Sfetkopoulos v. Canada (Attorney General) (F.C.), 2008 FC 33, [2008] 3 F.C.R. 399


T‑1415‑04

2008 FC 33

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 (Applicants)

v.

The Attorney General of Canada (Respondent)

Indexed as: Sfetkopoulos v. Canada (Attorney General) (F.C.)

Federal Court, Strayer D.J.—Toronto, December 3, 2007; Ottawa, January 10, 2008.

Constitutional Law  — Charter of Rights  — Life, Liberty and Security — Judicial review seeking order declaring Marihuana Medical Access Regulations, s. 41(b.1) invalid  — S. 41(b.1) providing person designated under Regulations to produce marihuana for authorized user suffering from serious medical condition only capable of doing so for one such user  — This restriction on access infringing applicants’ liberty, security rights under Charter, s. 7 as, inter alia, forcing authorized users not capable of growing for themselves or of engaging designated producer to seek marihuana on black market — No substantial, compelling collective interests justifying s. 41(b.1)—S. 41(b.1) arbitrary, inconsistent with rule of law, fundamental justice — Application allowed.

Food and Drugs — Marihuana Medical Access Regulations allowing certain persons with serious medical conditions to apply for authorization to possess (ATP) marihuana — Regulations limiting lawful sources of supply to marihuana produced by ATP holder, by person they designate, or from licensed dealer — Regulations, s. 41(b.1) providing designated person may only produce for one ATP holder — This restriction contrary to Canadian Charter of Rights and Freedoms, s. 7.

Under the Marihuana Medical Access Regulations, persons suffering from a terminal disease, symptoms associated with such a disease or certain other conditions are entitled to apply to the Minister of Health for an authorization to possess (ATP) dried marihuana. The Regulations limit the lawful sources of supply of dried marihuana for the ATP holder to marihuana produced by that holder or by a person they designate, or from a licensed dealer as provided for by the Interim Policy for the Provision of Marihuana Seeds and Dried Marihuana Product for Medical Purposes in Canada. The person designated by the ATP holder must obtain a designated person production licence, and can produce for only one ATP holder pursuant to paragraph 41(b.1). This was an application for judicial review of the decision of the Minister of Health refusing to grant Carasel Harvest Supply Corporation of Smith Falls, Ontario licences to produce marihuana for more than one of the ATP holding applicants. More specifically, pursuant to Constitution Act, 1982, subsection 52(1) the applicants sought an order declaring paragraph 41(b.1) of the Regulations invalid as being contrary to section 7 of the Canadian Charter of Rights and Freedoms and referring the matter back to the Minister for reconsideration.

Held, the application should be allowed.

There were no substantial and compelling collective interests against which the applicants’ section 7 rights (in this case, liberty and security) could be subordinated. These rights include the right to choose, on medical advice, to use marihuana for the treatment of a serious condition, and the right not to have one’s physical liberty endangered by the risk of imprisonment from having to access marihuana illicitly. They also include the right for those with a medical need to have access to medication without undue state interference. The respondent’s arguments to justify paragraph 41(b.1) were all rejected. Paragraph 41(b.1) was thus found to be inconsistent with the rule of law and the principles of fundamental justice. It leaves those ATP holders who cannot grow for themselves and who cannot engage a designated producer because of the restrictions imposed on the latter by the Regulations, to seek marihuana in the black market. It is also not tenable for the government, consistently with the right established in other courts for qualified medical users to have reasonable access to marihuana, to force them either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers. Finally, paragraph 41(b.1) is arbitrary in the sense that it causes individuals a major difficulty with access while providing no commensurate furtherance of the interests of the state. Paragraph 41(b.1) infringes on section 7 liberty and security rights.

The matter was sent back to the Minister for reconsideration. It was not appropriate for the Court to retain supervisory jurisdiction because it would be required to monitor future legislation and veto proposed regulations apparently inconsistent with a right of access. The declaration making paragraph 41(b.1) of the Regulations invalid was self‑executing. No implementation was required.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 23, 24(1).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1).

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 4.

Federal Courts Act, R.S.C., 1985, c. F‑7, s. 1 (as am. by S.C. 2002, c. 8, s. 14).

Food and Drugs Act, R.S.C., 1985, c. F‑27.

Marihuana Medical Access Regulations, SOR/2001‑227, ss. 41(b) (as rep. by SOR/2003‑387, s. 9), (b.1) (as enacted idem), 54 (as rep. idem, s. 10), 54.1 (as enacted idem, s. 11).

Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 6.

Regulations Amending the Marihuana Medical Access Regulations, SOR/2003‑387.

Single Convention on Narcotic Drugs, 1961, March 30, 1961, [1964] Can. T.S. No. 30, Art. 23.

cases judicially considered

distinguished:

Doucet‑Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; 218 N.S.R. (2d) 311; 232 D.L.R. (4th) 577; 45 C.P.C. (5th) 1; 112 C.R.R. (2d) 202; 312 N.R. 1; 2003 SCC 62; revg (2001), 194 N.S.R. (2d) 323; 203 D.L.R. (4th) 128; 85 C.R.R. (2d) 189; 2001 NSCA 104; revg (2000), 185 N.S.R. (2d) 246; 575 A.P.R. 246 (S.C.).

considered:

R. v. Parker (2000), 49 O.R. (3d) 481; 188 D.L.R. (4th) 385; 146 C.C.C. (3d) 193; 37 C.R. (5th) 97; 75 C.R.R. (2d) 233; 135 O.A.C. 1 (C.A.); revg in part (1997), 12 C.R. (5th) 251; 48 C.R.R. (2d) 352 (Ont. Prov. Div.); Hitzig v. Canada (2003), 171 C.C.C. (3d) 18; 10 C.R. (6th) 122; 101 C.R.R. (2d) 320 (Ont. S.C.J.); appeal dismissed; cross‑appeal allowed in part (2003), 231 D.L.R. (4th) 104; 177 C.C.C. (3d) 449; 14 C.R. (6th) 1; 111 C.R.R. (2d) 201 (Ont. C.A.); application for leave to appeal to S.C.C. dismissed, [2004] 1. S.C.R. x; R. v. Long (2007), 88 O.R. (3d) 146; 226 C.C.C. (3d) 66; 159 C.R.R. (2d) 301; 2007 ONCJ 340.

referred to:

Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; R. v. Heywood, [1994] 3 S.C.R. 761; (1994), 120 D.L.R. (4th) 348; 50 B.C.A.C. 161; 94 C.C.C. (3d) 481; 34 C.R. (4th) 133; 24 C.R.R. (2d) 189; 174 N.R. 81; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; (2005), 254 D.L.R. (4th) 577; 130 C.R.R. (2d) 99; 335 N.R. 25; 2005 SCC 35.

authors cited

Health Canada. Drug Strategy and Controlled Substances Programme. Interim Policy for the Provision of Marihuana Seeds and Dried Marihuana Product for Medical Purposes in Canada, July 2003.

Regulatory Impact Analysis Statement, SOR/2003‑387, C. Gaz. 2003.II.2984.

APPLICATION for an order declaring that paragraph 41(b.1) of the Marihuana Medical Access Regulations, which provides that a person designated pursuant to the Regulations to produce marihuana for an authorized user may only do so for one such user, is contrary to the Canadian Charter of Rights and Freedoms, section 7. Application allowed.

appearances:

Ron Marzel and Alan Young for applicants.

Christopher K. Leafloor and James Gorham for respondent.

solicitors of record:

Marzel and Associates, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment and judgment rendered in English by

Strayer D.J.:

INTRODUCTION

[1]This is an application for judicial review. The applicants ask that the Court declare invalid paragraph 41(b.1) [as enacted by SOR/2003-387, s. 9] of the Marihuana Medical Access Regulations, SOR/2001‑227 (MMAR). A request in the original application for mandamus requiring the Minister of Health to authorize Carasel Harvest Supply Corporation (Carasel) to be a designated producer of medicinal cannabis for all of the applicants has been withdrawn. Instead the applicants ask that the matter be referred back to the Minister for reconsideration. The applicants also request that this Court retain supervisory jurisdiction over Health Canada’s implementation of a revised process for allowing a single designated producer of medical marihuana to produce for more than one medical user.

FACTS

[2]The MMAR permit certain persons to apply to the Minister of Health for authorization to possess (ATP) dried marihuana. The application must show that the applicant suffers from a terminal disease specified in the Regulations, or from symptoms associated with such diseases, or certain other conditions where the medical opinions certify that marihuana might mitigate such conditions. The Regulations limit the lawful sources of supply of dried marihuana for the ATP holder to marihuana produced by that holder or by a person designated by him, or from a licensed dealer. If the ATP holder produces for himself he must have a personal-use production licence (PPL). If he obtains from a person he designates, that person must obtain a designated‑person production licence (DPL). That licence holder can obtain a licence to produce for only one user (MMAR, paragraph 41(b.1), and may not produce marihuana in common with more than two other holders of DPLs (MMAR, section 54.1[as enacted by SOR/2003-387, s.11]). There is one licensed dealer in Canada, Prairie Plant Systems Inc. (PPS) which grows marihuana under contract with the Government of Canada in a mine in Flin Flon, Manitoba. That production is further processed in Saskatoon, Saskatchewan.

[3]All of the present applicants applied to the Minister of Health to designate as their producer Carasel of Smith Falls, Ontario. The manager of Carasel was licensed to produce marihuana for one of the applicants and her husband was licensed to produce for another. Otherwise the applicants’ request for licences designating Carasel as their DPL were refused as advised in a letter dated May 20, 2004, to Carasel from the Director General, Drug Strategy and Controlled Substances Program of Health Canada basing the decision on paragraph 41(b) [repealed, idem, s. 9]  of the MMAR. This paragraph read as follows:

41. The Minister shall refuse to issue a designated‑person production licence [if]

(b) the designated person would be the holder of more than one licence to produce;

(In point of fact, paragraph 41(b) had by then been found invalid as described below, and had been replaced by an identical provision re‑enacted as paragraph 41(b.1).)

[4]This issue has a substantial history. Prior to the adoption of the MMAR there was no authorized system for persons with severe medical conditions to obtain dried marihuana. The possession of such marihuana was prohibited by the Controlled Drugs and Substances Act, S.C. 1996, c. 19, section 4 and by the Narcotic Control Act, R.S.C., 1985, c. N‑1, section 6 [this Act was repealed by the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 94]. While there had been some other cases touching on this problem, the first leading authority was the case of R. v. Parker (2000), 49 O.R. (3d) 481 decided by the Ontario Court of Appeal in July 2000. Mr. Parker suffered from epilepsy and found that smoking marihuana helped him avoid serious symptoms. He was charged with possession and cultivation of marihuana. Evidence from his doctor and from experts generally supported the beneficial effects of marihuana, particularly for those suffering from epilepsy. The trial Judge [(1997), 12 C.R. (5th) 251 (Ont. Prov. Div.)] had found that the evidence established the therapeutic effects of marihuana in treatment of epilepsy and that its denial to the defendant was an infringement of section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. He therefore granted an exemption to the defendant from the statutes prohibiting possession of marihuana. On appeal, the Ontario Court of Appeal confirmed that section 4 of the Controlled Drugs and Substances Act (the Narcotics Control Act having been repealed in the interim) was invalid in that it deprived Mr. Parker of his rights to liberty and security contrary to section 7 of the Charter. In its judgment of July 31, 2000, the Court declared section 4 invalid but suspended the declaration for a year to allow the government to provide some substitute arrangement consistent with the Court’s decision. One day before the expiry of that suspension, on July 30, 2001, the Governor in Council enacted the MMAR. Those Regulations, while providing a system for medical users with ATPs to grow and possess marihuana legally or to obtain it legally from a DPL, drastically restricted the use of DPLs. The MMAR prohibited compensation being paid to a designated producer and more seriously, limited the production of a DPL to one customer. These Regulations came under attack in Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 in the Ontario Superior Court of Justice. On January 9, 2003, that Court found the Regulations limiting an ATP’s supply to either marihuana grown by the user or by a DPL (where the DPL could not be paid and could only grow for one user) were so restrictive as to force many users to obtain marihuana illicitly on the black market. (PPS had not at that time been licensed as a dealer to provide its production to users: at that time its production was being used for research only.) The Superior Court of Justice held that the Regulations infringed Mr. Hitzig’s rights of liberty and security under section 7 of the Charter. The learned Judge found that the restrictions were not in accordance with the principles of fundamental justice because there was no rational connection between the restrictions and the state’s interests. In response, in July 2003, Health Canada developed the Interim Policy for the Provision of Marihuana Seeds and Dried Marihuana Product for Medical Purposes in Canada. This policy, combined with some amendments to the MMAR, allowed people with an ATP to obtain dried marihuana or a marihuana seed directly from PPS. While this was announced before the hearing by the Ontario Court of Appeal of Hitzig, the Court was not asked to take into account the constitutionality of that policy or whether it affected the constitutionality of the Regulations held by the Ontario Superior Court of Justice to be invalid. The Ontario Court of Appeal rendered its judgment in Hitzig on October 7, 2003 [(2003), 231 D.L.R. (4th) 104]. It held various aspects of the MMAR to be invalid. The portions of concern to us are those relating to access to supply. The Court struck down the requirements that a DPL not be compensated and that he be confined to one customer. The Court was particularly concerned that even the government recognized that many holders of an ATP could not obtain a licit supply of marihuana but would have to resort to the black market. Requiring medical users to obtain their supplies illicitly infringed their liberty and security interests, which interests embraced a right of reasonable access to a substance which the government acknowledges they may possess and consume. It found that the principles of fundamental justice include the recognition of the rule of law, and that state conduct which leads to—indeed countenances —violation of the law is contrary to those principles. Further, it applied the test of whether the restrictions furthered some substantial and compelling collective interest, and it could find none. In considering the government’s invocation of section 1 of the Charter, the Court held that for similar reasons the restrictions imposed in the Regulations on access to marihuana for medical purposes were not rationally connected to such legitimate objectives as the state had in controlling access to marihuana. As a result, the Court struck down several provisions in the MMAR. We are only concerned here with provisions concerning access by authorized persons. The Court struck down paragraph 41(b), the successor to which is in issue before me in the present case. The Court also struck down the provisions on compensation for DPLs and the limitations on them that they could only produce for one user and could grow jointly with only two other producers.

[5]On December 3, 2003, the Governor in Council adopted several amendments to the MMAR (see SOR/2003‑387). While it repealed a number of provisions which the Court in Hitzig had found to be invalid, including paragraph 41(b), it re‑enacted paragraph 41(b) in virtually identical terms as paragraph 41(b.1) which requires the Minister to refuse to issue a designated-person production licence:

41.

(b.1) if the designated person would be the holder of more than one licence to produce…

It also re‑enacted, as section 54.1, previous section 54 [repealed by SOR/2003-387, s. 10] which prohibited a DPL from producing in common with more than two other DPLs. It is the re‑enacted paragraph 41(b.1) that the applicants seek to have declared invalid for essentially the same reasons as its predecessor was declared invalid in Hitzig by the Ontario Court of Appeal.

[6]The Minister, however, lays some stress on the fact that on December 3, 2003, with the coming into force of the amendments to the MMAR, Health Canada announced, as referred to above, its Interim Policy for the Provision of Marihuana Seeds and Dried Marihuana Product for Medical Purposes. This was designed to give authorized persons reasonable access to a legal source of supply. Essentially it facilitated ATP holders obtaining dried marihuana or seed from the government’s contractor, PPS. It is not in dispute that as of the summer of 2007, fewer than 20% of persons with ATPs were obtaining their marihuana from PPS (in July 2007, 392 out of a total of 1 983 ATP holders).

ANALYSIS

Introduction

[7]The issue before me is that of reasonable access to a supply of dried marihuana or seed for those who already possess an authorization to possess marihuana. I have some misgivings about the Court prescribing therapeutic substances which are not drugs approved under the elaborate and scientific processes of the Food and Drugs Act [R.S.C., 1985, c. F-27], and on which there is far from a scientific consensus as to their benefits. But matters have moved well beyond that issue. The courts would not find themselves in the business of prescribing medical treatment were it not for the decision over 20 years ago that section 7 authorizes them (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486), in the determination of what is contrary to the principles of fundamental justice, to pass judgment not only on the procedural fairness but also on the substantive correctness of the law. But we must apply the constitution as the Supreme Court of Canada has found it to be. It is clear that the Government of Canada has accepted, by adopting the MMAR and the Interim Policy, that undue restraints on access to marihuana for those to whom it has given authority to possess such substance do attract the strictures of section 7 of the Charter. These were the central findings by the Ontario Court of Appeal in the Parker and Hitzig decisions. It appears that the Crown never sought to appeal Parker and an application for leave to appeal in the Hitzig case was dismissed by the Supreme Court of Canada ([2004] 1 S.C.R.x), that appeal apparently being framed on the correctness of the remedies chosen by the Ontario Court of Appeal. After each of these decisions by the Ontario Court of Appeal, the Government of Canada took steps to make its law and practices conform to the Charter requirements identified by the Court. While the Attorney General in the present case sought to argue again the applicability of the principles of fundamental justice, it appears to me that the real issues in dispute here are as to whether the remedial steps taken by the government have brought it into conformity with the Charter requirements identified in Parker and Hitzig. The Attorney General has, correctly I believe, pointed out that those requirements do not include an obligation on the part of government to supply marihuana to medical users. What the Charter requires is that government not hinder for no good reason those with demonstrated medical need to obtain this substance.

Standard of Review

[8]While neither party raised this issue, I take it that it is incumbent on me to address it as this is a judicial review of a decision of the Minister or his delegate with respect to applications for designation of a supplier. Such decisions are of course reviewable under the Federal Courts Act [R.S.C., 1985, c. F-7, s. 1 (as am. by S.C. 2002, c. 8, s. 14)] without any privative clause. The nature of the question is essentially one of constitutional law. As such it is more amenable to authoritative determination by the courts rather than the Minister. While the parties have put some facts in issue, they were not facts which were put before the Minister: they are “legislative” facts presented to assist the constitutional analysis in this Court and are for determination by the Court. For these reasons I am satisfied the standard of review of the Minister’s decision is correctness.

Issues

[9]It appears to me that there are essentially two questions for me to determine. First, is paragraph 41(b.1) contrary to the Charter? Second, in determining this does the Interim Policy of December 3, 2003, whereby greater access is provided to PPS product, provide a factual context in which paragraph 41(b.1) can be seen as a permissible limitation on one form of supply, namely that from designated producers?

[10]I am satisfied from the decisions of the Ontario Court of Appeal in Parker and in Hitzig, that paragraph 41(b.1) is a restriction on section 7 liberty and security rights of the applicants. This is the paragraph which has been evoked by the Minister to prevent them from being able to choose their designated producer, namely Carasel. In determining whether there is a breach of section 7 of the Charter, one must first find an infringement of an interest protected by section 7 and then consider whether, if there is a restriction on that interest, it is in accordance with the principles of fundamental justice. For the reasons given by the Ontario Court of Appeal in Hitzig, at paragraphs 97‑104, I conclude that both the liberty and security interests of the applicants are negatively affected by paragraph 41(b.1). As for the liberty interests, “liberty” comprehends the right to make decisions of fundamental personal importance. This would include the right to choose, on medical advice, to use marihuana for treatment of serious conditions, that right implying a right of access to such marihuana. It would also include the right not to have one’s physical liberty endangered by the risk of imprisonment from having to access marihuana illicitly. With respect to security, this interest includes the similar right for those with medical need to have access to medication without undue state interference.

[11]In determining whether these limits on section 7 interests are in accordance with the principles of fundamental justice, one can consider whether the individual rights in section 7 may nevertheless be subordinated to substantial and compelling collective interests (see Hitzig, at paragraph 119, and authorities cited therein). Such a limitation, if it does little or nothing to enhance the state’s interest, can be regarded as arbitrary: see Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at page 594; R. v. Heywood, [1994] 3 S.C.R. 761, at pages 792-793; and Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, at paragraphs 130, 131, 231. I believe that paragraph 41(b.1) fails this test.

[12]First it must be observed that, according to the government’s own statistics, some 80% of persons with ATPs who have been duly authorized to have and use marihuana are not obtaining it from the government source, namely PPS. The evidence shows that many users are unable to grow their own marihuana, either because they are too ill or because their home circumstances do not make it possible. While I have no statistics on the percentage of the market supplied by DPLs, the Regulations remain almost as restrictive as those which were struck down by the Ontario Court of Appeal as creating an undue restraint on an ATP’s recognized right to access. The Ontario Court of Appeal held that, by inference, a large percentage of ATPs were getting their marihuana from illicit sources. The only things that have changed in this respect since that decision is the amendment to the MMAR permitting designated producers to be compensated, and the availability of marihuana and seeds from the government’s producer, PPS. I will discuss the latter factor later.

[13]The government’s justification for re‑enacting the previously invalidated paragraph 41(b) as a new paragraph 41(b.1) was stated in the Regulatory Impact Analysis Statement [C. Gaz. 2003.II.2984] published with the Regulations of December 3, 2003 amending the MMAR. That justification is as follows (the reference to section 54 is not directly relevant but shows the policy being pursued):

·     Paragraph 41(b) will be re‑enacted to reinstate on a national basis, the limit on the number of persons for whom one designated person can produce marihuana; under the MMAR, one DPPL holder can cultivate for only one ATP holder; and

·     Section 54 will be re‑enacted to reinstate on a national basis, the limit on the number of DPL holders who can produce marihuana in common; under the MMAR, a DPL holder is not permitted to produce marihuana in common with more than two other DPL holders.

 These limits on the production of marihuana are necessary to:

Ces limites sur la production de marihuana sont nécessaires pour :

‑ maintain control over distribution of an unapproved drug product, which has not yet been demonstrated to comply with the requirements of the FDA/FDR;

‑ minimize the risk of diversion of marihuana for non‑medical use;

‑ be consistent with the obligations imposed on Canada as a signatory to the United Nations’ Single Convention on Narcotic Drugs, 1961 as amended in 1972 (the 1961 Convention), in respect of cultivation and distribution of cannabis; and

‑ maintain an approach that is consistent with movement toward a supply model whereby marihuana for medical purposes would be: subject to product standards; produced under regulated conditions; and distributed through pharmacies, on the advice of physicians, to patients with serious illnesses, when conventional therapies are unsuccessful. Such a model would also include a program of education and market surveillance.

In its argument, the government has essentially adopted this rationale for the re‑enactment of paragraph 41(b.1). It is therefore necessary to consider whether such reasons provide a basis for saying that paragraph 41(b.1) is in accordance with the principles of fundamental justice. In the particular context of this case I will consider criteria such as that adopted by the Ontario Court of Appeal in Hitzig, at paragraphs 109‑128, holding that fundamental justice requires respect for the rule of law and thus cannot countenance a system which forces authorized medical users of dried marihuana to obtain it illicitly. Also I will have regard to the question of whether the limitation in paragraph 41(b.1) is arbitrary, not genuinely connected to the protection of the interests of the state. In this, I rely on the authority of cases such as Rodriguez and Chaoulli, cited above with relevant passages.

[14]The first justification offered by the respondent for paragraph 41(b.1) as set out in the 2003 Regulatory Impact Analysis Statement quoted above, is that such a restriction on designated producers limiting them to produce for only one user is for the purpose of maintaining control over distribution of an unapproved drug product. It has not been demonstrated to me why limiting the production of a designated producer to one customer will have this effect. The Regulations only permit such producer to produce marihuana for persons already authorized by the Minister to possess and use marihuana: that is, holders who have an ATP licence. ATP holders are persons adjudged by the Minister to be legitimate users of this “unapproved drug” and whether the producer grows for one ATP holder or 30 ATP holders the distribution of marihuana would be to persons, and for purposes, already countenanced by the Regulations. Some mention was made of quality control being jeopardized if designated producers could produce for more than one customer. I am unaware that Health Canada imposes any quality control on designated producers now but if it does, or even if it does not, it can put in place the same kind of quality controls for designated producers with one or many customers. Indeed it seems logical that if designated producers were authorized to produce for many customers there would be economies of scale and a level of income that might make possible even better quality control by the producer. At the same time, a host of one‑customer designated producers would be made unnecessary and therefore any control and inspection system Health Canada might wish to impose on designated producers would be simpler and cheaper to operate with fewer producers.

[15]As a second rationale, it is said by the government that paragraph 41(b.1) will “minimize the risk of diversion of marihuana for non‑medical use.” That, too, has not been explained to my satisfaction. Again, designated producers, no matter how many customers they have, must confine their sales to persons with an ATP. A designated producer, since he is authorized to grow marihuana now, has a present potential for producing more than his one customer needs and diverting the surplus for illicit sale. This would be true whether he grows for one customer or 25. I suppose that it might be easier, in a grow operation large enough to supply 25 legitimate customers, to conceal a larger potential surplus of production for illicit sale. This is hypothetical and it might equally be said that, as noted above, with fewer designated producers having larger operations, a system of inspection would be much easier to sustain than in the present plethora of single‑customer producers. The government also argues that a larger grow operation run by a designated producer with multiple customers would, because of its size, attract theft. But it is also argued by the applicants that a larger operation, because of efficiencies of scale, could have a better security system and indeed could be more secure than the typical home‑based self-producer or single‑customer designated producer.

[16]At this point it may be observed, in respect of both the first and second rationales that it may well be that there could be justification for limiting the size of operations of designated producers, to facilitate supervision and inspection for quality and security. But any new regulations to this end will have to be justified as having a demonstrable purpose rationally related to legitimate state interests. No such justification has been offered to me for paragraph 41(b.1).

[17]As the third justification for paragraph 41(b.1) the government has invoked the United Nations Single Convention on Narcotic Drugs, 1961 [March 30, 1961, [1964] Can. T.S. No. 30] which, the government says, imposes on it obligations “in respect of cultivation and distribution of cannabis.” I have studied the Convention and the affidavit of the Minister’s witness on this subject and remain puzzled. The Convention appears to require the Government of Canada to control marihuana as a narcotic drug and to limit its use to medical and scientific purposes. It requires a medical prescription for the supply or dispensation of drugs to individuals and a system of limiting quantities of drugs available to them. It requires that Canada maintain a system to control all persons and enterprises engaged in the trade or distribution of drugs which must be carried out under licence. It would appear that Canada complies with these requirements except for the requirement of a prescription for any cannabis authorized for individual medical use, although the MMAR system may constitute an adequate substitute. The Minister lays particular stress on Article 23 of the Convention which requires that a state permitting the cultivation of marihuana have an Agency to carry out functions under that article. Paragraph 2(d) of Article 23 requires that cultivators of marihuana be required to deliver their total crops to the Agency. According to the Minister, Health Canada has been designated as the Agency for Canada. The Minister argues as follows:

To allow growers to supply to more than one person who is authorized to possess and use marihuana for medical purposes would obligate the Government, in compliance with the 1961 Convention, to collect all marihuana produced.

This appears to me to be a non sequitur. If the Convention requires that all “cultivators” of marihuana must deliver their “total crops” to the Agency (as Article 23 specifies) then presumably holders of PPLs and DPLs, even though they produce for one person, should deliver their “total crops” to Health Canada. That is not done: the MMAR contemplates that production is consumed by a user, whether produced by himself or by his designated producer. I have failed to see how allowing a designated producer to produce for multiple users creates some new problem vis‑à‑vis the Convention which does not already exist. Counsel agreed that the Convention has not been made part of the law of Canada as such although parts of it have been implemented by Canadian law. To the extent that the MMAR, if they were to permit the holder of the DPL to produce for more than one ATP holder, might conflict with the Convention, this domestic law must prevail over an unimplemented international treaty. Further if to follow the requirements of the Convention were to conflict with Canadian constitutional requirements such as the guarantees in section 7 of the Charter then the Canadian constitution must prevail in this Court.

[18]Fourthly, the government says that paragraph 41(b.1) is necessary to “maintain an approach that is consistent with movement toward a supply model” whereby medical marihuana would be produced and made available like other therapeutic drugs, on prescription and through pharmacies. That may well be a laudable goal and if ever reached would make unnecessary litigation such as the present case. But we do not know when this new age will dawn and in the meantime the courts, in their wisdom, have concluded that persons with serious conditions for which marihuana provides some therapy should have reasonable access to it. It is no answer to say that someday there may be a better system. Nor does the hope for the future explain why a designated producer must be restricted to one customer.

[19]Consequently, I have concluded that the restraint on access which  paragraph 41(b.1) provides is not in accordance with the principles of fundamental justice. First, it does not adequately respond to the concerns motivating the Ontario Court of Appeal judgment in Hitzig: that is it leaves those ATP holders who cannot grow for themselves and who cannot engage a designated producer because of the restrictions imposed on the latter by the MMAR, to seek marihuana in the black market. The Ontario Court of Appeal said that this is contrary to the rule of law, to pressure a citizen to break the law in order to have access to something he medically requires. The only factor which has changed since the Hitzig case arose is the advent of PPS as a licensed dealer. The Minister argues that any ATP holder, who cannot grow for himself or cannot find a designated producer prepared to dedicate himself solely to that ATP holder, may obtain his dried marihuana or seed from a government contractor, namely PPS. That certainly does provide an alternative avenue of access. But the evidence shows that after four years of this new policy of the government supply of marihuana, fewer than 20% of ATP holders resort to it. The applicants take the position that the PPS product is inferior and not to the taste of most users. They say that PPS only makes available one strain of marihuana for medical use whereas there are several strains which have different therapeutic effects depending on the condition of the user. The evidence as to the quality of the PPS product was almost all hearsay and anecdotal. The expert scientific evidence as to the different therapeutic effects of various strains mainly indicates that there is great uncertainty and the subject requires further research. I am therefore not prepared to lead a judicial incursion into yet another field of medicine and pass judgment on the quality of the PPS product. In my view it is not tenable for the government, consistently with the right established in other courts for qualified medical users to have reasonable access to marihuana, to force them either to buy from the government contractor, grow their own or be limited to the unnecessarily restrictive system of designated producers. At the moment, their only alternative is to acquire marihuana illicitly and that, according to Hitzig, is inconsistent with the rule of law and therefore with the principles of fundamental justice.

[20]I also find that  paragraph 41(b.1) is inconsistent with the principles of fundamental justice because it is arbitrary in the sense that it causes individuals a major difficulty with access while providing no commensurate furtherance of the interests of the state.

[21]For these reasons I find paragraph 41(b.1) to infringe the applicants’ rights to liberty and security under section 7 of the Charter and therefore to be invalid.

[22]In written submissions the respondent invoked, as an alternative, section 1 of the Charter. His position is even more difficult under section 1 as there he has the onus of establishing that such a limitation is demonstrably justified. His argument in this respect adds little to the justification offered under section 7. Assuming that there are some legitimate objectives being pursued by adoption of the MMAR, for the same reasons that I found paragraph 41(b.1) to be arbitrary and thus contrary to the principles of fundamental justice I find that it is not rationally connected to the objectives stated for it and its restraint is disproportional to any state interests promoted.

[23]The applicants argued certain other grounds which I will not go into in any detail. It was argued that the current Regulations were adopted without adequate consultation with the “stakeholders” and therefore they are invalid. The evidence did not entirely support the claim of no consultation, and in any event, I know of no authority for the proposition that there is a constitutional requirement in the legislative process for consultation to occur with parties who may have an interest. However desirable consultation may be, it has not yet become a constitutional imperative in the legislative process. The applicants also cited to me the recent case of R. v. Long (2007), 88 O.R. (3d) 146. In this case an Ontario Court of Justice Judge held invalid  subsection 4(1) of the Controlled Drugs and Substances Act, which prohibits the possession of marihuana because in his view, the Government of Canada had not yet adequately removed barriers to access. The MMAR still limits access. While the policy adopted in 2003 could make it possible for anyone in need of marihuana to obtain it from PPS, the government contractor, the learned Judge did not consider this to be enough because that policy is not expressed in law. Therefore, while persons who have a constitutional right to access might in fact get it through PPS, they could not be said to have a legal right to that access, only the benefit of an administrative policy permitting it. I do not intend to deal with this case further. It is under appeal. Further, I have found that the unnecessary restrictions on access in paragraph 41(b.1) cannot be overcome by a forced monopoly for PPS product for those who cannot grow for themselves or find an available designated producer. Therefore the question of whether the policy should be embodied in law is not relevant to my finding.

[24]In conclusion, it can be said that the Minister in assuming the validity of paragraph 41(b.1) did not take a correct view of the law.

REMEDIES

[25]The applicants requested that I declare paragraph 41(b.1) of the MMAR to be of no force or effect on the basis that it violates section 7 of the Canadian Charter of Rights and Freedoms. I will so declare. They have also requested that, in lieu of their original request for mandamus, I refer their applications for the designation of Carasel as their producer back to the Minister for reconsideration consistently with my reasons. I will so direct.

[26]Further, the applicants have asked that I should, under subsection 24(1) of the Canadian Charter of Rights and Freedoms,

… retain supervisory jurisdiction over Health Canada’s creation and implementation of a new process for allowing multiple patients to designate a single designated producer by requiring Health Canada to submit periodic reports on the status and progress of the new process.

The applicants mainly rely on the decision of the Supreme Court of Canada in Doucet‑Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 where, by a majority of 5‑4, that Court reversed the decision of the Court of Appeal of Nova Scotia [(2001), 194 N.S.R. (2d) 323] and upheld the decision of the trial Judge [(2000), 185 N.S.R. (2d) 246 (S.C.)] to retain such jurisdiction. He had declared that francophones in five school districts in Nova Scotia were entitled to “homogeneous French‑language facilities and programs at the secondary school level.” While the Government of Nova Scotia did not deny the entitlement of the plaintiffs to such facilities under section 23 of the Charter, some years had passed without those facilities being provided. In his judgment declaring the entitlement, the trial Judge ordered the respondents to use their best efforts to comply with the orders requiring these facilities to be provided, and the Court retained jurisdiction to hear reports from the respondents respecting their compliance with this order. This order was set aside by the Nova Scotia Court of Appeal, on the grounds that the trial Judge was functus officio once he made the order and could not continue “supervisory jurisdiction.” The majority in the Supreme Court of Canada reversed this decision. The Court listed several considerations which should be taken into account when deciding whether to retain supervisory jurisdiction. It also said that in this case the trial Judge was not functus officio because although continuing a supervisory role he did not purport to retain any jurisdiction to change the declarations of entitlement.

[27]I am not persuaded that I should retain supervisory jurisdiction in this case. First, it should be noted that the Doucet‑Boudreau case did not involve a determination under subsection 52(1) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] that a law is invalid, as does the present case. In Doucet‑Boudreau, the duty owed under section 23 of the Charter was not in dispute, only its implementation and this was a remedial order under subsection 24(1) of the Charter, a matter of implementation by the construction of facilities and the organization of courses to comply with the requirements of the declaration. In the present case, I am making a declaration of invalidity under subsection 52(1) of the Constitution Act, 1982. That declaration will be self‑executing, making invalid paragraph 41(b.1) of the MMAR. As I have signaled in my reasons, I cannot preclude the Governor in Council amending the Regulations yet again if to do so it would achieve some legitimate goal while preserving reasonable access by ATP holders to marihuana. That is always a possibility after every declaration of invalidity. But the Supreme Court of Canada, both the majority and the minority, in Doucet‑Boudreau recognized that one of the factors to be taken into account in choosing a remedy of supervisory jurisdiction is the separation of powers. What would be required of me if I were to retain supervisory jurisdiction would be the monitoring of future legislation and, if such jurisdiction were to be of any use to the applicants, I would have to exercise a veto over new proposed regulations which appear to me to be inconsistent with that right of access. Under the circumstances, I do not think that is appropriate and I will not so order.

[28]The applicants will, of course, be entitled to their costs.

JUDGMENT

THIS COURT HEREBY ORDERS AND ADJUDGES that

1.  Paragraph 41(b.1) of the Marihuana Medical Access Regulations, SOR/2001‑227, as amended, be declared invalid as contrary to section 7 of the Canadian Charter of Rights and Freedoms;

2. The refusal of the applications by the applicants for designated‑person production licences designating Carasel Harvest Supply Corporation as their designated producer be set aside and these matters be referred back to the Minister for reconsideration in accordance with these reasons;

3. The applicants be awarded costs.

v.478