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

CourtFederal Court of Appeal (Canada)
Case DateMarch 19, 2008
JurisdictionCanada (Federal)
Citations2008 FCA 106;(2008), 377 N.R. 224 (FCA)

Sfetkopoulos v. Can. (A.G.) (2008 ), 377 N.R. 224 (FCA)

MLB headnote and full text

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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5 practice notes
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2017
    • June 24, 2021
    ...115 Sfetkopoulos v Canada (Attorney General), 2008 FC 33 ; 2008 FCA 106 ........ 46, 47 Shaw v Phipps, 2012 ONCA 155 ................................................................................ 74 Sivia v British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79 .................
  • Standing, Suspending, and Sharing: The Limits of the Charter as a Tool of Social Change in Criminal Justice
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2017
    • June 24, 2021
    ...application while waiting for the 138 Sfetkopoulos v Canada (Attorney General), 2008 FC 33; Canada (Attorney General) v Sfetkopoulos , 2008 FCA 106. Standing, Suspending, and Sharing   47 legislature to respond. In this way, any corrective legislation enacted in response to the ruling can b......
  • Canada (Attorney General) v. Robinson,
    • Canada
    • Court of Appeal (Canada)
    • February 26, 2021
    ...to the public interest is less than is required of a private applicant. As this Court stated in Canada (Attorney General) v. Sfetkopoulos, 2008 FCA 106, 377 N.R. 224 at paragraph 11, quoting from RJRMacDonald: The test will nearly always be satisfied simply upon proof that the authority is ......
  • Pearson et al. v. Canada (Minister of Justice) et al., 2008 FC 1161
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • March 27, 2008
    ...104 (C.A.), refd to. [para. 14]. Sfetkopoulos et al. v. Canada (Attorney General) (2008), 323 F.T.R. 146; 2008 FC 33, revd. (2008), 377 N.R. 224; 2008 FCA 106, refd to. [para. 16]. R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, re......
  • Request a trial to view additional results
3 cases
  • Canada (Attorney General) v. Robinson,
    • Canada
    • Court of Appeal (Canada)
    • February 26, 2021
    ...to the public interest is less than is required of a private applicant. As this Court stated in Canada (Attorney General) v. Sfetkopoulos, 2008 FCA 106, 377 N.R. 224 at paragraph 11, quoting from RJRMacDonald: The test will nearly always be satisfied simply upon proof that the authority is ......
  • Pearson et al. v. Canada (Minister of Justice) et al., 2008 FC 1161
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • March 27, 2008
    ...104 (C.A.), refd to. [para. 14]. Sfetkopoulos et al. v. Canada (Attorney General) (2008), 323 F.T.R. 146; 2008 FC 33, revd. (2008), 377 N.R. 224; 2008 FCA 106, refd to. [para. 16]. R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, re......
  • Sfetkopoulos et al. v. Canada (Attorney General), (2008) 382 N.R. 71 (FCA)
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • October 27, 2008
    ...the judgment pending judgment on the appeal and cross- appeal. The Federal Court of Appeal, per Richard, C.J., in a judgment reported (2008), 377 N.R. 224, granted a The Federal Court of Appeal dismissed the appeal and denied the Attorney General's request that the declaration of invalidity......
2 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2017
    • June 24, 2021
    ...115 Sfetkopoulos v Canada (Attorney General), 2008 FC 33 ; 2008 FCA 106 ........ 46, 47 Shaw v Phipps, 2012 ONCA 155 ................................................................................ 74 Sivia v British Columbia (Superintendent of Motor Vehicles), 2014 BCCA 79 .................
  • Standing, Suspending, and Sharing: The Limits of the Charter as a Tool of Social Change in Criminal Justice
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2017
    • June 24, 2021
    ...application while waiting for the 138 Sfetkopoulos v Canada (Attorney General), 2008 FC 33; Canada (Attorney General) v Sfetkopoulos , 2008 FCA 106. Standing, Suspending, and Sharing   47 legislature to respond. In this way, any corrective legislation enacted in response to the ruling can b......

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