Docket: T-2030-13
Citation:
2016 FC 492
Ottawa, Ontario, May 3, 2016
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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NEIL ALLARD,
TANYA BEEMISH, DAVID HEBERT AND SHAWN DAVEY
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Defendant
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ORDER AND REASONS
I.
Introduction
[1]
This is a motion to have this Court reconsider a
part of its Order of February 24, 2016 [Allard Order], finding the Marihuana
for Medical Purposes Regulations, SOR/2013-119 [MMPR] unconstitutional,
permitting the Government of Canada six months to enact Charter
compliant new medical marihuana regulations and in that interim period continue
the Injunction Order of Justice Manson [the Manson Order].
II.
Background
[2]
The motion is brought pursuant to Rule 397(1) of
the Federal Courts Rules, SOR/98-106, which reads:
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397 (1) Within 10 days after the
making of an order, or within such other time as the Court may allow, a party
may serve and file a notice of motion to request that the Court, as
constituted at the time the order was made, reconsider its terms on the
ground that
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397 (1)
Dans les 10 jours après qu’une ordonnance a été rendue ou dans tout autre
délai accordé par la Cour, une partie peut signifier et déposer un avis de
requête demandant à la Cour qui a rendu l’ordonnance, telle qu’elle était
constituée à ce moment, d’en examiner de nouveau les termes, mais seulement
pour l’une ou l’autre des raisons suivantes :
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(a) the order does not accord with any reasons given for it; or
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a) l’ordonnance ne concorde pas avec les
motifs qui, le cas échéant, ont été donnés pour la justifier;
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(b) a matter that should have been dealt with has been overlooked or
accidentally omitted.
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b) une question qui aurait dû être traitée a
été oubliée ou omise involontairement.
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(2) [deals with clerical errors – not
relevant here]
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(2) [concerne
les erreurs administratives – non pertinent en l’occurrence]
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[3]
The Plaintiffs assert both paragraphs (a) and
(b): that the Allard Order in continuing the Manson Order does not accord with
any reasons given or that by continuing the Manson Order this Court overlooked
or accidentally omitted various alleged deficiencies in the Manson Order.
[4]
The alleged deficiencies in the Allard Order
which the Plaintiffs allege this Court should have remedied, some of which flow
from continuing the Manson Order, are:
a)
the size or breadth of the class of persons who
should be covered during the six month period Canada has to implement a new
medical marihuana regime;
b)
the inability of the Manson Order to accommodate
address changes;
c)
the failure to issue a declaration that the
limit on consumption to dried marihuana is contrary to the Charter;
d)
the failure to quash the limit to possession to
a maximum of 150 grams; and
e)
the failure to immediately declare sections 4, 5
and 7 of the Controlled Drugs and Substances Act, SC 1996 c 19, of no
force and effect.
III.
Analysis
A.
Preliminary
[5]
It is noteworthy that neither the Defendant nor
the Plaintiffs appealed the Allard Order. The Plaintiffs waited until after the
expiry of the appeal period (and after Canada had announced that it would not appeal
the Allard Order) to bring this motion for reconsideration.
[6]
Rule 397 is largely a technical rule to address
inadvertent errors, slips and obvious mistakes. It imposes a 10-day period in
which to seek redress.
[7]
The Plaintiffs’ motion is out of time.
The
Plaintiffs ran afoul of this technical limitation when they invoked this
technical provision.
[8]
The Plaintiffs do not address in any substantive
manner the failure to make a timely filing. There is no explanation for the
delay nor of evidence of a continuing intention to bring this motion.
[9]
On this grounds alone, the motion should be
struck.
[10]
However, the Court is aware of some of the public’s
interest and the “public interest” in the whole matter of medical marihuana. For
this reason, the Court will address the substance of the motion.
B.
Reconsideration
[11]
Rule 397 is an exception to the general rule and
is designed to address some of the technical limitations on a judge dealing
with a judgment after it has been pronounced. As a general rule a judge is “functus officio” (completed the official
function) and has no jurisdiction to alter the terms of the order – the
recourse is usually through an appeal.
[12]
Justice Barnes in Samaroo v Canada
(Citizenship and Immigration), 2007 FC 431 at para 3, 157 ACWS (3d)
413, summarizes s 397(1)(b)’s limitations as follows:
[3] … What is required for such
relief is evidence that the Court overlooked a matter or accidentally omitted
something material from the decision. The Rule does not provide a basis for
the Court to reconsider its decision on the merits or to provide an opportunity
for an applicant to correct deficiencies in the evidence tendered in the
earlier proceeding.
[13]
I might add that it is also not a forum for the
Court to provide further reasons for its decision and order and therefore a
court’s response to the motion is limited. The reasons and order of the judge must
speak for themselves.
[14]
Justice Barnes adopted the often quoted words in
Lee v Canada (Minister of Citizenship and Immigration), 2003 FC 867 at
paras 3-4 and 7, 124 ACWS (3d) 758:
[3] Rule 397(1)(b) is a technical
rule, designed to address situations where a matter that should have been
addressed was overlooked or accidentally omitted. In my opinion, that is not
the situation here.
[4] The Applicant is now arguing that
a point raised in argument during the hearing of his application for judicial
review was not addressed in the Reasons for Order filed on June 19, 2003. In Haque
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1141
(T.D.), Justice Pelletier (as he then was) said as follows at paragraph 5 and
6:
...However, I disagree that Rule 397
applies to this situation. My view is that "matter", as used in Rule
397, means an element of the relief sought as opposed to an argument raised
before the court. In other words, the Court has failed to deal with some part
of the relief sought and an application to reconsider seeks to have the Court
address the issue of the relief sought. To permit what are intended to be final
orders, from which there is no appeal without the certification of a serious
question of general importance, to be opened up because an argument has not
been dealt with undermines the finality of the decision. Furthermore, I would
not wish to impose on the Court the obligation of dealing with every argument
made without regard for its significance or its merit.
In saying this, I am referring to the legal
obligation upon a judge preparing reasons. I am not speaking of good practice.
Good practice generally includes acknowledging the arguments made by the
parties so that they know they have been heard. The wisdom of such a course of
action is proved by this application. But there are many reasons why a judge
might not deal with all arguments made to the Court. Relevance, significance,
lack of merit are among them. Oversight is another. To hold that some of those
reasons are sufficient to justify reconsideration while others are not is to
invite inquiries into all instances of failure to refer to arguments made. This
undermines the finality of decisions made. For that reason, the application for
reconsideration is dismissed.
…
[7] In my opinion, he is now trying
to re-argue an issue that was clearly dealt with in the Reasons for Order filed
in this matter. He is improperly using Rule 397 as a disguised method of appeal
and the jurisprudence is clear that the reconsideration rule cannot be used in
that way: see Kibale v. Canada (Transport Canada) (1989), 103 N.R. 387
(F.C.A.).
[15]
The Federal Court of Appeal in Bell
Helicopters Textron Canada Limitée v Eurocopter, 2013 FCA 261 at para 15, 235
ACWS (3d) 214, summarized the situation in many ways analogous to the present
circumstances:
[15] First, Eurocopter’s motion
is a rather crude attempt to argue anew a ground of appeal which it had been
originally raised in its Memorandum of fact and law with respect to its
cross-appeal. As aptly noted by Hugessen J.A. in Kibale v. Canada (Transport
Canada) (F.C.A.) (1988), 103 N.R. 387, the rule allowing for
reconsideration “is not a means whereby the losing party may validate or
complete his plea.” Likewise, that rule is not a means by which a litigant may
argue an issue a second time in the hope that the Court will change its mind.
C.
Rule 397(1)(a)
[16]
These cases cited above and those referred to by
the parties dealt with Rule 397(1)(b). No cases related to Rule 397(1)(a) were
cited to the Court. However, the essence of the Plaintiffs’ complaint is that
there is a discordance between the Allard Order and the Reasons because the Court
found a Charter violation and yet continued the Manson Order. The case
law is rather limited and not very illuminating with respect to the subsection.
[17]
The discordance usually addressed in Rule
397(1)(a) is of the type where the reasons favour one party and yet through a
clear error the order does not. The error is plain and obvious.
[18]
As a general comment, with respect, I do not see
a discordance between the Reasons which hold that there is a Charter
violation, that the declaration of such invalidity should be suspended to
permit remediation in a short period of time and the Order which does that and
maintains the status quo (the Manson Order) until that period expires.
[19]
The remedy was a judicial choice with which the
Plaintiffs disagree in part. However, it was not an unintended result.
D.
Rule 397(1)(b)
[20]
Most of the Plaintiffs’ specific complaints fall
under this provision alone or in conjunction with Rule 397(1)(a) but I will
address them all here.
[21]
The Plaintiffs have the difficult burden of
convincing me that I overlooked or accidentally omitted something. It no doubt
is of cold comfort to hear the judge say that the matters were not missed, that
the matters were thought about, but the Court was not convinced that they
needed to be addressed as the Plaintiffs propose.
[22]
With respect to “class
size” issue, that had been a live issue throughout the litigation. It
had been raised with the Court of Appeal (and not altered), it was contained in
final submissions at trial, it was raised in the R 399 motion to vary and
dismissed. The Court was well aware of the alleged deficiencies of the Manson
Order.
[23]
It is evident that this Court made a choice not
to alter the Manson Order and that should end the matter. It was obvious, even
on this motion, that tampering with the Manson Order raises a number of related
issues including who is in, who is out, why, and what are the impacts of such
amendment on all parties and affected persons.
[24]
Regarding the “change of
address” issue, the problem was specifically recognized at paragraph 142
of the Reasons. It was an issue that had been consistently addressed. Canada
had specific problems with the issue.
In
issuing its Allard Order, the Court chose a different method to address the
various issues. There was no oversight or accidental omission in its Order.
[25]
With respect to the failure to make a
declaration that the limitation on consumption to dried marihuana was an
omission or oversight, the Court specifically referred to the issue and the
Supreme Court’s decision in R v Smith, 2015 SCC 34, [2015] 2 S.C.R. 602 [Smith],
at paragraph 59 et seq and at paragraph 196 of the Reasons.
[26]
That limitation has been struck as a result of Smith.
As confirmed in Daniels v Canada (Indian Affairs and Northern Development),
2016 SCC 12, the Court is not to issue declaration of rights where those rights
have already been established.
[27]
The Plaintiffs alleged in argument, but without
proof, that some police officers are ignoring the Supreme Court’s ruling. This
would be a matter of grave concern, if true, but it must be established in the
proper forum with a proper evidentiary basis.
[28]
The limitation of 150 grams was likewise not
accidentally omitted or overlooked. It is referred to in the Reasons at
paragraphs 287-288 and not considered to be constitutionally infirmed.
[29]
The Plaintiffs’ request for the suspension of
sections 4, 5 and 7 of the Controlled Drugs and Substances Act was asked
for and denied (for the time being). As stated at paragraph 295 of the Reasons,
it would be a “blunt instrument”. Although in R
v Parker, (2000) 49 OR (3d) 481, 188 DLR (4th) 385 (ONCA), the Ontario
Court of Appeal granted the remedy immediately, it faced a different fact
situation to that facing this Court.
[30]
The Court has neither precluded that remedy nor
somehow inadvertently missed it. It chose to put in place a different remedial
structure.
IV.
Conclusion
[31]
This is the Plaintiffs’ fourth attempt to alter
the Manson Order. Its attempt this time is an impermissible attempt at an
appeal. It will not be allowed.
[32]
For all these reasons, the motion is dismissed
with costs.
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