Sfetkopoulos et al. v. Canada (Attorney General), (2008) 382 N.R. 71 (FCA)

• Judge: Evans, Sharlow and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 27, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 382 N.R. 71 (FCA);2008 FCA 328

Sfetkopoulos v. Can. (A.G.) (2008), 382 N.R. 71 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. NO.025

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 328)

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

Federal Court of Appeal

Evans, Sharlow and Ryer, JJ.A.

October 27, 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., in a judgment reported (2008), 377 N.R. 224, granted a stay.

The Federal Court of Appeal dismissed the appeal and denied the Attorney General's request that the declaration of invalidity be stayed for one year.

Civil Rights - Topic 660.1

Liberty - Limitations on - Possession of a narcotic (incl. for purposes of trafficking, medicinal use, etc.) - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 1396.1

Security of the person - Health care (incl. mental health) - Medicinal use of marijuana - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Narcotic Control - Topic 6 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - A trial judge declared s. 41(b) of the Marihuana Medical Access Regulations to be invalid as contrary to s. 7 of the Charter - On appeal, the Attorney General sought a one year stay of the declaration of invalidity should its appeal be dismissed, to permit the re-design of the regulatory scheme to ensure it complied with the Charter without unduly increasing the risk the marijuana grown by designated persons for authorized medical users found its way into the hands of non-authorized users - The Federal Court of Appeal declined to stay the declaration of statute invalidity, stating that "first, the Crown failed to ask [the trial judge] to suspend the declaration of invalidity. Second, suspending a declaration that legislation is unconstitutional is a somewhat exceptional remedy and we are not persuaded that it should be granted in the circumstances of this case: the issues raised in this litigation have already had a long history in the courts; [the trial judge's] judgment was rendered in January of this year, that is, ten months ago; and the options available to the Crown to bring the regulatory scheme into compliance with the Charter, without jeopardizing competing policy objectives, are neither unclear nor particularly complicated." - See paragraphs 6 to 8.

Narcotic Control - Topic 6

General - Legislation - Exemptions - 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 affirmed the decision - See paragraphs 1 to 5.

Cases Noticed:

Hitzig et al. v. Canada (2003), 177 O.A.C. 321; 231 D.L.R.(4th) 104 (C.A.), refd to. [para. 2].

Counsel:

Sean Gaudet and James Gorham, for the appellant;

Ron Marzel and Alan Young, for the respondent.

Solicitors of Record:

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

Marzel Law, Toronto, Ontario, for the respondent.

This appeal was heard on October 27, 2008, at Toronto, Ontario, before Evans, Sharlow and Ryer, JJ.A., of the Federal Court of Appeal.

On October 27, 2008, Evans, J.A., delivered the following judgment orally for the Court of Appeal.