Administrative law – Medicinal use of marijuana – Charter of Rights and Freedoms – Life liberty or security of the person – Validity of legislation – Judicial review application – Standard of review – Correctness – Compliance with legislation – Legislation – Ultra vires
Sfetkopoulos v. Canada (Attorney General),  F.C.J. No. 6, Federal Court of Canada, January 10, 2008, Strayer D.J.
The Applicant’s all held a valid “authorization to possess” (ATP) dried marijuana under the MMAR. The Regulations limited the lawful sources of supply of dried marijuana for the ATP holder to marijuana produced by that holder or a person designated by him, or from a licensed dealer. If marijuana was obtained from a designated person, that person must obtain a “Designated Person Production License” (DPPL). A DPPL license holder can obtain a license to produce for only one user (MMAR, subsection 41(b.1), and may not produce marijuana in common with more than two other holders of DPPL’s (MMAR, section 54.1). The issue before the Court was that of reasonable access to a supply of dried marijuana or seed for those who already held an authorization to possess marijuana. The Ontario Court of Appeal decision in R. v. Parker (2000), 49 O.R. (3rd) 481 (O.C.A.) held that statutes prohibiting possession of marijuana were an infringement of Section 7 Charter rights where the therapeutic effects of marijuana were beneficial in treating medical ailments. As a result, the federal government introduced the MMAR to provide a system for medical users with ATP’s to grow and posses marijuana legally or to obtain it legally from a DPPL. Those regulations, which drastically restricted the use of DPPLs came under attack in Hitzig v. Canada,  O.J. No. 3873 (C.A.). The Ontario Court of Appeal held various aspects of the MMAR to be invalid and struck down the requirements that a DPPL not be compensated and that he be confined to one customer.
Following Hitzig, the Governor in Counsel adopted several amendments to the MMAR, and reenacted subsection 41(b) in virtually identical terms as subsection 41(b.1). As a result, a DPPL’s production was limited to one customer.
The Court held that the applicable standard of review was “correctness”. After reviewing the decisions of the Ontario Court of Appeal in Parker and Hitzig, the Court concluded that subsection 41(b.1) was a restriction on Section 7 liberty and security rights of the Applicants. The phrase “liberty” comprehends the right to make decisions of fundamental personal importance. The Court held that this included the right to choose, on medical advice, to use marijuana for treatment of serious conditions, that right implying a right of access to such marijuana. The Court further held that Section 7 included the right not to have one’s physical liberty endangered by the risk of imprisonment from having to access marijuana illicitly. With respect to security, the Court held that this interest includes the similar right for those with medical need to have access to medication without undue state interference. The Court noted that the Regulations remained 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.
In determining whether the government’s rationale for the reenactment of subsection 41(b.1) was in accordance with the principles of fundamental justice, the Court reviewed the rationales given.
One rationale given was that subsection 41(b.1) allowed the government to maintain control over distribution of an unapproved drug product. The Court concluded that it had not been demonstrated that limiting the production of a DPPL to one customer would have that effect. The Court also rejected the argument that subsection 41(b.1) would “minimize the risk of diversion of marijuana for non-medical use”. The Court did accept that these rationales could provide justification for limiting the size of operations of designated producers, in order to facilitate supervision and inspection for quality and security, but that any new regulations to this end would have to be justified as having a demonstrable purpose rationally related to legitimate state interests. The Court rejected the government’s argument that ATP holders could buy their marijuana from a government contractor, or grow their own.
Accordingly, the Court granted the Applicant’s Motion for a declaration that subsection 41(b.1) of the MMAR was of no force or effect on the basis that it violated Section 7 of the Charter of Rights and Freedoms. The matter was referred back to the Minister for reconsideration consistent with its Reasons.
However, the Court declined the request that it retain supervisory jurisdiction over the case. While acknowledging that a remedy of supervisory jurisdiction was possible, it was not advisable on the present facts due to the separation of powers, in that it would be inappropriate for the Court to monitor future legislation and veto proposed regulations which appeared to be inconsistent with the right access.
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