Allard et al. v. Canada, (2014) 451 F.T.R. 45 (FC)

JudgeManson, J.
CourtFederal Court (Canada)
Case DateMarch 18, 2014
JurisdictionCanada (Federal)
Citations(2014), 451 F.T.R. 45 (FC);2014 FC 280

Allard v. Can. (2014), 451 F.T.R. 45 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] F.T.R. TBEd. AP.047

Neil Allard, Tanya Beemish, David Hebert and Shawn Davey (applicants/plaintiffs) v. Her Majesty the Queen in Right of Canada (respondent/defendant)

(T-2030-13; 2014 FC 280; 2014 CF 280)

Indexed As: Allard et al. v. Canada

Federal Court

Manson, J.

March 21, 2014.

Summary:

Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana. Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014. The plaintiffs moved for an interlocutory injunction or an interlocutory constitutional exemption, together with an order in the nature of mandamus. The relief sought 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.

The Federal Court allowed the application to the extent of granting limited relief by preserving certain rights under the MMAR. The motion was otherwise dismissed.

Civil Rights - Topic 8380.8

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Statute deemed inapplicable (incl. doctrine of constitutional exemption) - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The plaintiffs requested either an interim constitutional exemption from the Controlled Drugs and Substances Act (CDSA) or, alternatively, an interlocutory exemption/injunction preserving the MMAR, together with an order in the nature of mandamus to compel continuation of the MMAR program pending trial - The Federal Court, after determining that the requirements for an interlocutory injunction were met, concluded that an interim constitutional exemption was inappropriate as it would exempt medically-approved patients and their designates from the possession, trafficking and possession for the purposes of productions provisions in the CDSA without qualification - Mandamus was also inappropriate - While a mandatory order might be more appropriate in an interim setting than declaratory relief, a mandatory order could be imprecise - Further, it was assumed that the government would carry out its duties in a manner consistent with the law - The relief sought by plaintiffs could be accomplished in a manner least intrusive to the legislative sphere by exempting those who currently held a valid Authorization to Possess, Designated-person Production Licence (DPL) or Personal-use Production Licence (PPL) as of September 30, 2013 (the last date for the issuance of DPLs and PPLs unless the application was received prior to that date), or held 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 were inconsistent with the relevant provisions of the MMAR, pending an expeditious trial and decision on its merits - The terms by which those individuals were so authorized to produce or possess dried marijuana were those authorized by their licence except the 150 gram personal possession limit imposed by the MMPR was to apply - See paragraphs 124 to 131.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - [See Civil Rights - Topic 8380.8 ].

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The relief sought 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 - The Federal Court concluded that there was a serious issue to be tried - The plaintiffs' affidavits established that their s. 7 Charter liberty and security interests might be infringed - While their claims might not succeed at trial, they were not frivolous or vexatious - Similarly, they had a basis to claim that there was a serious issue in that the risk to their security and or liberty interest was not in accordance with the principles of fundamental justice - See paragraph 74.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The relief sought would preserve the provisions of the MMAR and limit the applicability of certain provisions of the MMPR, pending a final resolutions of the merits of their claims - The Federal Court held that the plaintiffs had established irreparable harm that could not be remedied if the injunction was denied - The plaintiffs would be unable to afford marijuana produced by the licensed producers under the MMPR as of March 31, 2014, and that inability would likely affect either their health, endanger their liberty, or severely impoverish them - The plaintiffs' reliance on the Licensed Producer's current prices was not speculation - It was the only evidence available and given its source, it was reliable - The government argument that the price would decline over time was far from certain and it was a long-term forecast - Likewise, the government's argument that it might develop a subsidy program was mere conjecture - The court also considered the difficulties in receiving damages in constitutional cases - See paragraphs 92 to 96.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The relief sought 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 - The Federal Court stated that there was a strong presumption in favour of legislation enacted by Parliament being in the public interest, but the presumption was rebuttable if the plaintiffs could show that their injunctive relief would serve a public interest greater than that served by maintaining the impugned legislation - Further, it was not for the court on an interlocutory injunction motion to assess the benefits of the legislation's specific terms - See paragraph 100.

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The relief sought 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 - The Federal Court stated that the plaintiffs were representatives of an identifiable group that reflected a public interest - Patients should have legal access to medication reasonably required to treat a medical condition - That group would be irreparably harmed by the effects of the MMPR - For the government, the public interest was embodied by the strong presumption that the MMPR regime would increase individual and public health, safety and security by reducing abuse and problems associated with the MMAR - That interest included any negative impact an injunction would have on licensed producers under the MMPR and any expenditures necessitated by Health Canada as a result of an injunction - The court concluded that the nature of the irreparable harm that the plaintiffs would suffer under the MMPR constituted a "clear case" which outweighed the public interest in wholly maintaining the MMPR which was presumed to, inter alia, increase the health, safety and security of the public - The balance of convenience favoured the plaintiffs in the limited sense that they should have access to medical marijuana through the previous MMAR regime with respect to possession and production - See paragraphs 117 to 121.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - [See fifth Civil Rights - Topic 8587 ].

Injunctions - Topic 1609

Interlocutory or interim injunctions - General principles - Circumstances when injunction will issue - [See Civil Rights - Topic 8380.8 ].

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - [See second Civil Rights - Topic 8587 ].

Injunctions - Topic 1617.2

Interlocutory or interim injunctions - General principles - Preventing statute enforcement or implementation - [See Civil Rights - Topic 8380.8 and fourth and fifth Civil Rights - Topic 8587 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations (MMPR), repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The relief sought 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 - The Federal Court, in assessing irreparable harm, held that there was inadequate evidence to show that there would be an insufficient supply of marijuana under the MMPR - Further, the plaintiffs had not met their burden respecting whether the licensed producers under the MMPR would offer the particular strain necessary to meet the plaintiffs' medical needs - Both of those claims amounted to speculative arguments - The plaintiffs had also failed to prove that the 150 gram personal limit imposed by the MMPR would constitute irreparable harm - See paragraphs 87 to 91.

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See third Civil Rights - Topic 8587 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - Medically-approved patients under the Marihuana Medical Access Regulations (MMAR) regime (the plaintiffs) sued the Federal government for various declarations, seeking to rely on s. 7 of the Charter to invalidate recent changes which dictated the circumstances in which medically-approved patients could obtain and possess marijuana - Those changes, contained in the Marihuana for Medical Purposes Regulations, repealed the MMAR as of March 31, 2014 - The plaintiffs moved for, inter alia, an interlocutory injunction - The Federal Court stated that "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 ... 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. ... Rather, ... the court in constitutional cases should focus its balance of convenience analysis on what is in the public interest." - See paragraphs 97 and 98.

Injunctions - Topic 2309

Mandatory injunctions - Interim or interlocutory mandatory injunctions - [See Civil Rights - Topic 8380.8 ].

Injunctions - Topic 7001

Particular matters - Exercise of statutory power - General - [See Civil Rights - Topic 8380.8 and fourth and fifth Civil Rights - Topic 8587 ].

Cases Noticed:

R. v. Parker (T.) (2000), 135 O.A.C. 1 (C.A.), refd to. [para. 5].

R. v. Mernagh (M.) (2013), 301 O.A.C. 333; 2013 ONCA 67, refd to. [para. 5].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 67].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 67].

Khadr v. Canada (2005), 277 F.T.R. 298; 2005 FC 1076, refd to. [para. 68].

Snuneymuxw First Nation et al. v. British Columbia et al., [2004] B.C.T.C. 205; 2004 BCSC 205, refd to. [para. 69].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 73].

Human Rights Institute of Canada et al. v. Goldie et al., [2000] 1 F.C. 475; 176 F.T.R. 225 (T.D.), refd to. [para. 75].

Human Rights Institute of Canada v. Canada (Minister of Public Works and Government Services) - see Human Rights Institute of Canada et al. v. Goldie et al.

El-Timani v. Canada Life Assurance Co., [2001] O.T.C. Uned. 686 (Sup. Ct.), refd to. [para. 76].

Simon et al. v. Canada (Attorney General) (2012), 407 F.T.R. 130; 2012 FC 387, affd. (2012), 441 N.R. 149; 2012 FCA 312, refd to. [para. 76].

Elsipogtog First Nation v. Canada (Attorney General) - see Simon et al. v. Canada (Attorney General).

Ausman v. Equitable Life Insurance Co. of Canada, [2002] O.J. No. 3066 (Sup. Ct.), refd to. [para. 76].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 79].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Québec (Sous-ministre du Revenu) et autres v. 143471 Canada Inc. et autres, [1994] 2 S.C.R. 339; 167 N.R. 321; 61 Q.A.C. 81, refd to. [para. 79].

Tabah v. Quebec (Attorney General) - see Québec (Sous-ministre du Revenu) et autres v. 143471 Canada Inc. et autres.

P.D. v. British Columbia et al., [2010] B.C.T.C. Uned. 290; 2010 BCSC 290, refd to. [para. 80].

Canada (Attorney General) v. United States Steel Corp. et al. (2010), 406 N.R. 297; 2010 FCA 200, refd to. [para. 80].

International Longshore and Warehouse Union, Canada et al. v. Canada (Attorney General) et al. (2008), 371 N.R. 357; 2008 FCA 3, refd to. [para. 80].

Gateway City Church v. Minister of National Revenue (2013), 445 N.R. 360; 2013 FCA 126, refd to. [para. 80].

Groupe Archambault Inc. v. CMRRA/Sodrac Inc. et al. (2005), 357 N.R. 131; 2005 FCA 330, refd to. [para. 80].

Horii v. Canada et al. (1991), 132 N.R. 48 (F.C.A.), refd to. [para. 87].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 99].

Hitzig et al. v. Canada, [2003] O.T.C. 10 (Sup. Ct.), refd to. [para. 109].

Telus Communications Co. v. Rogers Communications Inc. (2009), 281 B.C.A.C. 38; 475 W.A.C. 38; 2009 BCCA 581, refd to. [para. 114].

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 123].

Ontario v. Criminal Lawyers Association of Ontario - see R. v. Russel (W.I.).

Lac La Biche (Town) et al. v. Alberta (1993), 135 A.R. 352; 33 W.A.C. 352 (C.A.), refd to. [para. 131].

Counsel:

John W. Conroy, Q.C., and Tonia Grace, for the applicants/plaintiffs;

Jan Brongers and BJ Wray, for the respondent/defendant.

Solicitors of Record:

Conroy & Company, Abbotsford, British Columbia, for the applicants/plaintiffs;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent/defendant.

This case was heard on March 18, 2014, at Vancouver, British Columbia, by Manson, J., of the Federal Court, who delivered the following reasons for judgment on March 21, 2014.

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20 practice notes
  • Digest: R v Graham, 2018 SKQB 188
    • Canada
    • Saskatchewan Law Society Case Digests
    • June 18, 2018
    ...c C-46, s 354(1)(a) Federal Regulations Considered: Marihuana Medical Access Regulations, SOR/2001-227 Cases Considered: Allard v Canada, 2014 FC 280, 451 FTR 45 Allard v Canada, 2014 FCA 298, 324 CRR (2d) 78 R v C.W.H. (1991), 3 BCAC 205, 68 CCC (3d) 146 R v Davidson (1971), 3 CCC (2d) 509......
  • Yashcheshen v Saskatchewan (Ministry of Health),
    • Canada
    • Court of Appeal (Saskatchewan)
    • June 2, 2022
    ...CCC (3d) 193 (Ont CA); Hitzig v Canada (2003), 177 CCC (3d) 449 (Ont CA), leave to appeal to SCC refused, [2004] 1 SCR x; Allard v Canada, 2014 FC 280, 451 FTR 45, rev’d in part 2014 FCA 298, 324 CRR (2d) 78; Allard v Canada, 2016 FC 236, 349 CRR (2d) 86; and R v Smith, 2015 SCC 34, ......
  • Turmel v. Canada, 2016 FCA 9
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • January 11, 2016
    ...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......
  • R. v. Vu, 2018 ONCA 436
    • Canada
    • Court of Appeal (Ontario)
    • May 10, 2018
    ...the repeal of the MMAR, allowing both PPL and DPL license-holders to continue to produce marijuana for medical purposes: Allard v. Canada, 2014 FC 280, 451 F.T.R. 45, aff’d 2014 FCA 298, 324 C.R.R. (2d) 78 (the “Allard injunction”). [4] Following the hearing, the panel sought further submis......
  • Request a trial to view additional results
18 cases
  • Yashcheshen v Saskatchewan (Ministry of Health),
    • Canada
    • Court of Appeal (Saskatchewan)
    • June 2, 2022
    ...CCC (3d) 193 (Ont CA); Hitzig v Canada (2003), 177 CCC (3d) 449 (Ont CA), leave to appeal to SCC refused, [2004] 1 SCR x; Allard v Canada, 2014 FC 280, 451 FTR 45, rev’d in part 2014 FCA 298, 324 CRR (2d) 78; Allard v Canada, 2016 FC 236, 349 CRR (2d) 86; and R v Smith, 2015 SCC 34, ......
  • Turmel v. Canada, 2016 FCA 9
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • January 11, 2016
    ...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......
  • R. v. Vu, 2018 ONCA 436
    • Canada
    • Court of Appeal (Ontario)
    • May 10, 2018
    ...the repeal of the MMAR, allowing both PPL and DPL license-holders to continue to produce marijuana for medical purposes: Allard v. Canada, 2014 FC 280, 451 F.T.R. 45, aff’d 2014 FCA 298, 324 C.R.R. (2d) 78 (the “Allard injunction”). [4] Following the hearing, the panel sought further submis......
  • Allard c. Canada,
    • Canada
    • Federal Court (Canada)
    • February 24, 2016
    ...429, 192 C.R.R. (2d) 79; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Allard v. Canada, 2014 FC 280, 451 45; R. v. Morgentaler, [1988] 1 S.C.R. 30, (1988), 44 d.l.R. (4th) 385; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C......
  • Request a trial to view additional results
1 firm's commentaries
1 books & journal articles
  • Digest: R v Graham, 2018 SKQB 188
    • Canada
    • Saskatchewan Law Society Case Digests
    • June 18, 2018
    ...c C-46, s 354(1)(a) Federal Regulations Considered: Marihuana Medical Access Regulations, SOR/2001-227 Cases Considered: Allard v Canada, 2014 FC 280, 451 FTR 45 Allard v Canada, 2014 FCA 298, 324 CRR (2d) 78 R v C.W.H. (1991), 3 BCAC 205, 68 CCC (3d) 146 R v Davidson (1971), 3 CCC (2d) 509......

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