Docket: A-342-14
Citation:
2016 FCA 9
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CORAM:
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PELLETIER J.A.
STRATAS J.A.
GLEASON J.A.
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BETWEEN:
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JOHN C. TURMEL
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Appellant
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and
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HER MAJESTY THE
QUEEN
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Respondent
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REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
Before the Court are 26 appeals. Four appellants
appeal an order dated June 4, 2014 and another 22 appellants appeal an amended
order dated July 9, 2014. All orders were made by the Federal Court (per Phelan
J.): 2014 FC 537.
[2]
This Court has ordered that the appeals be
consolidated. These are the reasons in the consolidated appeals. A copy of
these reasons shall be placed in each appeal file.
A.
The pending challenges against marihuana
regulations
[3]
The appellants in this Court, self-represented
litigants, acting along with other self-represented litigants, have challenged
the constitutionality of the Marihuana Medical Access Regulations,
SOR/2001-227 (MMAR) and the Marihuana for Medical Purposes Regulations,
SOR/2013-119 (MMPR) in the Federal Court. In all, there are roughly 300
virtually identical challenges.
[4]
The constitutionality of the MMPR is also in
issue before the Federal Court in Allard et al. v. Her Majesty the Queen,
file no. T-2013-13.
B.
Interlocutory proceedings
[5]
On May 7, 2014, in response to a motion brought
by the respondent, the Federal Court exercised its discretion in favour of
staying the challenges brought by all of the self-represented litigants on the
ground that the Allard challenge was “much
further advanced” and had significant potential to “reduce the issues in play, clarify those remaining [,] potentially
simplify the litigation for the lay litigants” and “save judicial resources”: 2014 FC 435 at paragraphs
12, 22 and 24. In granting the stay, the Federal Court noted the “unprecedented situation of hundreds of lay litigants”
whose claims were difficult to “realistically
coordinate” (at paragraphs 12 and 22). The May 7, 2014 order was not appealed.
[6]
The large number of matters brought by the
self-represented litigants in the Federal Court arises because the lead
litigant, Mr. Turmel, created templates for litigation documents and made them
available on the internet. In the case of the motions that led to the June 4,
2014 order now under appeal, the appellants made use of one of these templates
to prepare their affidavits in support of their motions. The template was
limited. It allowed them to state their medical condition without any other
supporting detail or evidence. It also allowed them to insert the number of
their Authorization to Possess certificate, a certificate granted on the basis
of a medical condition sometime in the past.
[7]
In the June 4, 2014 order under appeal, the
Federal Court exercised its discretion to dismiss motions by the appellants for
interim constitutional exemptions from the Controlled Drugs and Substances
Act pending trial of the challenges. In the July 9, 2014 amended order, the
Federal Court clarified that the May 7, 2014 stay would remain in place until
all appeals in the Allard challenge had been exhausted.
C.
The specific issues in these appeals
[8]
Despite this procedural complexity, there are
only two issues raised by these appeals. We must decide whether the Federal
Court committed reviewable error in:
•
staying the challenges until the final
disposition of the Allard challenge; and
•
dismissing the motions for an interim
constitutional exemption from the Controlled Drugs and Substances Act,
S.C. 1996, c. 19.
D.
The standard of review
[9]
The Federal Court judge who determined these
matters did so as a case management judge. The order made is an interlocutory, discretionary
one, based on applying legal standards to factual findings based on the
evidence before him.
[10]
If such an order is prompted by an error of law
or legal principle, an appellate court must intervene: see, e.g., Soulos
v. Korkontzilas, [1997] 2 S.C.R. 217, at paragraph 54. Short of that sort of error, an
appellate court must defer to a motions judge’s assessment. This is especially
so when the order is a case management order: see, e.g., Sawridge
Band v. Canada, 2001 FCA 338, [2002] 2 F.C. 346 at paragraph 11.
[11]
Over the years, this Court and the Supreme Court
have used different words to describe the level of deference that must be
shown—or, put another way, the point at which a court can intervene in the
absence of an error of law or legal principle. The cases speak of “clear error,” “misapprehension
of facts where an injustice would result,” “sufficient
weight to all relevant considerations,” “so
clearly wrong that it resulted in an injustice,” “palpable and overriding error,” and so on. The cases
are unanimous that appellate courts cannot reweigh the evidence, come up with
their own conclusions, and then replace those of the first instance court. See,
e.g., Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paragraph 83,
Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at paragraph 27; Canadian
Imperial Bank of Commerce v. Green, 2015 SCC 60; David Bull Laboratories
(Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C.
588 at page 594, 58 C.P.R. (3d) 209 at page 213 (C.A.); Imperial
Manufacturing Group Inc. v. Decor Grates Incorporated, 2015 FCA 100, 472
N.R. 109 citing v. Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.
235. In Imperial Manufacturing, in the interests of unity and
simplicity, I sought to equate interlocutory discretionary orders with those
described in Housen that fall in the category of questions of mixed fact
and law, though I acknowledge that some take the view that such orders have
some features different from those said to be based on questions of mixed fact
and law.
[12]
Putting aside these subtleties, what is common
to all of these verbal formulations is that in the absence of an error of law
or legal principle an appellate court cannot interfere with a discretionary
order unless there is an obvious, serious error that undercuts its integrity
and viability. This is a high test, one that the case law shows is rarely met. This deferential standard of review has applied in the past
to discretionary orders appealed to this Court and it is the test we shall
apply to the interlocutory discretionary order made by the Federal Court that
is before us in these appeals.
E.
Analysis
[13]
Bearing in mind this standard of review, in my
view the Federal Court did not commit reviewable error when it made its June 4,
2014 and July 9, 2014 orders.
(1)
The stay decision
[14]
On this issue, the Federal Court applied settled
legal principles; the appellants have not demonstrated any error of law on the
part of the Federal Court.
[15]
Further, the decision to stay the
self-represented litigants’ challenges until the final disposition of the Allard
challenge is supportable on the evidentiary record before the judge. It is also
supported by the Federal Court’s earlier findings that gave rise to its May 7,
2014 order, an order that has not been appealed.
[16]
Before the Federal Court was evidence suggesting
that there was significant overlap between the challenges brought by the
self-represented litigants and the Allard challenge and the Federal
Court so found (at paragraph 5). The appellants urge us to reweigh the evidence
and find that there is not significant overlap. Given the standard of review,
we cannot engage in that reweighing. There was evidence before the Federal
Court supporting its finding that there was significant overlap.
[17]
The Federal Court also took into account issues
of judicial resources, efficiency and the orderly conduct of multiple
proceedings before the Court (at paragraph 24). The Court found the Allard
challenge, one conducted by “experienced counsel,”
was significantly advanced and would assist the disposition of the
self-represented litigants’ challenges (at paragraphs 5, 22 and 24). In
addition, the judge noted that other superior courts had temporarily stayed
similar claims pending the determination of the Allard challenge (at
paragraph 10). Here again, on all these points, the evidence before the Federal
Court was capable of supporting its reasons and findings.
(2)
The decision on interim relief
[18]
On this issue, again the appellants have not
demonstrated any error in legal principle on the part of the Federal Court.
[19]
The decision to dismiss the motions for an
interim constitutional exemption from the Controlled Drugs and Substances
Act until final determination of the Allard challenge is similarly
supportable on the evidentiary record before the judge.
[20]
In argument before us, the appellants encouraged
this Court to reweigh the evidence and find differently. As I have explained,
as an appellate court that must apply the appellate standard of review, this we
cannot do.
[21]
In dismissing the appellants’ motions for an
interim constitutional exemption, the Federal Court relied on the following
matters:
•
Similar relief had been requested in the Allard
challenge but had been refused as overly broad and “inappropriate.”
In this case, the Federal Court found that the requested relief was “essentially unlimited” and “not
tailored to remedying an alleged Charter violation” (at paragraphs
21-22).
•
While the appellants’ challenges were stayed,
many would benefit from an earlier injunction the Federal Court granted in Allard
(2014 FC 280, substantially upheld on appeal, 2014 FCA 298) (at paragraphs 15
and 20).
•
In its reasons in support of the May 7, 2014
order (at paragraph 26), the Federal Court stated that it would remain prepared
to consider motions for interim relief supported by adequate evidence brought
by those who did not have the benefit of the earlier injunction and said that
this “reduces, if not eliminates” the potential
for prejudice to them.
•
Mr. Turmel, the appellant in the lead file in
these consolidated appeals, sought access to marihuana not to treat a
recognized medical condition but to prevent illness. The Federal Court held
that on the evidence it was not satisfied that marihuana’s utility in
preventing illness had been demonstrated (at paragraph 23).
•
The appellants failed to establish that the
medical exemption provided by the MMAR or MMPR violates their Charter rights in
a way that would be remedied by the constitutional exemption they seek (at
paragraph 23).
•
A constitutional exemption was granted in R.
v. Parker (2000), 49 O.R. (3d) 481, 188 D.L.R. (4th) 385 (C.A.). However, the Federal Court considered that Parker was distinguishable on the
facts (at paragraphs 24-26). In Parker, the relief arose from a finding
of unconstitutionality and the granting of a temporary suspension of certain
provisions of the Controlled Drugs and Substances Act—something that is
not present in these cases. Further, the Federal Court observed that after Parker
the Supreme Court has significantly limited the availability of constitutional
exemptions (at paragraphs 27-28, citing R. v.
Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96).
•
The appellants had failed to supply sufficient
evidence concerning their personal medical circumstances to warrant any interim
relief (paragraph 28). The only evidence before the Federal Court was the
limited information supplied by way of the online template, but no supporting
documentary evidence of their current medical condition.
[22]
Together, these matters, all supported by the
evidence in the record, supplied the Federal Court with a basis to decide as it
did and we cannot interfere.
[23]
Before us, Mr. Turmel on behalf of the
appellants stressed that the selection of a material date for granting relief
to some but not others in the injunction granted in Allard is
irrational. The distinction was based not on medical need but rather on a
non-medical criterion, namely the viability of the MMPR scheme. Mr. Turmel
submitted that the Federal Court erred in its June 4, 2014 order by continuing
this same erroneous approach. He asked this Court to remedy this by granting an
exemption to all who satisfy the criterion of medical need.
[24]
The difficulty with this is the same discussed
above: the Federal Court found that the appellants offered insufficient
evidence of medical need. In its view, the assertions in the template
affidavits were not enough. Again, this is an assessment of the sufficiency or
weight of evidence, a matter on which we must defer.
[25]
I add that in its May 7, 2014 order, the Federal
Court left the door open for those who could establish, by further and better
proof than that found in the template affidavits, that they had a medically verifiable
need for medical marihuana. In their filings that led to the June 4, 2014
order, none of the appellants took the Federal Court up on its offer.
F.
Costs
[26]
The parties agree that costs in the amount of
$3,350, all inclusive, collectively for all of the appeals are appropriate, and
Mr. Turmel has undertaken on behalf of the appellants to pay them.
G.
Proposed disposition
[27]
Therefore, I would dismiss Mr. Turmel’s appeal
with costs in the amount of $3,350, all inclusive. I would dismiss all of the
other appeals without costs.
"David Stratas"
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Mary J.L.
Gleason J.A.”
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