Date: 20110322
Docket:
A-62-10
Citation:
2011 FCA 114
CORAM: BLAIS
C.J.
SHARLOW
J.A.
STRATAS
J.A.
BETWEEN:
TRUEHOPE NUTRITIONAL SUPPORT LIMITED,
and DAVID HARDY
Appellants
and
THE ATTORNEY GENERAL OF CANADA
and THE MINISTER OF HEALTH OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Calgary, Alberta, on March 22, 2011)
STRATAS J.A.
[1]
This
is an appeal from the judgment of Justice Campbell of the Federal Court: 2010 FC
63.
A. Background
[2]
The
appellant, TrueHope Nutritional Support Limited, markets and sells a substance
to treat mental illness. For some time, it has not accepted Health Canada’s
jurisdiction under the Food and Drug Act, R.S.C. 1985, c. F-27 to assess
the safety and regulate the marketing and sale of this substance in Canada. Health
Canada maintains that the sale of the substance in Canada and the marketing
of the substance in Canada offend a number of provisions of the Act and
the Regulations.
[3]
This
matter arises from an attempted importation into Canada in 2003 of a
small shipment of the substance. Health Canada intercepted it
at the border, seized it as non-compliant under paragraph 23(1)(d) of
the Act, and detained it under section 26 of the Act. Today, Health Canada still
possesses the shipment. Paragraph 23(1)(d) and section 26 read as
follows:
|
23.
(1)
Subject to subsection (1.1), an inspector may at any reasonable time enter
any place where the inspector believes on reasonable grounds any article to
which this Act or the regulations apply is manufactured, prepared, preserved,
packaged or stored, and may
…
(d) seize and detain for such time as may be necessary any
article by means of or in relation to which the inspector believes on
reasonable grounds any provision of this Act or the regulations has been
contravened.
26.
An inspector who has seized any
article under this Part shall release it when he is satisfied that all the
provisions of this Act and the regulations with respect thereto have been
complied with.
|
23. (1) Sous réserve du
paragraphe (1.1), l’inspecteur peut, à toute heure convenable, procéder à la
visite de tout lieu où, à son avis, sont fabriqués, préparés, conservés,
emballés ou emmagasinés des articles visés par la présente loi ou ses
règlements. Il peut en outre :
…
d) saisir
et retenir aussi longtemps que nécessaire tout article qui, à son avis, a
servi ou donné lieu à une infraction à la présente loi ou à ses règlements.
26. L’inspecteur, après
avoir constaté que les dispositions de la présente loi et de ses règlements
applicables à l’article qu’il a saisi en vertu de la présente partie ont été
respectées, donne mainlevée de la saisie.
|
[4]
In
the Federal Court, TrueHope and its principal, David Hardy (the appellants), challenged
Health Canada’s decision
to seize and detain the substance. They also challenged the constitutionality
of paragraph 23(1)(d) and section 26 of the Act. They invoked sections 7
and 8 of the Charter in support of these challenges. Sections 7 and 8 of the
Charter provide as follows:
|
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.
8. Everyone has the right to be secure
against unreasonable search or seizure.
|
7. Chacun a droit à la vie, à la liberté
et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit
qu'en conformité avec les principes de justice fondamentale.
8. Chacun a droit à la protection contre
les fouilles, les perquisitions ou les saisies abusives.
|
[5]
As
part of their challenges, the appellants submitted in the Federal Court that
the section 7 security of the person rights of the users of the substance were
infringed: the users could not obtain the substance and so their health was
impaired. The Federal Court judge held that the appellants did not have
standing to invoke the users’ rights in support of their challenge and so he
ruled the appellants’ evidence on this issue inadmissible. The Federal Court
judge went on to dismiss the appellants’ challenges under sections 7 and 8 on
their merits.
B. Analysis
[6]
We
agree with the result reached by the Federal Court judge although, as explained
below, not necessarily for all of the reasons he offered in support of that
result. This appeal must be dismissed.
(1) Section 7 of
the Charter and Mr. Hardy
[7]
The
appellants submit that Health Canada’s seizure and detention of the substance
has caused Mr. Hardy serious and profound harm to his psychological security,
contrary to section 7 of the Charter. We reject this submission and
substantially agree with the reasons and conclusions of the Federal Court judge
at paragraphs 112-117. In particular, the appellants did not establish that
the Federal Court judge committed any palpable and overriding error in making
the factual findings he did, findings that fall well-short of the threshold
necessary to establish an infringement of psychological security under section
7 of the Charter.
(2) Section 7 of
the Charter and the users of the substance
[8]
We
assume, without deciding, that the appellants had standing to invoke the
section 7 rights of the users of the substance in support of their challenges.
We also assume that evidence will establish that users have encountered or are
encountering difficulties in obtaining the substance and, as a result, their
health is impaired. Even on these assumptions, the appellants’ section 7
challenge against paragraph 23(1)(d) and section 26 of the Act must fail.
[9]
The
Act and the Regulations do not prohibit users from purchasing outside of Canada
and importing into Canada, for personal use, non-compliant,
non-prescription substances. Since 1998, Health Canada has given
guidance on this, in a policy statement entitled “Importation of Human-Use
Drugs for Personal Use Enforcement Directive.” Through the Directive, Health Canada has
announced some restrictions: the sale of the substance must take place outside Canada, only a
three month supply can be shipped at any one time, and it must be for the
personal use of the purchaser. The appellants have not challenged the Directive
or any of the restrictions in it.
[10]
The
Federal Court judge has found that under an agreement between Health Canada and TrueHope,
made shortly after this challenge was commenced, users of the substance have
been allowed to obtain the substance under the Directive, albeit with the
restrictions imposed by the Directive. As a result, in the words of the Federal
Court judge (at paragraphs 45-46), there has been “peace between Health Canada and TrueHope
to the present day.” In this Court, the appellants do not take issue with these
findings of fact by the Federal Court judge.
[11]
Therefore,
any difficulties that the users have experienced or are experiencing in obtaining
the substance can only be due to: (a) their failure to avail themselves of
their ability to import substances purchased outside of Canada for personal
use; (b) the restrictions imposed by the Directive; (c) possible non-compliance
by Health Canada with the Directive; (d) the agreement reached with Health
Canada; (e) some other provision in the Act or Regulations (which has not been
challenged here); or (f) any combination of these things. Paragraph 23(1)(d)
and section 26, said by the appellants to infringe section 7, are not the
operative cause of any difficulties.
(3) Section
8 of the Charter
[12]
The
appellants submit in this Court that paragraph 23(1)(d) and section 26
infringe section 8 of the Charter because they do not provide the appellants
with sufficient procedural protections. They also submit that the seizure of
the shipment was unreasonable under section 8 of the Charter.
[13]
In
our view, paragraph 23(1)(d) and section 26, when combined with the
right of an aggrieved person to challenge the seizures in Federal Court, as
happened here, afford sufficient procedural protections. As a practical matter,
the appellants became aware of the seizure and proceeded to Federal Court and
this Court, where they have had a full opportunity to contest the validity of
the seizure.
[14]
As
for the reasonableness of the seizure in this case, we substantially agree with
the reasons of the Federal Court judge in paragraph 128.
C. Conclusion
and disposition
[15]
Paragraph
23(1)(d) and section 26 of the Act and Health Canada’s seizure and
detention of the shipment in this case do not contravene sections 7 and 8 of
the Charter.
[16]
Therefore,
we shall dismiss the appeal with costs.
"David Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-62-10
APPEAL
FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE CAMPBELL DATED JANUARY 20, 2010,
DOCKET NO. T-880-03
STYLE OF CAUSE: TRUEHOPE
NUTRITIONAL SUPPORT
LIMITED and DAVID HARDY
v.
THE ATTORNEY GENERAL OF CANADA
and
THE MINISTER OF HEALTH OF
CANADA
PLACE
OF HEARING: Calgary, Alberta
DATE OF HEARING: March 22, 2011
REASONS FOR JUDGMENT OF THE
COURT BY: Blais C.J., Sharlow J.A., Stratas J.A.
DELIVERED FROM THE BENCH BY: Stratas J.A.
APPEARANCES:
|
Jason Gratl
Shawn
Buckley
|
FOR
THE APPELLANTS
|
|
Brenda Kaminski
Jaxine
Oltean
|
FOR
THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Gratl & Company
Vancouver,
British
Columbia
|
FOR THE APPELLANTS
|
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENTS
|
Email this Content