost him $3,000 per month. He began
using marihuana and found it effectively dealt with his symptoms and allowed
him to stop using other medications. Starting in 2007, he began receiving
marihuana through a designated grower. However, this grower was unable to
consistently provide a safe supply of high quality. After switching designated
growers and encountering similar problems, he decided to produce his own marihuana.
He currently possesses an ATP, which authorizes him to possess 750 grams at any
time. He also possess a PPL, which authorizes him to produce 122 plants indoors
and store 5,490 grams at the site of production. These licences expire on March
31, 2014.
[30]
His production facility is on an outbuilding on
his property. He can produce his marihuana at a cost between $1 and $2 per
gram, and he uses approximately 25 grams per day, for a cost of between $750
and $1,500 per month, less than the $3,000 he spent on pharmaceutical
medications prior to when he began using medical marihuana.
[31]
Mr. Davey is concerned about the effectiveness
and quality of the marihuana produced by an LP, given his negative experience
with previous designated growers and because his marihuana needs require a
12-18% tetrahydrocannabinol [THC] content to alleviate his symptoms. He also is
worried about the increased cost, given that, at his current rate of
consumption, he would consume approximately $6,000 per month at a price of $8
per gram. He worries about having to resort to the black market as a result of
these regulatory changes.
C. Supporting Affidavit Evidence
I. Applicants’ Supporting Affidavits
(1) Zachary Walsh
[32]
Dr. Walsh is an Assistant Professor in the
Department of Psychology at the University of British Columbia.
[33]
Dr. Walsh details his research relating to
access to and reasons for the therapeutic use of marihuana in Canada. He includes two articles that he has prepared for the International Journal of Drug
Policy; one published, and one awaiting publication.
[34]
Dr. Walsh notes that approximately 1 million
Canadians reported using marihuana to treat self-defined medical conditions.
However, as of December, 2012, only 28,115 Canadians had a valid ATP.
[35]
Dr. Walsh also refers to research showing that
more than half of respondents in studies stated that financial considerations
impacted whether they were able to buy a sufficient amount of marihuana to
address their therapeutic needs. For example, 54% of respondents reported they
were sometimes, or never, able to afford to buy sufficient quantities of
marihuana to relieve their symptoms. Approximately one-third reported that they
often or always choose between marihuana and other necessities, such as food or
other medicines, because of a lack of money. In his opinion, this demonstrates
that the affordability of marihuana for therapeutic purposes remains a
significant barrier for many Canadians and especially the most seriously ill.
[36]
Dr. Walsh concludes by arguing that the MMPR,
even by the government’s cost-benefit analysis, will involve a significant
price increase which will impact the ability of patients to obtain marihuana
for therapeutic purposes.
(2) Susan Boyd
[37]
Dr. Susan Boyd is a Professor in the Faculty of
Human and Social Development at the University of Victoria. Her areas of study
include drug law and policy, and she is the co-author of the book “Killer
Weed: Marihuana Grow Ops, Media and Justice.”
[38]
Dr. Boyd notes that the overall crime rate in
2010 has fallen in both its volume and severity since the 1970s. She also
criticizes a review study by Darryl Plecas of the University of the Fraser Valley [Plecas report]. She notes that while that report purports to link grow
operations with violence, 89% of the grow operations referred to did not have
firearms or other weapons or hazards present. Only 6% had firearms on site –
only slightly higher than the 5.5% of the Canadian population who hold such licences.
[39]
Dr. Boyd also criticizes the risk of fire from
indoor marihuana grow operations as stated in the Plecas report. She
claims that the proportion of fires relating to grow operations was
exaggerated. In contrast to the 3.5% in 2001, 3.7% in 2002, and 4.7% in 2003,
only 1.21%, 1.02% and 1.3%, respectively, were reported in the Annual Statistical
Fire Report. Similarly, the Plecas report’s claims about the dangers in
booby-trapped grow operations were exaggerated: only 2.1% of grow
operations contained such hazards.
[40]
Dr. Boyd argues that safety of PPL and DPL sites
can be corrected by having better guidelines, education and monitoring of
marihuana production facilities, something that Health Canada has failed to do.
[41]
Dr. Boyd concludes that newspaper coverage has
created a persistent link between mold, fire and other property damage in a way
that is not supported by any statistical reality.
II. Respondent’s Supporting Affidavits
(1) Cpl. Shane Holmquist
[42]
Corporal Holmquist (acting) has been a member of
the RCMP since April, 2005. He is seconded to the Federal Serious
Organized Crime Section on the Coordinated Marihuana Enforcement Team, which
investigates marihuana grow operations, among other tasks. He has also
provided training to Health Canada Inspectors, Drug Investigators in Canada, and law enforcement personnel in the United States regarding the production and trafficking
of marihuana. In addition, he is the Provincial RCMP MMPR Coordinator for British Columbia, which involves him in the application process for approving LPs.
[43]
Cpl. Holmquist noted that as of October, 2013,
there were 25,809 PPLs and 4,231 DPLs validly held in Canada.
[44]
Cpl. Holmquist has attended numerous MMAR grow
operations where “monster plants” are grown and more marihuana is produced
than the licences allow. While this excess marihuana is supposed to be
destroyed, Cpl. Holmquist expressed his opinion that this rarely happens.
[45]
He also has seen that MMAR licences are used to
disguise commercial-scale grow-operations. He gave an example from 2013, when
he discovered a barn which had a licence under the MMAR, but 25 individuals
were involved in packaging marihuana in preparation for trafficking. He
supports this example with reference to an April, 2009, RCMP Criminal
Intelligence Brief entitled “A Review of Cases Related to the Medical Marihuana
Access Regulations,” which found 70 licensing violations and 40 instances where
those violations involved trafficking excess marihuana for profit. He opines
that the sale of excess marihuana is necessitated by the high cost of
electricity that the indoor production of marihuana entails. Cpl. Holmquist
suggests that selling this excess marihuana often involves collaboration with
organized crime.
[46]
Cpl. Holmquist also expresses concerns about the
terms of an individual’s ATP. In particular, he notes that trafficking may be
facilitated by the fact that an ATP can authorize a 30-day supply of marihuana
on the holder’s person. This can effectively shield a trafficker, holding a valid
ATP, from police scrutiny.
[47]
With regard to health and safety, Cpl. Holmquist
has witnessed the presence of mold and other chemical contaminations at
marihuana grow operations. Further, he notes that a residence which includes a
marihuana grow operation has a 24 times greater risk of a fire than one
without, given the extensive lighting systems needed to grow marihuana indoors,
the use of carbon dioxide generators, and the extraction process involved in
producing marihuana oil. Because of the concealed and controlled nature of many
grow operations, it makes it difficult for individuals to escape in the event of
fire, or for emergency workers to adequately and safely respond in the event of
an emergency. He also notes that injuries can occur to marihuana growers from
touching lighting systems and slipping on excess water.
[48]
Cpl. Holmquist pointed to an RCMP Criminal
Intelligence Brief entitled “Marihuana Grow Operations and Related Violence in Canada,” dated April, 2012, which states that “grow-rips,” or theft of medical marihuana,
is becoming increasingly common. These grow-rips often are violent and involve
the use of weapons. To prevent grow-rips, growers may arm themselves, thereby
increasing the risk of injury to bystanders.
[49]
Cpl. Holmquist also gives his opinion that
various marihuana-products, such as marihuana-infused candy suckers, could be
ingested by children living at a grow operation location.
[50]
Cpl. Holmquist contrasts the above with his
experience being involved with MMPR applications, which have strict growing,
security, and packaging standards that serve to address his concerns with the
MMAR.
(2)
Paul Grootendorst
[51]
Dr. Grootendorst is an Associate Professor in
the Faculty of Pharmacy at the University of Toronto. His research focuses on
health economics. He has provided an expert report with respect to projected
marketplace trends under the MMPR and the impacts on LPs if medical marihuana
users were not required to purchase medical marihuana from an LP or Health Canada.
[52]
Dr. Grootendorst’s opinion with respect to the
first issue is that the price of legal, commercially-sourced medical marihuana
will decline over time, so long as the market of users grows sufficiently large
over time. Dr. Grootendorst opines that it will.
[53]
With regard to the second issue, Dr.
Grootendorst opines that if medical marihuana users are exempt from the
requirement to purchase their marihuana from LPs or Health Canada, then the size of the medical marihuana market will be smaller. He hypothesizes that three
possible scenarios will result. The first is that prices of marihuana will
decline, but at a slower rate than they would if users were required to buy
from LPs. The second is that prices of medical marihuana will increase over
time. The third is that eventually no LPs will exist to produce medical
marihuana. Dr. Grootendorst does not express an opinion as to the likelihood of
these three scenarios.
(3) Jeannine Ritchot
[54]
Ms. Ritchot is the former Director of Medical
Marihuana Regulatory Reform from 2011-2013 at Health Canada. Prior to that, she
was the Director of the Bureau of Medical Cannabis, Office of Controlled
Substances, Controlled Substances and Tobacco Directorate, at Health Canada
from 2010-2011. Through these positions she oversaw the administration of the
MMAR and conducted policy development of the MMPR.
[55]
Ms. Ritchot notes that the goals of the MMAR
regime were to strike a balance between providing legal access to marihuana for
medical purposes while controlling access to a controlled substance, to respect
existing federal legislation such as the CDSA, and to protect the individual
and public health, security and safety of all Canadians. She opines that
the rapid expansion of those licensed to possess marihuana under the MMAR, from
477 in 2002 to 37,884 in January, 2014, has compromised the initial goals
of the program. In addition, she notes that as of December 3, 2013, the average
number of plants licensed for indoor growth was 101, the average number of
plants licensed for outdoor growth was 11, and the average daily dosage is 17.7
grams per day. Despite this, the average amount of marihuana used by those
being supplied by Health Canada was between 1 and 3 grams.
[56]
Some of the consequences of the rapid expansion
of the program has meant that a large amount of marihuana is being produced in
private residences and that Health Canada does not have the resources necessary
to conduct compliance and enforcement activities. In addition, Health Canada’s program to supply marihuana to patients cost $16.8 million for the three years
ending on March 31, 2013. Finally, Health Canada has received solicited and
unsolicited feedback from municipalities and first responders, homeowners, and
program participants about unanticipated problems with the MMAR regime. These
include violence, presence of firearms, diversion to the illicit market,
production over the limits authorized, the presence of mold, fire and
electrical hazards, toxic chemicals, the emission of noxious odours, and
various risks to children living in or near the residential growing operations.
[57]
Ms. Ritchot also describes the consultations
which took place with regard to the MMPR and in particular, law enforcement
representatives who submitted feedback were unanimous that the use of PPLs and
DPLs should be discontinued.
[58]
Ms. Ritchot describes the purposes of the new
MMPR as including: increasing individual and public health, safety and
security; treating marihuana as much like other medicinal drugs as possible;
facilitating access to multiple strains; returning Health Canada to its traditional role as regulator; and creating a stricter regulated business environment
for the production of marihuana.
(4)
Todd Cain
[59]
Mr. Cain is the Executive Director of Market
Development for the Healthy Environments and Consumer Safety Branch of Health Canada. His responsibilities include supporting the transition from the MMAR to the MMPR
and resolving issues in the development of a stable supply base for medical
marihuana by LPs.
[60]
Mr. Cain states that as part of the transition
strategy to the MMPR, Health Canada has been developing means by which a stable
and continuous supply of marihuana can be assured. One of the key mechanisms to
do so has been a publicity campaign to encourage applications from potential
LPs. This included partnerships with the private sector, such as the Ontario
Greenhouse Vegetable Growers, Flowers Canada Growers, and various provinces and
other federal government ministries. This strategy also included preparing
guidance documents for the application process and operating a call centre for
staff to answer questions from potential applicants.
[61]
Mr. Cain notes that as of February 4, 2014,
Health Canada has received 454 LP applications, 8 of which have been issued, 10
have been withdrawn, 24 have been refused, and the rest are in various stages
of review or screening. Mr. Cain estimates that approximately 25 new
applications are received each week.
[62]
As of January 30, 2014, six of the eight
approved LPs are ready to register clients. Mr. Cain indicates that the prices
range from $5 to $12 per gram, and a number of LPs are offering discounts to as
low as $3.00 per gram for low income users. Mr. Cain indicates that LPs have
stated that approximately 850kg of marihuana will be available for medicinal
use as of March 31, 2014. In addition, Health Canada has stockpiled between
400-500kg of marihuana from its previous production facility, and has approved
import from the Netherlands of over 100kg of marihuana in the case of supply
shortfalls. Mr. Cain also indicates that Health Canada took steps to forecast
consumer demand in a manner that was risk-adjusted for unforeseen
circumstances.
[63]
Based on these forecasts and the steps taken to
manage supply and demand, Mr. Cain states that Health Canada has taken
significant steps to ensure reasonable access to quality dried marihuana
through the transition period and into the future.
D. Relief Sought at Trial
[64]
The relief sought by the Applicants at trial can
be summarized as follows:
1. A
declaration pursuant to subsection 52(1) of the Charter that a constitutionally
viable exemption to enable the medical use, by medically approved persons, of
cannabis, in any of its effective forms, includes the right of the patient (or
a person designated as responsible for the patient), to not only possess and
use Cannabis in any of its forms, but also to cultivate or produce and possess
Cannabis in any form that is effective for the treatment of the patient’s
medical condition.
2. A
declaration pursuant to subsection 52(1) of the Charter that the MMPR is
unconstitutional only to the extent that it unreasonably restricts the section
7 Charter rights of a medically approved patient to reasonable access to their
medicine by way of a safe and continuous supply, by failing to allow for
continued personal or designated production of marihuana, and cannot be saved
by section 1.
3. Constitutional
declarations pursuant to subsection 52(1) that would address the limitations:
A. On “dried” marihuana in the NCR, MMAR and MMPR;
B. The prohibitions on LPs from producing outdoors or in a
dwelling-house; and
C. The 150 gram maximum
on the amount a patient may possess and an LP may ship.
4. An
Order under subsection 24(1) of the Charter granting a permanent injunction or
a permanent constitutional exemption of the same form sought in the interim in
this motion, which is described below.
ORDER REQUESTED
[65]
An Order under section 24(1) of the Charter is
sought in the nature of:
1. An interim constitutional exemption from ss.4, 5
and 7 of the Controlled Drugs and Substances Act for all persons
medically approved under the Narcotic Control Regulations C.R.C., c.
1041 (NCR), the MMAR or the MMPR, including those patients
who have a caregiver ‘person responsible’ for them designated to produce for
them, including an exemption for that caregiver ‘person responsible’ designated
producer, pending trial of the merits of the action or such further Order of
the court as may be necessary;
or, alternatively
2. An interlocutory exemption/injunction preserving
the provisions of the MMAR relating to personal production, possession,
production location and storage, by a patient or designated caregiver ‘person
responsible for the patient’ and related ancillary provisions, and if
necessary, limiting the applicability of certain provisions of the MMPR to
such patients or designated caregivers that are inconsistent with their s. 7
constitutional right under the Charter pending the decision of this
Court on the merits of this action.
Or alternatively, and together with
3. An
interim/interlocutory order in the nature of mandamus to compel the
Defendant to process all applications, renewals and modifications to any licences
pursuant to the MMAR in accordance with all of its provisions (other
than those challenged as unconstitutional herein), notwithstanding ss.230,
233-234, 237-238, 240-243 of the MMPR relating to applications under the
MMAR after September 30th, 2013 as reflected in the amended MMAR
sections 41-48.
And such further and other relief as the court deems
appropriate and just in all of the circumstances.
ISSUES
[66]
The issues are as follows:
A. Have the Applicants met the requirements for an interlocutory injunction?
B. Given the Applicants meet the requirements for an interlocutory
injunction, what is the appropriate relief to grant?
i.
Should the Applicants be granted either an
interim constitutional exemption from the CDSA, or alternatively an
interlocutory exemption/injunction preserving the MMAR, together with an Order
in the nature of mandamus to compel continuation of the program, pending
trial?
ii. Ought the Applicants be exempt from the undertaking requirement in
subsection 373(2) of the Rules?
ANALYSIS
A. Have the Applicants Met the Requirements for an Interlocutory
Injunction?
[67]
The parties agree that the test for
obtaining injunctive relief is the tri-partite test established in Manitoba (Attorney General) v Metropolitan
Stores, (MTS) Ltd, [1987]
1 SCR 110 at paras 33-36 [Metropolitan Stores] and affirmed in RJR-MacDonald
Inc v Canada (Attorney General), [1994] 1 S.C.R. 311 at para 43 [RJR-MacDonald].
[68]
The Applicants argue that it is well-established
that this test may apply in the context of constitutional litigation. In
particular, the Applicants notes that there is no presumption that legislation
is constitutional, and for a court to insist that all legislation is enforced
until it is struck down might undermine the spirit of the Charter and encourage
a government to unduly prolong final resolution of the dispute at issue (RJR-MacDonald
at para 39). In addition, the Applicants specify that injunctions are
available to rectify invalid legislation, as is the case here, not just for
prohibited conduct (Khadr v Canada, 2005 FC 1076).
[69]
The Respondent argues that courts have held that
interlocutory injunctive relief against the crown should be exercised sparingly
(Snuneymuxw First Nation v British Columbia, 2004 BCSC 205 at para 69), as
it effectively usurps the legislative and executive roles of government.
I.
Is There a Serious Issue to be Tried?
[70]
Based on the evidence before me, I find that the
Applicants have established a serious issue to be tried.
[71]
The decision in RJR-MacDonald, describes
the first step of the tri-partite test at paras 49-50:
49 What
then are the indicators of "a serious question to be tried"? There
are no specific requirements which must be met in order to satisfy this test.
The threshold is a low one. The judge on the application must make a preliminary
assessment of the merits of the case (…)
50 Once
satisfied that the application is neither vexatious nor frivolous, the motions
judge should proceed to consider the second and third tests, even if of the
opinion that the plaintiff is unlikely to succeed at trial. A prolonged
examination of the merits is generally neither necessary nor desirable.
[72]
RJR-MacDonald at
para 48 points out the particular difficulty in conducting a detailed analysis
at the interlocutory stage of Charter litigation:
…Furthermore, the complex nature of
most constitutional rights means that a motions court will rarely have the time
to engage in the requisite extensive analysis of the merits of the applicant's
claim. This is true of any application for interlocutory relief whether or not
a trial has been conducted (…)
[73]
The Respondent concedes that the Applicants have
satisfied this prong of the test. However, the Respondent reserves the right to
contest the merits of the Applicants’ claims at trial – in particular, the Respondent
argues that there is no right to a particular drug of choice where reasonable
alternatives are available, nor any economic right to low cost or subsidized
medication (Gosselin v Quebec (Attorney General), [2002] 4 S.C.R. 429 at
paras 82-83).
Analysis
[74]
The Applicants’ affidavits establish that the
section 7 liberty interests of the Applicants may be infringed given the
possession offences of the CDSA, should they continue to produce marihuana as
per Parker at para 92. Their liberty interest may also be infringed by
virtue of their right to make fundamental life choices regarding their health (Parker
at para 92), as several of the affiants testified to their concern
regarding the effectiveness and safety of the marihuana offered by LPs. The
Court in Parker at para 107 also held that the state action which has
the likely effect of impairing a person’s health by forcing them to chose
between healthcare and imprisonment, engages the section 7 right to security of
the person. Here, several affiants testified to a similar effect. While these
claims may not succeed at trial, they are not frivolous or vexatious.
Similarly, the Applicants have a basis to claim that there is a serious issue in
that the risk to their security and/or liberty interest is not in accordance
with the principles of fundamental justice.
II. Are the Applicants
likely to suffer irreparable harm?
[75]
The Applicants rely on RJR-MacDonald, at
paras 58-59, to define the second stage of the tri-partite test (para 58
affirmed in Human Rights Institute of Canada v Canada (Minister of Public
Works and Government Services), [2000] 1 FC 475 at para 13):
58 At this
stage the only issue to be decided is whether a refusal to grant relief could
so adversely affect the applicants' own interests that the harm could not
be remedied if the eventual decision on the merits does not accord with the
result of the interlocutory application.
59 “Irreparable”
refers to the nature of the harm suffered rather than its magnitude. It is harm
which either cannot be quantified in monetary terms or which cannot be cured,
usually because one party cannot collect damages from the other (…)
[76]
In El-Timani v Canada Life Insurance Co,
[2001] OJ No 2648 at para 9, the court recognized that “impoverishment, social stigma and the loss of dignity associated
with severe poverty can constitute irreparable harm…the loss of enjoyment of life resulting from a subsistence level
existence pending trial is not calculable in money.” In
Elsipogtog First Nation v Canada (Attorney General), 2012 FC 387 at para
79 [Elsipogtog (FC)], (upheld on appeal in Elsipogtog v Canada
(Attorney General), 2012 FCA 312 at paras 37-38) [Elsipogtog (FCA)])
the court also held that sudden poverty could lead to emotional and
psychological stress that could amount to irreparable harm for some
individuals, and also that harm of this nature should not be taken lightly. Similarly,
in Ausman v Equitable Life Insurance Co of Canada, [2002] OJ No 3066 at
para 52 [Ausman], the court found that “The long term effect of the loss
of security and the impoverished lifestyle constitutes more than the loss of
money. It constitutes irreparable harm.”
[77]
In this case, the Applicants argues that they
will suffer irreparable harm in the form of loss of enjoyment of life and
avoidable suffering because of the failure of the MMPR to accommodate
individual patients of meagre means who:
A. Cannot afford the rate charged by licensed providers;
B. Will no longer be able to produce their own medicine at an
affordable cost;
C. Will be unable to ensure a sufficient supply of safe, high-quality
product of the most suitable type for each patient’s needs; and
D. Will no longer be able to purchase forms of marihuana other than “dried
marihuana” which have proven most effective at treating their respective
particular illnesses.
[78]
It is conceded that an increase in the cost of
marihuana alone is not a basis to find irreparable harm. Rather, the cost of
marihuana must be such that it puts the Applicants in a position where they are
either unable to reasonably access the marihuana necessary to meet their
medical needs, be otherwise severely impoverished, or endanger their liberty by
forcing them to rely on the illicit market or continue personal production.
[79]
The Applicants also argue that harm is more
“irreparable” in Charter cases because of the particular difficulty of
receiving damages in Charter cases (Mackin v New Brunswick (Minister of
Finance); Rice v New Brunswick, [2002] 1 S.C.R. 405 at paras 78-80 [Mackin];
143471 Canada Inc v Quebec (Attorney General); Tabah v Quebec (Attorney General), [1994] 2 S.C.R. 339).
[80]
The Respondent argues that the Applicants have
failed to establish that they will suffer irreparable harm because they have
only offered speculative evidence as to the impact of the MMPR (PD v British Columbia, 2010 BCSC 290 at para 130). Irreparable harm must not simply be
“likely” to occur (Canada (Attorney General) v United States Steel Corp, 2010
FCA 200 at para 7; International Longshore and Warehouse Union, Canada v
Canada (Attorney General), 2008 FCA 3 at para 25 [International
Longshore]), nor can general assertions establish irreparable harm (Gateway
City Church v Canada (Minister of National Revenue, 2013 FCA 126 at paras
15, 18). The Respondent argues that this requirement arises in the context of
constitutional litigation as well (International Longshore; Groupe
Archambault Inc v CMRRA/SODRAC Inc, 2005 FCA 330 at paras 15-16).
[81]
The Respondent states that the harm alleged by
the Applicants is speculative for three reasons:
i. Speculation about the Inability to Afford Marihuana for Medical
Purposes
[82]
The Respondent states that the Applicants’
assertions that they cannot afford marihuana are unsupported, as the Applicants
do not provide specific evidence regarding their current financial situations,
nor do they explain why they apparently can afford to produce marihuana but not
to buy it. The Respondent highlights qualifying language used in the affidavits
of the Applicants, such as “estimated” and “approximately,” to demonstrate the
speculative nature of the Applicants’ claims of irreparable harm.
[83]
The Respondent refers to the evidence of Dr.
Grootendorst, who states that the cost of purchasing marihuana from an LP will
decline over time due to the normal operation of the marketplace and a presumed
growth in the number of medical marihuana users. Furthermore, the Respondent
argues that the evidence submitted shows that black market prices are higher
than LP prices, and that Dr. Grootendorst has suggested that the federal government
will likely subsidize the cost of medical marihuana in the future.
ii. Speculation
about a Lack of Supply
[84]
The Respondent also disputes the argument by the
Applicants that they will not have access to appropriate marihuana strains or
that the strains available will be of low quality. The Respondent argues that
this is speculation, as Dr. Grootendorst’s affidavit suggests that the MMPR
will facilitate the development of a wide variety of strains.
[85]
Further, the Respondent notes that there is no
scientific basis to support the Applicants’ claims that they need a particular
strain or THC content to meet their medical needs, or that they have sampled
marihuana from an LP and deemed it unacceptable.
iii. Speculation about the Effect of Limits on Personal Production
[86]
The Respondent also argues that the Applicants’
concerns regarding the limits on personal possession under the MMPR are
unfounded. The new limit of 150 grams limit was based on an average use of 1-3
grams per day of medicinal marihuana by those being supplied by Health Canada and reflects appropriate dosage amounts identified in scientific literature.
Analysis
[87]
As stated above, the harm alleged must
not be hypothetical or speculative. It cannot be
comprised of generalized assertions, unsupported by evidence and it must be
real and substantial. However, harm that will occur in the future does not
necessarily mean the harm is speculative. Instead, it is “…the likelihood of
harm, not its futurity, which is the touchstone” (Horii v Canada, [1991]
FCJ No 984 at para 13).
[88]
Paragraph 59 in RJR-MacDonald also
alludes to a wrinkle in interlocutory injunctions in the context of this
motion. The ability to compensate in damages, a traditional measure of what
constitutes reparable harm, is complicated in constitutional cases, as damages
are presumptively unavailable against the government for enacting
unconstitutional legislation in the absence of bad faith or an abuse of power (Mackin
at paras 78-80). I consider the Applicants’ citation of RJR-Macdonald
at para 61 to be apt:
…it is appropriate
to assume that the financial damage which will be suffered by an applicant
following a refusal of relief, even though capable of quantification,
constitutes irreparable harm.
[89]
Turning to the evidence, I agree with the
Respondent that there is inadequate evidence to show that there will be an
insufficient supply of marihuana under the MMPR. Mr. Cain details in his
affidavit the steps that Health Canada has taken to forecast consumer demand
and the various contingencies put in place to deal with a shortfall, including
stockpiling marihuana and arranging for imports, if necessary. The Applicants’
argument with regard to supply amount to nothing more than speculative
assertions.
[90]
I am also not convinced that the Applicants have
met their burden with regard to whether LPs will offer the particular strains
necessary to meet their medical needs. While I am sympathetic to the trial and
error approach to growing various strains that have apparently served the
health interests of medical marihuana users, their affidavits do not provide
sufficient evidence that the strains offered by the approved LPs thus far will
be inappropriate for their medical needs. I agree with the Respondent that
their claims amount to a speculative argument, albeit perhaps a well-founded
one.
[91]
The Applicants also have failed to prove that
the 150 gram personal possession limit imposed by the MMPR would constitute
irreparable harm.
[92]
However, I find that the Applicants have
provided sufficient evidence to show that they will be unable to afford marihuana
produced by LPs as of March 31, 2014, and that this inability will likely
affect either their health, endanger their liberty, or severely impoverish
them.
[93]
All the Applicants save for Mr. Hebert gave
evidence of their monthly income and the amount necessary to produce marihuana
for their medical needs. I accept the evidence of the Applicants that they are
producing marihuana at a cost of between $0.50 and $2.00 per gram, as well as
the evidence of their monthly incomes. I find that under the MMAR, their cost
of production in conjunction with their daily rate of consumption and their
monthly income, allows them to live within their means.
[94]
The Applicants argue that they will be faced
with typical costs somewhere between $8-12 per gram under the MMPR. Mr. Davey
and Mr. Allard gave examples of how, at their daily rate of consumption, the
cost of obtaining sufficient marihuana would exceed their current incomes.
While Mr. Cain states that as of January 30, 2014, prices offered by LPs range
from $5-$12 per gram, with some discounts offered to $3 per gram, I find the
preponderance of the evidence shows that a price between $8 and $12 per gram
will more realistically be the norm. Given this evidence, and the evidence of
their monthly incomes, the cost to the Applicants of obtaining marihuana from
an LP would exceed their incomes or consume an unacceptably large portion of it.
I find that this would either leave them unable to legally access marihuana for
medical purposes in accordance with their physician’s authorization, or without
the financial means to provide for themselves otherwise.
[95]
The Respondent argues that the Applicants’
reliance on the LP prices is speculation. I do not agree. It is the only
evidence available on what the price of marihuana from an LP will be as of
March 31, 2014, and given its source I consider it to be reliable. The
Respondent also argues that the evidence of Dr. Grootendorst establishes that
the price of marihuana will decline over time as a result of increased
competition and growth in the number of registered clients. This may well be.
However, it is far from certain and it is a long-term forecast. Likewise, any
argument that the government may at some point in the future develop a subsidy
program to assist low-income users is mere conjecture. Indeed, it is telling
that the government’s own Regulatory Impact Analysis Statement for the
MMPR acknowledges a substantial price impact on consumers of medical marihuana:
The main economic cost associated with
the MMPR will arise from the loss to consumers who may have to pay a higher
price for dried marihuana. The analysis assumes a price increase from an
estimated $1.80/g to $5.00/g in the status quo to about $7.60/g in 2014, rising
to about $8.80/g, with a corresponding average annualized loss to consumers (in
consumer surplus terms) due to higher prices of approximately –$166.1M per year
for 10 years.
[96]
Given the difficulties in receiving damages in
constitutional cases as described in Mackin and RJR-MacDonald and
the findings of irreparable harm in Ausman, El-Timani and Elsipogtog (FC
and FCA), which were based on the effects of severe and immediate
financial hardship to the applicants, I find that the Applicants in the instant
motion would suffer irreparable harm that could not be remedied if this
injunction were not granted.
III.
Does the Balance of Convenience lie with the Applicants?
[97]
As a preliminary matter, the balance of
convenience test has often been cited in relation to the desirability of
maintaining the status quo with respect to the issues underlying the conflict
between the parties. However, this concept has less merit in the context of
Charter cases, given that the purpose of Charter litigation is often to disrupt
the status quo (RJR-MacDonald at para 75). Additionally, the fluidity of
the status quo in many cases leads to imprecision in defining it at any point
in time. This is evident in this case by the fact that both the Applicants and
Respondents make arguments advocating that their respective versions of what constitutes
the status quo deserve to be maintained. Accordingly, the notion of the status
quo is not determinative in assessing the balance of convenience, though it
does inform the selection of a remedy.
[98]
Rather, as per Metropolitan Stores at
para 56, the court in constitutional cases should focus its balance of
convenience analysis on what is in the public interest. RJR-MacDonald offers
guidance at paras 65-66:
65 Some general
guidelines as to the methods to be used in assessing the balance of inconvenience
were elaborated by Beetz J. in Metropolitan Stores. A few additional points may
be made. It is the "polycentric" nature of the Charter
which requires a consideration of the public interest in determining the
balance of convenience: see Jamie Cassels, "An Inconvenient Balance:
The Injunction as a Charter Remedy", in J. Berryman, ed., Remedies:
Issues and Perspectives, 1991, 271, at pp. 301-5. However, the government
does not have a monopoly on the public interest. As Cassels points out at
p. 303:
While
it is of utmost importance to consider the public interest in the balance of
convenience, the public interest in Charter litigation is not unequivocal or
asymmetrical in the way suggested in Metropolitan Stores. The Attorney General
is not the exclusive representative of a monolithic "public" in
Charter disputes, nor does the applicant always represent only an
individualized claim. Most often, the applicant can also claim to represent one
vision of the "public interest". Similarly, the public interest may not
always gravitate in favour of enforcement of existing legislation.
66 It
is, we think, appropriate that it be open to both parties in an interlocutory
Charter proceeding to rely upon considerations of the public interest. Each
party is entitled to make the court aware of the damage it might suffer prior
to a decision on the merits. In addition, either the applicant or the
respondent may tip the scales of convenience in its favour by demonstrating to
the court a compelling public interest in the granting or refusal of the relief
sought. "Public interest" includes both the concerns of society
generally and the particular interests of identifiable groups.
[99]
Canada
(Attorney General) v Harper, 2000 SCC 57 at para 9
[Harper], clarifies and expands on RJR-MacDonald:
Another principle set
out in the cases is that in considering the grant of an interlocutory
injunction suspending the operation of a validly enacted but challenged law, it
is wrong to insist on proof that the law will produce a public good. Rather, at
this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated
in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311,
at pp. 348-49:
When the nature and
declared purpose of legislation is to promote the public interest, a motions
court should not be concerned whether the legislation actually has such an
effect. It must be assumed to do so. In order to overcome the assumed benefit
to the public interest arising from the continued application of the
legislation, the applicant who relies on the public interest must demonstrate
that the suspension of the legislation would itself provide a public benefit.
The
assumption of the public interest in enforcing the law weighs heavily in the
balance. Courts will not lightly order that laws that Parliament or a
legislature has duly enacted for the public good are inoperable in advance of
complete constitutional review, which is always a complex and difficult matter.
It follows that only in clear cases will interlocutory injunctions against
the enforcement of a law on grounds of alleged unconstitutionality succeed.
[100]
It follows from the above guidance in Metropolitan
Stores, RJR-MacDonald and Harper, that there is a strong presumption
in favour of legislation enacted by Parliament being in the public interest,
but that this presumption is rebuttable if the Applicants can show their
injunctive relief would serve a public interest greater than that served by
maintaining the challenged legislation. Furthermore, in conducting this analysis,
it is not for the court on an interlocutory motion to assess the actual
benefits of specific terms of the legislation (RJR-MacDonald at para 92;
Harper at para 10).
[101]
The Applicants’ position is that the Respondent
has not offered any concrete evidence of anything more than a possible risk to
the health and safety of the public if the full coming into force of the MMPR
is delayed. In contrast, the Applicants argue that their position reflects the
regulatory status quo, and that this warrants the balance of convenience lying
with the Applicants (Elsipogtog (FC) at para 80).
[102]
Moreover, the Applicants also argue that the
distinction between “suspension” of and “exemption” from regulations is not
material. As in RJR-MacDonald at para 33, it is argued that the
distinction is irrelevant.
[103]
The Respondent replies that the public interest
in ensuring the applicability and enforceability of validly enacted federal law
weighs heavily in assessing the balance of convenience. Only in exceptional
cases will interlocutory injunctions against the enforcement of a law on
grounds of alleged unconstitutionality succeed (Harper at para 9).
Courts should not order laws passed by a democratically-elected Parliament to
be inoperable in advance of a complete constitutional review (Harper at para
9; RJR-MacDonald at para 48).
[104]
Further, the onus on the government to
demonstrate harm to the public interest is less than what is required of a
private applicant (RJR-MacDonald at paras 68, 71 and 80). When assessing
the public interest, a court need not assess the actual benefits that would
result from the specific terms of the legislation at issue at the motions
stage; rather, the party challenging the legislation must prove a more
compelling interest (RJR-MacDonald at para 92; Harper at para 9).
[105]
Moreover, the Respondent submits that the Minister
of Health is charged with promoting and protecting the public interest,
including public health and safety, and the MMPR was enacted pursuant to this
duty. According to the Respondent, the Applicants’ request for an injunction
would harm the public interest in three ways:
i. An Injunction Would Pose Serious Harms to the
Public Interest
[106]
The Respondent criticizes the evidence of Dr.
Boyd, arguing that it is selectively criticizes evidence which supports the
Respondent and does not serve to undermine the extensive consultations
conducted by Health Canada in creating this policy, which indicates that PPLs
and DPLs have had substantial impacts on the lives of Canadians, nor does it
undermine RCMP reports and Criminal Intelligence Briefs on the MMAR that are
before this Court. Moreover, Cpl. Holmquist has given evidence based on his
firsthand experience with grow operations in his role with the RCMP.
[107] The Respondent notes six negative effects of the MMAR regime:
(1) Diversion
[108] Police investigations have revealed numerous criminal abuses of the
MMAR program, including production over the legal limit, the production and
trafficking of marihuana for personal gain by those with an ATP or PPL/DPL, and
the exploitation of this scheme by organized crime. These issues have been
highlighted by several law enforcement agencies.
(2) Home Invasion and
Theft
[109] Those authorized to produce marihuana under the MMAR expose
residents and their neighbours to the risk of violent grow-rips by criminals
who become aware of the grow operations within. Grow-rips have occurred with
increasing frequency; from two in 2007 to eighteen in 2010. Correspondence from
the public speaks to the fear and stress of neighbours to individuals licensed
to produce under the MMAR. In Hitzig v Canada, [2003] OJ No 12 at para 167,
Mr. Hitzig, who was authorized to produce marihuana, feared grow-rips himself.
(3) Fires and Electrical
Hazards
[110] Evidence also demonstrates that MMAR grow operations are at a higher
risk of fire than a residence without a marihuana grow operation, given that
marihuana growing operations require high-powered lights. RCMP research from
2010 noted that the risk of fire was 24 times greater for a marihuana grow
operation than for a regular home. Further, Cpl. Holmquist gave evidence that
he has seen poor wiring and other fire hazards at MMAR grow operations in the
past.
(4) Mold and Toxic
Chemicals
[111] The presence of marihuana grow operations in residential dwellings
also increases the risk of mold due to improper ventilation and other chemical
contamination in the home and surrounding neighbourhoods. This is supported by
the RCMP reports as well as the evidence of Cpl. Holmquist’s experience with
grow operations.
(5) Noxious Odours
[112] Correspondence was received by Health Canada that criticizes the
skunk-like odour emanating from some residences with grow operations.
(6) Risks to Children
[113] The RCMP reports that children may live in residences with
grow-operations under the current MMAR scheme, and this situation increases
access to the drug, potential exposure to illegal activities and the health and
safety issues associated with that environment. This is also supported by the
affidavit of Cpl. Holmquist.
ii. An Injunction
Would Divert Scarce Resources from the MMPR and other Health Canada Programs
[114]
The Respondent states that the fluidity of what
constitutes the “status quo” suggests that it is a meaningless concept with
regard to tipping the balance of convenience (Telus Communications Co v
Rogers Communication Inc, 2009 BCCA 581 at paras 69-71). Regardless, the
Respondent argues that the relief sought by the Applicants would have the
effect of requiring Health Canada to hire new employees and otherwise expend
resources, as its MMAR-related operations have been wound down. This would
divert its resources away from other programs within the mandate of Health Canada.
iii.
An Injunction Would Negatively Impact the Newly Created Marketplace
[115]
The Respondent also notes that the preservation
of the MMAR would reduce the size of the market for LPs because the pool of
potential customers would be reduced. This could negatively affect the
commercial viability of LPs and undermine the implementation of the MMPR.
[116]
Moreover, the Respondent states that the
Applicants have not demonstrated that the public interest would be served by
their injunction (RJR-MacDonald at para 80). In particular, they have
not adduced any evidence to show how the public interest, as opposed to their
individual interest, would be served by this court granting the relief sought.
Analysis
[117]
The Applicants are representative of an
identifiable group: medically-approved patients under the MMAR regime. I accept
that this group reflects a public interest as was described in Parker at
para 97: that patients should have legal access to medication reasonably
required for the treatment of a medical condition. As discussed above, this group
will be irreparably harmed by the effects of the MMPR. For the Respondent, the
public interest is embodied by the strong presumption that the MMPR regime will
increase individual and public health, safety, and security by reducing abuses
and problems associated with the MMAR. This interest includes any negative
impact an injunction would have on LPs by reducing the size of their market,
and any expenditure necessitated by Health Canada as a result of this
injunction.
[118]
Underlying these competing public interests is a
more fundamental question, and one that is the basis for the precedent in Harper:
the appropriate role of the court in ensuring the rule of law while
respecting the role of Parliament to legislate in the public interest.
[119]
I find that the nature of the irreparable harm
that the Applicants will suffer under the MMPR constitutes a “clear case,”
which outweighs the public interest in wholly maintaining the enacted
regulations which are presumed to, among other things, increase the health,
safety and security of the public. Likewise, while LPs may be impacted by a
diminished customer base prior to a decision in this case being rendered, this
evidence is speculative and there is no certainty in terms of time or effect for
start-up businesses in a novel market.
[120]
Accordingly, I find that the balance of
convenience lies with the Applicants, in the limited sense that they should
have access to medical marihuana through the previous MMAR regime with respect
to possession and production in terms that follow.
[121]
In coming to this conclusion on the balance the
convenience, I have considered the nature of the remedy and its proportionality
to the irreparable harm suffered by the Applicants. As agreed to by the
parties, the period of time until trial is in the range of nine to twelve
months, a limited and finite time, and the parties have indicated their
amenability to scheduling a trial on the merits as early as possible. This will
ensure a speedy resolution of the issues for both parties, and not unduly
impact the viability of the MMPR scheme. Furthermore, in crafting the terms of
this Order, I have considered the least drastic means available to protect the
rights of the Applicants while preserving the will of Parliament.
B. Given the
Applicants meet the requirements for an interlocutory injunction, what is the
appropriate relief to grant?
I. Should the Applicants be granted either an interim
constitutional exemption from the CDSA, or alternatively an interlocutory
exemption/injunction preserving the MMAR, together with an Order in the nature
of Mandamus to compel continuation of the program, pending trial?
[122]
The Applicants seek either a constitutional
exemption from the provisions of section 4, 5 and 7 of the CDSA for all medically-approved
patients and their growers and or an interim injunction preserving the
provisions of the MMAR relating to personal production, possession, production
location, and storage and suspending the conflicting provisions of the MMPR. In
addition to either of these options, they seek a mandatory order in the nature
of mandamus to compel the Respondent to continue processing licence
applications under the MMAR scheme. While it is an issue for trial, the
Applicants have not sought relief through this motion with respect to the fact
that the form of marihuana in the MMPR and NCR is limited to “dried marihuana.”
[123]
The Respondent’s position is that the relief
sought by the Applicants is inappropriate, as it would disrupt a transition
process from the MMAR to the MMPR as enacted by the government, involve complex
legislative redrafting, and usurp the role of Parliament in drafting
legislation (Ontario v Criminal Lawyers’ Association of Ontario, 2013
SCC 42 at para 28).
Analysis
[124]
The first form of relief requested by the
Applicants is inappropriate. It would exempt medically-approved patients and
their designates from the possession, trafficking, and possession for the
purposes of production provisions in the CDSA without qualification. This is
not the intent of the MMAR, which defined the circumstances under which
medically-approved patients could possess and grow marihuana and in what
quantities. The relief sought would grant them exemption from the provisions of
the CDSA without limitation.
[125]
Likewise, I do not think that granting an order
in the nature of mandamus is appropriate. While a mandatory order may be
more appropriate in an interim setting than declaratory relief, a mandatory
order can be imprecise. Furthermore, it is assumed that the government will
carry out their duties in a manner consistent with the law, however the law may
be impacted by a court order.
[126]
In effect, the Applicants seek the regulatory
scheme as it was under the MMAR and do not object to the provisions of the MMPR
that relate to private growers. The way in which this can be accomplished in a
manner least intrusive to the legislative sphere is to exempt those who currently
hold a valid ATP, who held a valid DPL or PPL as of September 30, 2013, or hold
a valid amended or new DPL or PPL that was issued after September 30, 2013,
from the repeal of the MMAR and any provisions of the MMPR which are
inconsistent with the relevant provisions of the MMAR, pending an expeditious
trial and a decision of this case on its merits.
[127]
In other words, those individuals who are
authorized to possess or produce marihuana, as of the relevant dates, may
continue to do after March 31, 2014, until their constitutional rights with
respect to the MMPR are decided at trial.
[128]
The terms by which these individuals are so
authorized to produce or possess dried marihuana are the terms authorized by
their licence, notwithstanding its date of expiry, except that the 150 gram
personal possession limit as imposed by section 5(c) of the MMPR shall apply
with respect to applicable licences, as I was unconvinced that the Applicants
would suffer irreparable harm as a result of the imposition of this limit until
trial.
[129]
I am cognizant that this remedy may, for a
limited period of time, have an affect on the size of the market available for
LPs. However, this remedy is short in duration, and as such I am convinced that
it will not unduly affect the regulations passed by Parliament, while
protecting the rights of the Applicants.
II. Ought the
Applicants be exempt from the undertaking requirement in subsection 373(2) of
the Rules?
[130]
The Applicants also request an order that they
not be bound to the undertaking requirement in section 373(2) of the Rules, on
the grounds that they are of modest financial means and bring this motion on a
matter of public interest.
[131]
I think the Applicants ought not to be
forced to sign an undertaking with respect to damages in the event they succeed
on this motion yet are unsuccessful at trial. While an undertaking in Charter
cases was held to be an important consideration in the balance of convenience
test in Lac La Biche (Town) v Alberta, [1993] AJ No 263, I do not believe that it would be appropriate to
require an undertaking in this case.
ANNEX A: RELEVANT LEGISLATION
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
7. Everyone
has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental
justice.
Marihuana for Medical Access
Regulations, SOR/2001-227
11. (1) Subject to section 12, if the
requirements of sections 4 to 10 are met, the Minister shall issue to the
applicant an authorization to possess for the medical purpose mentioned in the
application, and shall provide notice of the authorization to the medical
practitioner who made the medical declaration under paragraph 4(2)(b).
(2) The authorization
shall indicate
(a) the name,
date of birth and gender of the holder of the authorization;
(b) the full
address of the place where the holder ordinarily resides;
(c) the
authorization number;
(d) the name of
the medical practitioner who made the medical declaration under paragraph 4(2)(b);
(e) the maximum
quantity of dried marihuana, in grams, that the holder may possess at any time;
(f) the date of
issue;
(g) the date of
expiry; and
(h) the
reference date referred to in section 13.1.
(3) The maximum quantity
of dried marihuana referred to in paragraph (2)(e) or resulting from
an amendment under subsection 20(1) is the amount determined according to the
following formula:
A × 30
where A
is the daily amount of dried marihuana, in grams, stated under
paragraph 6(1)(c) or subparagraph 19(2)(d)(i), whichever
applies.
24. The holder of a personal-use
production licence is authorized to produce and keep marihuana, in accordance
with the licence, for the medical purpose of the holder.
25. (1) Subject
to subsection (2), a person is eligible to be issued a personal-use production
licence only if the person is an individual who ordinarily resides in Canada
and who has reached 18 years of age.
(2) If a
personal-use production licence is revoked under paragraph 63(2)(b), the
person who was the holder of the licence is ineligible to be issued another personal-use
production licence during the period of 10 years after the revocation,
SOR/2007-207, s. 4(E).
40. (1) Subject to section 41, if the
requirements of sections 37 to 39 are met, the Minister shall issue a
designated-person production licence to the designated person.
(2) The licence shall
indicate
(a) the name,
date of birth and gender of the holder of the licence;
(b) the name,
date of birth and gender of the person for whom the holder of the licence is
authorized to produce marihuana and the full address of that person’s place of
ordinary residence;
(c) the full
address of the place where the holder of the licence ordinarily resides;
(d) the licence
number;
(e) the full
address of the site where the production of marihuana is authorized;
(f) the
authorized production area;
(g) the maximum
number of marihuana plants that may be under production at the production site
at any time;
(h) the full
address of the site where the dried marihuana may be kept;
(i) the maximum
quantity of dried marihuana, in grams, that may be kept at the site authorized
under paragraph (h) at any time;
(j) the date of
issue; and
(k) the
date of expiry.
34. (1) The holder of a designated-person
production licence is authorized, in accordance with the licence,
(a) to
produce marihuana for the medical purpose of the person who applied for the
licence;
(b) to possess
and keep, for the purpose mentioned in paragraph (a), a quantity of
dried marihuana not exceeding the maximum quantity specified in the licence;
(c) if the
production site specified in the licence is different from the site where dried
marihuana may be kept, to transport directly from the first to the second site
a quantity of dried marihuana not exceeding the maximum quantity that may be
kept under the licence;
(d) subject to
subsection (1.1), if the site specified in the licence where dried marihuana
may be kept is different from the place where the person who applied for the
licence ordinarily resides, to send or transport directly from that site to the
place of residence a quantity of dried marihuana not exceeding the maximum
quantity specified in the authorization to possess on the basis of which the
licence was issued; and
(e) to provide
or deliver to the person who applied for the licence a quantity of dried marihuana
not exceeding the maximum quantity specified in the authorization to possess on
the basis of which the licence was issued.
(1.1) A holder of a
designated-person production licence sending dried marihuana under paragraph
(1)(d) shall
(a) securely pack
the marihuana in a package that
(i) will
not open or permit the escape of its contents during handling and
transportation,
(ii) is
sealed so that the package cannot be opened without the seal being broken,
(iii) prevents
the escape of odour associated with the marihuana, and
(iv) prevents
the contents from being identified without the package being opened; and
(b) use a method
of sending that involves
(i) a means of
tracking the package during transit,
(ii) obtaining a
signed acknowledgment of receipt, and
(iii) safekeeping
of the package during transit.
53. If the production area for a licence to produce
permits the production of marihuana entirely outdoors or partly indoors and
partly outdoors, the holder shall not produce marihuana outdoors if the production
site is adjacent to a school, public playground, day care facility or other
public place frequented mainly by persons under 18 years of age.
Narcotic Control Regulations, CRC, c 1041
53. (1) No practitioner shall administer a
narcotic to a person or animal, or prescribe, sell or provide a narcotic for a
person or animal, except as authorized under this section, the Marihuana Medical Access Regulations
or the Marihuana for Medical Purposes Regulations.
(2) Subject to
subsections (3) and (4), a practitioner may administer a narcotic other
than dried marihuana to a person or animal, or prescribe, sell or provide it
for a person or animal, if
(a) the person
or animal is a patient under their professional treatment; and
(b) the narcotic
is required for the condition for which the person or animal is receiving
treatment.
(3) No practitioner shall
administer methadone to a person or animal, or prescribe, sell or provide
methadone for a person or animal, unless the practitioner is exempted under
section 56 of the Act with respect to methadone.
(4) A practitioner of
medicine, dentistry or veterinary medicine shall not administer
diacetylmorphine (heroin) to an animal or to a person who is not an in-patient
or out-patient of a hospital providing care or treatment to persons, and shall
not prescribe, sell or provide diacetylmorphine (heroin) for an animal or such
a person.
(5) A health care
practitioner may administer dried marihuana to a person or prescribe or
transfer it for a person if
(a) the person
is a patient under their professional treatment; and
(b) the
dried marihuana is required for the condition for which the person is receiving
treatment
Marihuana for Medical Purposes
Regulations, SOR/2013-119
3(2) The following persons may possess dried
marihuana:
(a) a person who
has obtained the dried marihuana for their own medical purposes or for those of
another person for whom they are responsible
(i) from a licensed
producer, in accordance with a medical document,
(ii) from a health
care practitioner in the course of treatment for a medical condition, or
(iii) from a
hospital, under subsection 65(2.1) of the Narcotic Control Regulations;
(b) a person who
requires dried marihuana for the practice of their profession as a health care
practitioner in the province in which they have that possession; or
(c) a
hospital employee, if they possess the dried marihuana for the purposes of and
in connection with their employment.
5. An individual who obtains dried marihuana for
their own medical purposes or for those of another individual for whom they are
responsible must not possess a quantity of dried marihuana that exceeds the
least of the following amounts:
(a) in the case
of dried marihuana obtained from a licensed producer, 30 times the daily
quantity referred to in paragraph 129(1)(d);
(b) in the case
of dried marihuana obtained from a hospital by or for an out-patient,
30 times the daily quantity referred to in subparagraph 65.2(c)(iii)
of the Narcotic Control Regulations; and
(c) 150 g.
12. (1) Subject to subsections (2) to (7)
and to the other provisions of these Regulations, a licensed producer may
(a) possess,
produce, sell, provide, ship, deliver, transport and destroy marihuana;
(b) possess and
produce cannabis, other than marihuana, solely for the purpose of conducting in
vitro testing that is necessary to determine the percentages of cannabinoids in
dried marihuana; and
(c) sell,
provide, ship, deliver, transport and destroy cannabis, other than marihuana,
that was obtained or produced solely for the purpose of conducting the in vitro
testing referred to in paragraph (b).
13. A licensed
producer must not conduct any activity referred to in section 12 at a
dwelling place.
14. A licensed
producer must produce, package or label marihuana only indoors and at the
producer’s site.
Email this Content