Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al., (2011) 420 N.R. 19 (FCA)

• Judge: Blais, C.J., Sharlow and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 22, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 420 N.R. 19 (FCA);2011 FCA 114

Truehope Nutritional Support v. Can. (A.G.) (2011), 420 N.R. 19 (FCA)

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[French language version follows English language version]

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

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Temp. Cite: [2011] N.R. TBEd. AP.018

Truehope Nutritional Support Limited and David Hardy (appellants) v. The Attorney General of Canada and The Minister of Health of Canada (respondents)

(A-62-10; 2011 FCA 114; 2011 CAF 114)

Indexed As: Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al.

Federal Court of Appeal

Blais, C.J., Sharlow and Stratas, JJ.A.

March 22, 2011.

Summary:

TrueHope Nutritional Support Ltd. marketed and sold a substance to treat mental illness. Health Canada maintained that the marketing and sale of the substance in Canada offended provisions of the Food and Drugs Act and the Regulations. Health Canada intercepted a shipment of the substance at the border, seized it as non-compliant under s. 23(1)(d) of the Act, and detained it under s. 26 of the Act. TrueHope and its principal (the appellants), challenged Health Canada's decision to seize and detain the substance. They also challenged the constitutionality of ss. 23(1)(d) and 26 of the Act. They invoked ss. 7 and 8 of the Charter in support of those challenges.

The Federal Court, in a decision reported at (2010), 360 F.T.R. 8, dismissed the application. The appellants appealed.

The Federal Court of Appeal dismissed the appeal. Sections 23(1)(d) and 26 of the Act and Health Canada's seizure and detention of the shipment did not contravene ss. 7 and 8 of the Charter.

Civil Rights - Topic 1206.5

Security of the person - Right to psychological integrity (incl. dignity, reputation, etc.) - TrueHope Nutritional Support Ltd. marketed and sold a substance to treat mental illness - Health Canada maintained that the marketing and sale of the substance in Canada offended provisions of the Food and Drugs Act and the Regulations - Health Canada intercepted a shipment of the substance at the border, seized it as non-compliant under s. 23(1)(d) of the Act, and detained it under s. 26 of the Act - TrueHope and its principal, Hardy (the appellants), brought an application challenging Health Canada's decision to seize and detain the substance - The application was dismissed - The appellants appealed - They submitted that the seizure and detention of the substance caused Hardy serious and profound harm to his psychological security, contrary to s. 7 of the Charter - The Federal Court of Appeal rejected the submission - The appellants did not establish that the application judge committed any palpable and overriding error in making the factual findings he did, findings that fell well-short of the threshold necessary to establish an infringement of psychological security under s. 7 of the Charter - See paragraph 7.

Civil Rights - Topic 1396

Security of the person - Health care (incl. mental health) - Treatment for the mentally ill - TrueHope Nutritional Support Ltd. marketed and sold a substance to treat mental illness - Health Canada maintained that the marketing and sale of the substance in Canada offended provisions of the Food and Drugs Act and the Regulations - Health Canada intercepted a shipment of the substance at the border, seized it as non-compliant under s. 23(1)(d) of the Act, and detained it under s. 26 of the Act - TrueHope and its principal (the appellants) challenged the decision to seize and detain the substance and the constitutionality of ss. 23(1)(d) and 26 of the Act - They invoked, inter alia, s. 7 of the Charter - The application was dismissed - The appellants appealed - The Federal Court of Appeal assumed, without deciding, that the appellants had standing to invoke the s. 7 rights of the users of the substance and that evidence would establish that users had encountered difficulties in obtaining the substance and, as a result, their health was impaired - However, even on those assumptions, the appellants' s. 7 challenge against ss. 23(1)(d) and 26 of the Act failed - The Act and the Regulations did not prohibit users from purchasing outside of Canada and importing into Canada, for personal use, non-compliant, non-prescription substances - Health Canada had given guidance on that issue in a policy statement (the Directive) - The application judge also found that under an agreement between Health Canada and TrueHope, users of the substance had been allowed to obtain the substance under the Directive, albeit with the restrictions imposed by the Directive - Sections 23(1)(d) and 26 were therefore not the operative cause of any difficulties that the users experienced in obtaining the substance - See paragraphs 8 to 11.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Food and Drug Control - Topic 1225 ].

Food and Drug Control - Topic 1225

Drugs - Search and seizure - Warrantless searches and seizures - TrueHope Nutritional Support Ltd. marketed and sold a substance to treat mental illness - Health Canada maintained that the marketing and sale of the substance in Canada offended provisions of the Food and Drugs Act and the Regulations - Health Canada intercepted a shipment of the substance at the border, seized it as non-compliant under s. 23(1)(d) of the Act, and detained it under s. 26 of the Act - TrueHope and its principal (the appellants) brought an application challenging Health Canada's decision to seize and detain the substance - The application was dismissed - The appellants appealed - The appellants submitted that ss. 23(1)(d) and 26 of the Act infringed s. 8 of the Charter because they did not provide the appellants with sufficient procedural protections - They also submitted that the seizure of the shipment was unreasonable under s. 8 of the Charter - The Federal Court of Appeal held that ss. 23(1)(d) and 26 of the Act, when combined with the right of an aggrieved person to challenge the seizures in Federal Court, afforded sufficient procedural protections - As for the reasonableness of the seizure, the court

substantially agreed with the reasons of the application judge - See paragraphs 12 to 14.

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8 [para. 4].

Food and Drugs Act, R.S.C. 1985, c. F-27, sect. 23(1)(d), sect. 26 [para. 3].

Counsel:

Jason Gratl and Shawn Buckley, for the appellants;

Brenda Kaminski and Jaxine Oltean, for the respondents.

Solicitors of Record:

Gratl & Company, Vancouver, B.C., for the appellants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard on March 22, 2011, at Calgary, Alberta, before Blais, C.J., Sharlow and Stratas, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Stratas, J.A., on the same date.