Sfetkopoulos et al. v. Canada (Attorney General), 2008 FCA 106

Court:Federal Court of Appeal (Canada)
Case Date:March 19, 2008
Jurisdiction:Canada (Federal)
Citations:2008 FCA 106;(2008), 377 N.R. 224 (FCA)
 
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Sfetkopoulos v. Can. (A.G.) (2008 ), 377 N.R. 224 (FCA)

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Temp. Cite: [2008] N.R. TBEd. JN.010

The Attorney General of Canada (appellant) 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 (respondents)

(A-55-08; 2008 FCA 106)

Indexed As: Sfetkopoulos et al. v. Canada (Attorney General)

Federal Court of Appeal

Richard, C.J.

March 19, 2008.

Summary:

In 2001, the Marihuana Medical Access Regulations (MMAR) provided, for the first time, access to marijuana for persons entitled to possess it for medicinal purposes (ATP holders). An ATP holder could grow the marijuana, have a designated person grow it for him under a designated-person production licence (DPPL), or obtain it from a licensed dealer. Section 41(b) of the MMAR prohibited a DPPL holder from producing for more than one customer, which forced some ATP holders wishing to use the same DPPL holder to purchase their marijuana illicitly.  In the 2003 case of Hitzig et al. v. Canada, the Ontario Court of Appeal (leave to appeal to the Supreme Court of Canada denied) held that the absence of a legal supply of marijuana for people entitled to possess and use it under the MMAR (i.e., a scheme that depended on an illicit source of supply) violated an ATP holder's right to liberty and security of the person (Charter, s. 7) in a manner that was contrary to the principles of fundamental justice. The offensive aspects of the MMAR were not justified under s. 1 of the Charter. As a remedy, s. 41(b) of the MMAR was declared invalid. Subsequently, the federal government amended the MMAR to replace s. 41(b) with the almost identical provisions of s. 41(b.1). The only significant change was that now marijuana was available from the government controlled Prairie Plant Services (PPS), the only licensed dealer in Canada. ATP holders applied for judicial review to have the court declare s. 41(b.1) invalid for infringing their rights under s. 7 of the Charter in a manner contrary to the principles of fundamental justice.

The Federal Court, in a judgment reported 323 F.T.R. 146, allowed the application, declaring s. 41(b.1) invalid as contrary to s. 7 of the Charter and remitting the ATP holders' application, to have a single DPPL holder (Carasel Harvest Supply Corp.) as the designated producer for all of them, to the Minister for reconsideration. The Attorney General appealed. The ATP holders cross-appealed. The Attorney General applied to stay the judgment pending judgment on the appeal and cross-appeal.

The Federal Court of Appeal, per Richard, C.J., granted a stay.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - In 2001, the Marihuana Medical Access Regulations (MMAR) provided access to marijuana for persons entitled to possess it for medicinal purposes (ATP holders) - An ATP holder could grow the marijuana, have a designated person grow it for him under a designated-person production licence (DPPL) or obtain it from a licensed dealer - Section 41(b) of the MMAR prohibited a DPPL holder from producing for more than one customer, forcing some ATP holders wishing to use the same DPPL holder to purchase their marijuana illicitly -  In 2003, the Ontario Court of Appeal (leave to appeal to the Supreme Court of Canada denied) held that the access restrictions imposed by s. 41(b) violated an ATP holder's right to liberty and security of the person (Charter, s. 7) in a manner contrary to the principles of fundamental justice and was not justified under s. 1 of the Charter - Section 41(b) was declared invalid - Subsequently, the federal government amended the MMAR to replace s. 41(b) with the almost identical provisions of s. 41(b.1) (still one customer per DPPL holder) - The only significant change was that marijuana was now available from the government-controlled Prairie Plant Services (PPS), the only licensed dealer in Canada - ATP holders applied for judicial review to have the court declare s. 41(b.1) invalid - The Federal Court declared s. 41(b.1) invalid as contrary to s. 7 of the Charter and remitted to the Minister for reconsideration the ATP holders' application to have a single DPPL holder (Carasel) as the designated producer for all of them - The access restrictions imposed by s. 41(b.1) violated s. 7 of the Charter contrary to the principles of fundamental justice - The designation of a government producer, which 80% of ATP holders did not use, did not render the restrictive access provisions of s. 41(b.1) in accordance with the principles of fundamental justice - ATP holders who could neither grow marijuana for themselves, nor find a DPPL holder to grow it for them, were still forced to purchase their marijuana illicitly - There was no reasonable justification to limit a DPPL holder to one customer or to force an ATP holder to purchase from PPS - Further, s. 43(b.1) violated s. 7 because it was arbitrary - Section 41(b.1) was not saved under s. 1 of the Charter because it was not rationally connected to its objectives and its restraint was disproportionate to the promoted state interests - The Federal Court of Appeal, per Richard, C.J., stayed the judgment pending the hearing of the Attorney General's appeal and the ATP holders' cross-appeal - There was a serious issue to be tried, the ATP holders would not be prejudiced because they had a licit supply of marijuana and the public interest favoured a stay.

Cases Noticed:

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. 8].

Canadian Council for Refugees et al. v. Canada (2008), 373 N.R. 387; 2008 FCA 40, refd to. [para. 13].

Counsel:

Sean Gaudet and James Gorham, for the appellant;

Ron Marzel, for the respondents.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Marzel Law, Toronto, Ontario, for the respondents.

This application was heard before Richard, C.J., of the Federal Court of Appeal, who delivered the following judgment on March 19, 2008.

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