TURMEL: Conroy loses 150g limit; Left-Outs get re-hearing JCT: Some good news and bad news out of the Allard decision at the Federal Court of Appeal yesterday. Heres the decision parsed: A-174-14 NEIL ALLARD, TANYA BEEMISH, DAVID HEBERT and SHAWN DAVEY Heard at Vancouver, British Columbia, on November 24, 2014. Judgment delivered at Ottawa, Ontario, on December 15, 2014. Date: 20141215 Docket: A-174-14 Citation: 2014 FCA 298 CORAM: NADON J.A. WEBB J.A. BOIVIN J.A. BOIVIN J.A. [1] This appeal is from a decision of Mr. Justice Manson of the Federal Court (the judge) dated March 21, 2014. [2] The judge exercised his discretion to grant an interlocutory injunction to the respondents under s. 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (Charter), as well as under Rule 373(1) of the Federal Courts Rules, SOR/98-106. [3] The judges decision preserves certain rights that were available under the Marihuana Medical Access Regulations, SOR/2001-227 (the MMAR) thus staying the full coming into force of the Marihuana for Medical Purposes Regulations, SOR/2013-119 (the MMPR) for the persons and classes of persons covered by the order, pending determination of the trial on the merits. The trial is currently scheduled to commence on February 23, 2015. [4] The underlying action is a claim that the MMPR violates the respondents section 7 Charter rights to life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice. In particular, the respondents challenge the MMPRs prohibition of the personal production of marihuana for medical purposes and the possession limit of 150 grams of dried marihuana. JCT: No challenge to all the other impediments in the MMPR kept over from the MMAR nor other serious flaws like LPs being able to cancel your exemption for business reasons! [5] Prior to the coming into force of the MMPR, the MMAR provided for a licence scheme whereby eligible persons who have a declaration signed by a medical practitioner are issued an Authorization to Possess (ATP) marihuana. Individuals who had an ATP could lawfully obtain access to marihuana (i) through a Personal Production Licence pursuant to which the individual was allowed to produce a determined quantity of marihuana for his own use; (ii) through a Designated Person Licence pursuant to which the individual was able to designate another person to produce his or her marihuana; (iii) by purchasing dried marihuana directly from Health Canada which contracted with a private company to produce and distribute marihuana. [6] The Crown (appellant) appeals the interlocutory order on the ground that the respondents failed to conclusively establish irreparable harm. It submits that the evidence on this point was at best speculative and the judge therefore erred when he found the evidence sufficient to establish the said harm. JCT: Cant prove that not getting your medicine causes irreparably harm conclusively enough for them. The appellant also contends that the judge erred in finding that this was a clear case in which the interests of the respondents outweighed the public interest and thus that the balance of convenience lay in favour of the respondents. JCT: Yes, its so much more important for the nation to keep herb off the street than to keep patients alive. [7] The respondents cross-appeal on the remedy and argue that the judge erred in that he limited the remedy to too narrow a group of medical marihuana users. The respondents also submit that the judge ought to have recognized that the 150-gram limit on possession under the MMPR does constitute irreparable harm as it affected the respondents. They further argued at hearing before this Court that it impacted on the respondents mobility. Accordingly, the respondents submit that the judges order is too narrow in scope and ought to be broadened. I. The Appeal [8] For the following reasons, I am of the view that the judge did not misapprehend the facts, proceed on an erroneous principle of law or insufficiently weigh a relevant factor which would allow our Court to intervene on a discretionary interlocutory order (Canada (Attorney General) v. Simon, 2012 FCA 312, [2012] F.C.J. No. 1538 [Elsipogtog FCA] at para. 22 citing Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at pp. 154-156.). [9] The judge reviewed the legislative schemes at issue, as well as the jurisprudence that gave rise to the requirement that the government provide a legal source of marihuana for persons with a medical need for the drug. He also referred to the three sets of regulations governing access to medical marihuana in Canada, and described the individual applicants. He then summarized the affidavit evidence for both sides, the relief sought at trial, the interlocutory order sought, and outlined the issues before him. [10] In the analysis portion of his reasons, the judge agreed with the parties that the applicable test for obtaining an injunctive relief is the tri-partite test established by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 and affirmed in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: 1. Is there a serious issue to be tried? 2. Will the applicants suffer irreparable harm if the interlocutory relief does not issue? 3. Does the balance of convenience favour the issuance of the interlocutory relief requested? [11] Before the judge, the parties did not dispute that there was a serious issue to be tried. The bulk of the judges analysis, accordingly, relates to the irreparable harm and balance of convenience branches of the test. [12] On the issue of irreparable harm, the judge accepted the principle that economic hardship could contribute to a finding of irreparable harm in combination with other factors and on the basis of jurisprudence of our Court accepting serious economic hardship on individuals as a relevant factor to consider in the context of interlocutory relief. The judge was convinced on the evidence before him, that the price increase from the personal production under the MMAR to the cost of purchase under the MMPR would severely impoverish the applicants. This was an inference that was open for him to make and was supported by the jurisprudence (see Elsipogtog FCA at paras. 37-38). JCT: So not being able to afford LP prices but being able to afford home-grown matters. [13] The judge therefore found that the evidence demonstrated that the applicants inability to afford marihuana would likely affect their health, endanger their liberty or severely impoverish them. As such, a failure to grant the interlocutory relief sought would result in irreparable harm (judges reasons at paras. 92 and 96). JCT: And yet, the Courts failed to grant relief to Robert Roy and Stephen Burrows which would result in irreparable harm when it was pointed out. [14] I cannot see a reviewable error of law or misapprehension of the facts or inappropriate weighing of a factor by the judge, nor that his order creates an obvious injustice. [15] Moving to the balance of convenience prong of the test, the appellant submits that the judge was under a fundamental misapprehension of the facts in how he addressed the public interest benefits of the MMPR. Considering without deciding whether this is a clear case which outweighs the public interest (judges reasons at para. 119), I am of the view that the judge correctly applied the legal principles flowing from Elsipogtog FCA to the facts of this case and there is no reason to disturb his finding on balance of convenience. The judge weighed and considered the evidence both parties placed before him and I cannot detect a reviewable error in the judges legal analysis. In essence, the appellant is asking this Court to reweigh the evidence. This is not the role of this Court. JCT: So its official that unaffordable LP prices matter. II. The Cross-Appeal [16] On the matter of the cross-appeal, the respondents argue that although the order of the judge provides a remedy to the respondents Mr. Neil Allard and Mr. Shawn Davey, it fails to provide relief to the other two (2) respondents, Ms. Tanya Beemish and Mr. David Hebert. Accordingly, they ask this Court to broaden the scope of the order to include Ms. Beemish and Mr. Hebert. JCT: So when Justice Manson only grandfathered their Grow Permits but not their Possess Permits that go with the Grow Permits, Beemish and Hebert were Left Out like Robert and Stephen for letting their exemptions expire when they saw no reason to plant another crop theyd only have to destroy. So, though unstated, nothing but the grand-fathering of the Possess Permits with the Grow Permits is in discussion. Nothing else. [17] Throughout his analysis, the judge does not distinguish between the four (4) respondents to whom he refers as the applicants. On the irreparable harm portion of his reasons, the judge uses the word applicants (judges reasons at paras. 77 and 96) without distinction. In addressing the balance of convenience, he again refers to the applicants as representatives of an identifiable group and finds that the balance of convenience lies with the applicants (judges reasons at paras. 117 and 120). JCT: So the whole class of self-growers have a right to life that suffers irreparable harm when denied their medicine, not just the Allard Plaintiffs. [18] While the judge carefully crafted and tailored his order in a way that he considered minimally intrusive into the legislative sphere (judges reasons at para. 121), it does not provide remedy to patients who held valid production licences on September 30, 2013 but whose authorizations to possess expired between September 30, 2013 and March 21, 2014 (the date of his order). The judges choice of March 21, 2014 as the cut-off date has the effect of excluding Ms. Beemish and Mr. Hebert from his order. JCT: And many thousands more who chose not to renew in the months leading up to Destruct Day because there was no reason to plant another crop just to be destroyed. 3-6 months worth of medical users who didnt renew because of Health Canadas threatening Directive. [19] With respect, the difficulty with the judges finding is that although he provides a right (the interlocutory injunction) to the four (4) respondents - Mr. Allard, Mr. Davey, Ms. Beemish and Mr. Hebert - he does not, in contrast, explain why he deprives two (2) respondents - Ms. Beemish and Mr. Hebert - of a remedy. After careful reading of the judges reasons, I am left to speculate as to his intention. JCT: So while Justice Manson provides a right to all, he does not provide a remedy to Beemish, Hebert, Roy and Burrows and can only speculate at why. Since there really is no reason why, is there? [20] In these circumstances, I cannot address properly the determination the respondents are seeking as I am unable to understand whether the judge intended to exclude Ms. Beemish and Mr. Hebert or simply forgot to deal with their situation. JCT: Did he intend to cut off thousands of medical users by not grand-fathering their Possess with their Grow Permits or did he just forget? In other words, the judges reasons do not allow this Court to perform its appellate function. JCT: Actually, the judges lack of reasons do not allow this Court to even guess at why he would have done that to thousands of sick people. [21] After considering making an assessment of the evidence, I believe that the wiser course is to return the matter to the judge with a direction that he specifically addresses the situation of Ms. Beemish and Mr. Hebert. JCT: So now the irreparable harm goes on while its sent back to Justice Manson to find out if he intended the irreparable harm by not grand-fathering their Possess Permits too or did he cause the irreparable harm by accident? Did those thousands lose their production facilities for cheap meds on an oops? asks the higher court? Finally, why not grant them an interim exemption to do like the other two. Oh right, Conroy couldnt ask for an interim exemption like we do because his previous request was rejected for being without limitation. Then our Interim Exemptions for Personal Medical Use were dismissed because his had been!!! [22] Finally, I do not agree with the respondents contention that the judge erred in his determination that they failed to show irreparable harm based on the 150-gram possession limit. He exercised his discretion and considered both parties interest, arguments and evidence. There is no basis for our Courts intervention on this issue and I therefore decline to expand the scope of the judges order. JCT: So, Conroy explaining how the Allards suffered mobility issues under the 150-gram limit couldnt convince the court of any irreparable harm. So Health Canadas long- sought 5g/day limit is official and only our actions challenging the limit are left. Of course, I forgot mobility and only raised 1) Michael Pearces 260g/day impossibility under the cap, 2) Fraudulent surveys for the 1-3g/day average 2) Manson admitted prescribed dosage was 17.7g/day when he cut everyones possession limit to 5g/day. Even though Conroy lost on his mobility card and H.C. may think theyve won, we still have our 3 cards in play. Cant wait to see how they deal with Pearces appeal. [23] I would consequently dismiss the appeal with costs JCT: Ooh, lucky, John Conroy gets more money. and I would allow the cross-appeal without costs. I would remit the matter back to the judge for determination solely on the issue of the scope of the remedy, more particularly with respect to Ms. Beemish and Mr. Hebert, in accordance with these reasons. Richard Boivin J.A. I agree M. Nadon J.A. I agree Wyman W. Webb J.A. JCT: Get that? Back to Manson solely for a remedy to the Left-Outs!!! And theres only one remedy and thats to not leave them out. And Robert and Stephen had asked for the same remedy but couldnt be sent back below for re-hearing because their actions were stayed. So they were just refused with no reasons!! While now the right of Beemish and Hebert is referred back below for remedy! It will put thousands of grows back into legality. And Ive got a Statement of Claim to sue for the losses due to the unconstitutional shut down order! Har har har har har har.
Posted on: Wed, 17 Dec 2014 15:12:51 +0000
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