Date: 20080319
Docket: A-55-08
Citation: 2008 FCA 106
Present: RICHARD C.J.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
DORA SFETKOPOULOS, DAVID MCGREGOR,
PRISCILLA LAVELL, EUGENE HARACK, ROBIN
TURNEY,
RONALD FOLZ, MICHAEL GIBBISON, TIMOTHY DEGANS,
MARK HUKULAK, LEONARD SISSON, PAUL
MANNING,
RON REID, RON SPECK, JOHN LOBRAICO, EDDIE
WALLACE,
MICHAEL DELARMEE, RONALD GEORGE WILSON,
and
JEFFREY LONG
Respondents
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on March 19, 2008.
REASONS FOR ORDER BY:
RICHARD C.J.
Date: 20080319
Docket: A-55-08
Citation: 2008 FCA 106
Present: RICHARD
C.J.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
DORA SFETKOPOULOS, DAVID
MCGREGOR,
PRISCILLA LAVELL, EUGENE HARACK, ROBIN
TURNEY,
RONALD FOLZ, MICHAEL GIBBISON, TIMOTHY
DEGANS,
MARK HUKULAK, LEONARD SISSON, PAUL
MANNING,
RON REID, RON SPECK, JOHN LOBRAICO, EDDIE
WALLACE,
MICHAEL DELARMEE, RONALD GEORGE WILSON,
and
JEFFREY LONG
Respondents
REASONS FOR ORDER
RICHARD C.J.
[1]
The
Attorney General of Canada (Canada) seeks a stay of the judgment of the
Honourable Barry Strayer, Deputy Judge of the Federal Court, dated January 10,
2008, in which he declared invalid subsection 41(b.1) of the Marihuana
Medical Access Regulations (MMAR). Canada seeks a stay of the entire judgment
until the appeal and cross-appeal are heard, and judgment is rendered by this
Court.
[2]
The
proceeding underlining the judgment of Strayer D.J. was an application for
judicial review brought by several individuals challenging the Minister of
Health’s refusal to issue a designated-person production licence (DPPL) to
Carasel Harvest Supply Corporation (Carasel) to cultivate marihuana on their
behalf. As the basis for the Minister’s refusal was the predecessor to
subsection 41(b.1) of the MMAR, the applicants also sought an order declaring
this provision to be in violation of section 7 of the Charter.
[3]
Subsection
41(b.1) of the MMAR provides as follows:
41. The Minister
shall refuse to issue a designated-person production licence
…
(b.1) if the
designated person would be the holder of more than one licence to produce;
[4]
This
provision limits the number of persons for whom a designated person can grow
marihuana for medical use, i.e. a designated person may cultivate marihuana for
only one individual.
[5]
Strayer
D.J. granted the application and in doing so declared subsection 41(b.1) to be
invalid as contrary to section 7 of the Charter and set aside the
Minister’s refusal to issue DPPLs designating Carasel as the applicants’
designated producer.
[6]
He held
that the liberty and security of the person interests in section 7 of the Charter
conferred on the applicants a right to choose, on medical advice, to use
marihuana for treatment of serious conditions, that right implying a right of
access to such marihuana and a right not to have one’s physical liberty
endangered by the risk of imprisonment from having to access marihuana
illicitly.
[7]
In
declaring subsection 41(b.1) unconstitutional, Strayer D.J. did not suspend the
declaration of invalidity. Nevertheless, he made the following observation:
[16] At this
point it may be observed, in respect of both the first and second rationales
that it may well be that there could be justification for limiting the size of
operations of designated producers, to facilitate supervision and inspection
for quality and security. But any new regulations to this end will have to be
justified as having a demonstrable purpose rationally related to legitimate
state interests. No such justification has been offered to me for subsection
41(b.1).
[8]
The issue
on this motion is whether Canada can satisfy the
well-established test for granting a stay, i.e. whether:
(a)
there is a
serious question to be determined in the appeal;
(b)
irreparable
harm will be suffered should this Court not grant the stay; and
(c)
the
balance of convenience favours granting a stay.
[RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311]
[9]
The
respondents concede that Canada has satisfied the first
branch of the test for a stay.
[10]
The issue
of public interest, as an aspect of irreparable harm to the interest of the
government, will be considered at the second stage as well as the third stage (RJR-MacDonald,
above, at para. 81)
[11]
In
constitutional cases such as this, the Supreme Court of Canada has recognized
that the onus on the Government of demonstrating irreparable harm to the public
interest is less than is required of a private applicant:
The test will
nearly always be satisfied simply upon proof that the authority is charged with
the duty of promoting or protecting the public interest and upon some
indication that the impugned legislation, regulation, or activity was
undertaken pursuant to that responsibility. Once these minimal requirements have
been met, the court should in most cases assume that irreparable harm to the
public interest would result from the restraint of that action. [RJR-MacDonald,
supra, at 346].
[12]
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.
[13]
In my view,
this assumption applies not only in the case of an application for an interlocutory
injunction prior to trial but also applies where the Government is seeking to
stay a judgment declaring a law to be unconstitutional (Her Majesty the
Queen v. Canadian Council for Refugees et al., 2008 FCA 40).
[14]
The
respondents have filed no evidence on this motion to show that they would
suffer any harm if a stay would be granted. Each respondent is entitled under
Health Canada’s regulatory scheme to
receive marihuana from a licit source of supply. There is no evidence on this
motion that any of the respondents are being denied access to a licit supply of
marihuana as a result of the operation of subsection 41(b.1) of the MMAR. Further,
there is no evidence from the respondents that the marihuana provided to Health
Canada by Prairie Plant Systems Inc.
(PPS) is wanting in any material way.
[15]
On the
other hand, Canada alleges that the effect of the judgment is to jeopardize the
public interest by requiring Health Canada to issue DPPLs to producers
operating large scale marihuana “grow ops” that are not subject to the
prescriptive security and quality control requirements that are imposed on PPS.
[16]
This is
because the MMAR do not currently require DPPL holders to implement measures
designed to ensure the security of their grow operations. Nor are DPPL holders
required to comply with the quality and product safety requirements imposed on
PPS.
[17]
Canada alleges that a stay pending
the appeal and cross-appeal is required to avoid these risks materializing
before this Court has had the opportunity to rule on the constitutional issues.
[18]
The
respondents presently have access to a licit supply of marihuana. In my
opinion, the public interest favours the granting of a stay pending the outcome
of the appeal and cross-appeal.
[19]
Accordingly,
an order will be made granting Canada’s request for a stay of
Strayer D.J.’s judgment until disposition of the appeal and cross-appeal.
[20]
The Court is
prepared to assist the parties in expediting the hearing of the appeal and
cross-appeal.
"J. Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-55-08
STYLE OF CAUSE: The
Attorney General of Canada v. Dora Sfetkopoulos,
David McGregor, Priscilla Lavell, Eugene Harack, Robin Turney, Ronald Folz,
Michael Gibbison, Timothy Degans, Mark Hukulak, Leonard Sisson, Paul Manning,
Ron Reid, Ron Speck, John Lobraico, Eddie Wallace, Michael Delarmee, Ronald
George Wilson, and Jeffrey Long
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF PARTIES
REASONS FOR ORDER BY: RICHARD C.J.
DATED: March 19, 2008
WRITTEN REPRESENTATIONS BY:
|
Mr. Sean Gaudet and
Mr. James Gorham
|
FOR THE APPELLANT
|
|
Mr. Ron
Marzel
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
Mr. John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE APPELLANT
|
|
Marzel Law
Toronto, Ontario
|
FOR THE RESPONDENTS
|
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