An inmate at Springhill Penitentiary, with a 35-year history of smoking marijuana prior to his incarceration (“Patriquen”), brought a motion seeking an interlocutory injunction requiring Health Canada to provide him with marijuana in accordance with his recently granted exemption from the provisions of the Controlled Drugs and Substances Act, an exemption which allowed him to use cannabis to treat medical conditions. The Federal Court held that Patriquen failed to provide evidence illustrating that the injunction should be granted.

28. October 2003 0

Administrative law – Prisons – Use of narcotics – Medicinal use of marijuana – Judicial review – Evidence – Remedies – Injunctions – Test

Patriquen v. Canada (Correctional Service), [2003] F.C.J. No. 1186, Federal Court, July 29, 2003, Blais J.

Patriquen was incarcerated in September of 2002 after being charged with possession of marijuana for the purpose of trafficking. Patriquen’s family doctor, Dr. Susan Lappin, submitted an application on Patriquen’s behalf to Health Canada for an exemption under the Controlled Drugs and Substances Act, S.C. 1996, c.19 to use cannabis to treat his medical conditions, mainly pain arising out of a work-related injury from some 11 years earlier and aggravated by a car accident in 1999. Health Canada granted the exemption on August 16, 2001. The exemption provided for use of the controlled substance for personal use only in the treatment of Patriquen’s symptoms. Following his imprisonment, Patriquen consistently requested to have the use of marijuana, in the form of marijuana cookies, as part of his “health care”.

Patriquen filed an Affidavit of Dr. Lappin in support of his contention that since being deprived of his medical marijuana, he had lost more than 40 pounds and was generally in failing health. The Court also reviewed Affidavit evidence of Dr. Christopher Levesque, an emergency physician who saw Patriquen on eight separate occasions between December 2002 and May 2003. In addition, the Court reviewed the Affidavit of Michael Corbett, warden of the Westmorland Institution, who deposed that Patriquen took walks outside on a daily basis and was not as unhealthy as he claimed to be.

The issue for the Court was whether Patriquen met the test developed by the Supreme Court of Canada in RJR-MacDonald v. Canada, [1994] 1 S.C.R. 311 for granting interlocutory injunctions. The Court conducted this analysis, beginning with whether there was a serious issue to be tried. The Court held that, given that the Corrections and Conditional Release Act, S.C. 1992, c. 20 required Correctional Service Canada to provide “essential health care” to prisoners, Patriquen’s question of whether providing him access to the baked goods containing cannabis represented “essential health care” constituted a serious issue to be tried.

The Court then moved on to consider whether the Applicant would suffer from irreparable harm if the injunction was not granted. The Court considered Patriquen’s contention that his health had failed considerably since being deprived access to cannabis, and preferred the evidence of Dr. Levesque and Mr. Corbett, which indicated that Patriquen was exaggerating his pain symptoms. Dr. Lappin’s Affidavit was essentially rejected, given that she had not seen Patriquen for eight to nine months prior to deposing the evidence in the Affidavit. The Court alluded to Patriquen’s extensive prior marijuana use, in stating:

The Applicant is trying to convince this Court that using marijuana is the panacea that would resolve his problems. If that were the case, those problems would have been resolved a long time ago.

The Court concluded that the Applicant would not suffer irreparable harm if he continued to be denied access to marijuana.

The Court considered the question of the balance of convenience and held that this largely favoured the Respondent, Canada (Correctional Services). The Court held that it would not be appropriate to order Health Canada to provide marijuana to Patriquen, since Mr. Corbett’s evidence suggested that introducing marijuana into the institution for distribution to inmates would pose an unreasonable risk to the safety of staff members, inmates, and visitors, as well as to the overall security of the institution. Further, Mr. Corbett deposed that the institution did not have a means of verifying the marijuana content of any marijuana “cookies” or other baked goods.

Patriquen’s application for an interlocutory injunction requiring Health Canada to provide him with a supply of medical marijuana while incarcerated was dismissed.

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