Court File No

Court File No. T-1832-00 FEDERAL COURT - TRIAL DIVISION BETWEEN The Applicant: Jean Charles Pariseau AND The Respondent: Attorney General of Canada --------------------------------------- RESPONDENT'S MEMORANDUM OF FACT AND LAW --------------------------------------- PART I - FACTS: =============== A) Overview 1. Mr. Pariseau suffers from serious illnesses requiring him to take forty-eight pills every day. According to his doctor, Dr. Kilby, smoking marijuana helps Mr. Pariseau ingest, digest and absorb his medication. 2. The Controlled Drugs and Substances Act (the "Act") renders illegal, among other things, the possession, cultivation and importation of marijuana. The Act allows the Minister of Health to exempt certain persons from the application of those portions of the law that create the offences. 3. Dr. Kilby recommended to the Minister that Mr. Pariseau be allowed to possess and grow marijuana. The Minister acceded to this request. On Jun 9, 1999, his duly appointed official issued an exemption to Mr. Pariseau, for a year. On June 9, 2000, the exemption was renewed until December 9, 2000. 4. Mr. Pariseau does not agree with some of the conditions contained in his renewed letter of exemption. This case constitutes his challenge to those conditions. 5. The Court's intervention in this case is not warranted. The Respondent submits that: (1) the issue is now moot, the second letter of exemption having expired as of December 9 2000; (2) the second letter of exemption imposes conditions authorized by statute. B) The application for judicial review 6. In September 1999, Mr. Pariseau commenced the present application for judicial review. Applicant's record of application, p. 1-2 (Notice of Application 7. The application was clearly out of time. The Respondent did not object to the extension of time. The Court granted the extension of time. Applicant's record of application, p. 21 (Order, Denault J. 29 Sep 00) 8. Mr. Pariseau asks the Court to modify his second letter of exemption in three ways. First, he wishes the conditions of the first letter of exemption restored. Second Mr. Pariseau wants to Court to grant him a permanent exemption. Third, he asks the court to authorize someone else to grow the marijuana in his stead or to allow him to import marijuana from a legal source. Applicant's record of application, p.6 (Affidavit) Applicant's record of application ,p.30-31 (Applicant's Memorandum of Fact and Law) C) Mr. Pariseau applies for an exemption allowing him to use cannabis for therapeutic purposes 9. Mr. Pariseau was one of the first people to request an exemption, for medical purpose, from the application of the Act. Dr. Kilby indicated that Mr. Pariseau required "0.5 grams qid prn" meaning that 0.5 grams should be administered four times a day, as required by the patient. Mr. Pariseau's recorded requirements thus amounted to two grams of inhalable marijuana per day Respondent's record, p.7-9 para. 23(1) and(4) and 25 (Affidavit of C. Langlois) Respondent's record, p.270, Exhibit "5" (Letter from D. Kilby to Special Access Programme, 13 Oct 98) 10. After creating the review process required to consider these applications, the duly appointed official granted Mr. Pariseau his first exemption. The exemption remained valid until June 9, 2000. Respondent's record, p.34 and 6-9, para. 8-13 and 23-25 (Affidavit of C. Langlois) Respondent's record, p.304-308, Exhibit "5" (Letter from D.M. Michols to J.C. Pariseau, 9 jun 99) 11. In May 2000, officials contacted Mr. Pariseau to ascertain whether he required a renewal of his exemption. In the affirmative, his doctor had to answer four questions. To the question "Y-a-t-il des changements quant a l'information fournie dans la demande initiale?", his doctor answered "non". Respondent record, p.310, Exhibit "6" (Letter from C. Bouchard to J.C. Pariseau, 17 May 00) Respondent record, p.311, Exhibit "6" Renouvellement d'exemption pour monsieur Jean-Charles Pariseau, 00 May 00) 12. Based upon this information, the exemption was renewed on June 9 2000. It expired on December 9 2000. Respondent's record, p.4-5 and 9-10, para 16 and 27-30 (Affidavit of C. Langlois) Respondent's record, p.313-319, Exhibit "6" (Letter from D.M. Michols to J.C. Pariseau, 9 Jun 00) 13. On October 27, 2000, Mr. Pariseau was invited to apply for a further renewal of his exemption and to discuss his concerns. Respondent's record, p.16, para.37-38 (Affidavit of C. Langlois) Respondent's record, p328-331, Exhibit "8" (Letter from S. Desjardins to J.C. Pariseau) D) Developments 14. On July 31, 2000, the Court of Appeal for Ontario issued two decisions dealing with the possession of marijuana. It first confirmed the validity of the prohibition of possession of marijuana for recreational use. It then decided that, by failing to allow for the possession of marijuana required for medical use, the Act infringed s.7 of the Charter. Accordingly, the Court declared the prohibition on the possession of marijuana in the Act to be of no force or effect but suspended the declaration of invalidity for one year. R. Clay (2000), 49 O.R. (3d)577(C.A.) R. v. Parker (2000), 49 O.R. (3d)481(C.A.) 15. Prompted by these decisions, the government announced that, by July 31, 2001, it would adopt a new regulatory approach to the use of marijuana for medicinal purposes. The new regulation will define the circumstances and the matter in which the use of marijuana for medical purposes will be authorized. As stated by the Minister of Health, the intent of the government is to "... mieux expliquer le processus pour le benefice des Canadiens et des Canadiennes qui envisagent consommer cette drogue pour attenuer certains symptomes. Ces personnes aux prises avec la douleur et eprouvees par la souffrance ont besoin d'un processus mieux defini." Respondent's record, p.5-6 para. 18-19 (Affidavit of C. Langlois) Respondent's record, p.256-257, Exhibit "3" (Communique) PART II - QUESTIONS IN ISSUE 16. The Respondent submits that, on the facts of this case, the following questions are in issue: a) Is the issue raised by this application moot? b) Are the conditions contained in the second letter of exemption authorized by section 56 of the Controlled Drugs and Substances Act? PART III - ARGUMENTS 17. The issue raised by the application is moot. Further, the statute authorizes the conditions of the second exemption. They also accord with the information provided by Mr. Pariseau as to his needs. A) The issue is moot 18. The second exemption expired on December 9 2000. Further, a new regulatory approach will be in place by July 31 2001. 19. The June 9 2000 letter of exemption expired on December 9 2000. Given his condition, it is fair to assume that Mr. Pariseau will apply for a renewal of the exemption, if he has not done so already. Accordingly, he will probably argue against mootness, on the basis that there remains a concrete dispute between the parties. Factually and legally, this is not correct. 20. There is no information on the record to establish: (1) what information Mr. Pariseau would have provided to substantiate his application for a renewal; (2) whether the exemption was renewed; and (3) under what conditions it would have been. Neither should there be: Mr. Pariseau can challenge only one decision in this application; however, the decision under review is no longer effective. Federal Court Rules, 1998, SOR/98-106, r.302 Mahmood v. Canada (1998), 154 F.T.R. 103, para 8-12 (T.D.) 21. In these circumstances, the application is no longer based upon a concrete dispute. Mr. Pariseau's complaints regarding the June 9 2000 letter of exemption are now moot. The Court must decide whether to exercise its discretion and allow the case to proceed nonetheless. Borowski v. A.G. Canada (1989) 1 S.C.R.342 at 357-363 per Sopinka J. 22. There are no reasons justifying the Court to exercise its discretion, particularly because of the pending adoption of a new regulatory approach. Given this imminent legislative change, the application does not raise an issue of public importance the resolution of which would be in the public interest Borowski v. A.G. Canada (1989) 1 S.C.R.342 at 357-363 per Sopinka J. 23. Further, to the extent Mr. Pariseau remains unsatisfied about the conditions of the hypothetical third exemption, he should first raise his complaints with the Minister. The Minister is in the best position to appreciate Mr. Pariseau's concerns and provide the appropriate relief. Because an adequate alternative remedy exists, the Court should refuse to issue relief to Mr. Pariseau. C.P. Ltd. v. Matsqui Indian Band (1995) 1 S.C.R. 3 B) The conditions are authorized 24. Section 56 of the Controlled Drugs and Substances Act provides that The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of this Act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Controlled Drugs and Substances Act, S.C. 1996, C.19, s.56 25. The Minister exempted Mr. Pariseau from only the application of the provisions prohibiting him from possessing and producing marijuana. He has deemed it necessary to impose upon Mr. Pariseau a set of conditions. They represent the most appropriate compromise between the desire of the Minister to provide relief to Mr. Pariseau on compassionate grounds and his duty to uphold the overarching government policy prohibiting marijuana to protect the health of Canadians and Canadian society from its harmful effects. Respondent's record, p.6 and 9-15, para. 22,29 and 31, (Affidavit of C. Langlois) 26. The conditions allowed Mr. Pariseau to get access to the quantity of marijuana his own doctor recommended. They also safeguarded against the ever-present possibility of diversion to illegal use. Lastly, they could be adjusted to reflect changing circumstances. i) The quantity 27. Mr. Pariseau erroneously complains that the second exemption somehow reduces the quantity of marijuana he was allowed to possess and produce. In fact, the second exemption merely quantifies what the first exemption granted. Applicant's record of application, p.26-29, para. 26--38 (Applicant's memorandum of fact and law) 28. Dr. Kilby originally recommended that his patient consume "0.5 grams qid prn". This represents a maximum of 2 grams per day. Dr. Kilby confirmed his recommendation for the second exemption. Respondent's record, p.7-9,para.23(1) and (4)and 25 (Affidavit of C. Langlois) Respondent's record, p.270, Exhibit "5" (Letter from D. Kilby to Special Access Programme, 13 Oct 98) Respondent's record, p.311, Exhibit "6" (Renouvellement d'exemption pour monsieur Jean-Charles Pariseau) 29. The first letter limited the scope of the exemption by reference to what "is necessary to satisfy your ongoing personal treatment needs." Given the advice of Dr. Kilby, this represented a maximum of 2 grams per day. Respondent's record, p.305, Exhibit "5" (Letter from D.M. Michols to J.C. Pariseau, 9 Jun 99) 30. The second letter specifically quantified the amount of marijuana that the exemption permitted Mr. Pariseau to possess; 90 grams of usable marijuana,3 mature and 4 immature plantes. Based on the information available to the Minister, the 45-day supply Mr. Pariseau could create could be replenished by his plants within a month. Respondent's record, p.315, Exhibit "6" (Letter from D.M. Michols to J.C. Pariseau, 9 Jun 00) Respondent's record, p.11-12,para.31(2) (Affidavit of C. Langlois) 31. In reality, Mr. Pariseau seeks an increase in the quantity authorized. If his needs and circumstances have changed, his recourse is to request that the Minister modify his exemption. ii) Duration of exemption 32. Mr. Pariseau complains that the duration of his exemption was shortened from 12 months to 6 months. Further, he suggests that he should be granted a permanent exemption and renewal requirements should not be applied to him. Applicant's record of application, p.29, para.89-41 (Applicant's memorandum of fact and law) 33. The Minister properly exercised his discretion. He must ensure that the exercise of his discretion to exempt for medical reasons does not subvert the overarching objective of the Act. Respondent's record, p.14-15, para.31(4) and 32 (Affidavit of C. Langlois) 34. Mr. Pariseau does not challenge the validity of the Minister's concerns. He simply feels entitled to a different regime. Here again, his recourse was to request that the Minister modify his exemption. iii) Experimental testing 35. Mr. Pariseau fears being coerced into participating in clinical research. Applicant's record of application, p.29 para.42, (Applicant's memorandum of fact and law) 36. This fear is unfounded. The uncontroverted evidence from the Respondent is that Mr. Pariseau would participate only if he agreed and only if he meets the profile adopted in the research protocol. Respondent's record, p.13-14, para. 31(3) (Affidavit of C. Langlois) I) Renewal procedure 37. Mr. Pariseau makes a number of suggestions aimed at improving the procedure used by the Minister to renew his exemption. Applicant's record of application, p.29, para. 43 (Applicant's memorandum of fact and law) 38. These suggestions are worthwhile. But they do not transform the renewal procedure discussed in the second letter of exemption into an improper condition. Here again, his recourse was to request that the Minister modify his exemption. v) Minister's discretion 39. From the point of view of administrative law, the sole issue is whether the Minister properly exercised the discretion granted to him by s.56 of the Act. Federal Court Act, R.S.C. 1985, c. F-7, s.18.1(4) 40. The argument of Mr. Pariseau is based on a challenge to the constitutional validity of s.56 of the Act. This case does not raise such a challenge. 41. A proper discussion of the important and difficult issues raised by exempting the therapeutic use of marijuana from the general prohibition requires an informed debate amongst interested parties. Mr. Pariseau has failed to abide by the mandatory procedural safeguards by not serving all of the attorneys-general with a notice of constitutional question. Consequently, the Court is without jurisdiction to entertain a debate on the constitutional validity of the Minister's power to impose conditions on exemptions he grants pursuant to s.56 of the Act. Federal Court Act, R.S.C. 1985 C. F-7 s.57(1) Eaton C. Brant (County) Board of Education [1997] 1 S.C.R. 241 para. 53, Sopinka J. Reference re Remuneration of Judges of Provincial Courts [1997] 3 S.C.R. 3 para.263-264 Lamer C.J. 42. Mr. Pariseau was not a party to the decision he relies on. Furthermore, the Court of Appeal suspended the declaration of constitutional invalidity until July 31 2001. Lastly, neither of Mr. Pariseau's right to life nor to security of the person are engaged by the Minister's exercise of discretion: the Minister allowed Mr. Pariseau to lawfully possess the quantity of marijuana recommended by Dr. Kilby. R. v. Parker (2000) 49 O.R. (3d) 481 (C.A.) 43. Mr. Pariseau wishes to import marijuana from a legal source outside Canada. Applicant's record of application, p.30 para.45-47 (Applicant's memorandum of fact and law) 44. At present,the importation of marijuana into Canada to serve as a source of supply for therapeutic purposes is not possible. The relief sought is impossible. Respondent's record, p.6 and 15-16 para.21 and 34-35 (Affidavit of C. Langlois) Respondent's record, p.29-36, Exhibit "1" para.45-71 (Affidavit of D. Michols) 45. Mr. Pariseau recognizes this factual impossibility. In effect, he seeks a declaration that, should a legal source of marijuana be identified, the exemption should permit him to utilize that source. This part of the application is premature. Applicant's record of application, p.30 para.47 (Applicant's memorandum of fact and law) vii) Production by others 46. Mr. Pariseau suggests he should be allowed to delegate the production of his marijuana to someone else. Applicant's record of application, p.31 para.53 (Applicant's memorandum of fact and law) 47. Nothing supports this suggestion. The Minister never decided this question because Mr. Pariseau never raised it. There is no decision for the Court to review. Federal Court Act, R.S.C. 1985, c. F-7, s.18.1 48. Mr. Pariseau's doctor does not support this suggestion. He advised "... that the safest supply available to him would be his own home grown marijuana, but that when we are able to provide a safe standardized supply through licence growing in Canada or from imported legal sources outside Canada, that we have access for compassionate reasons to that supply at a dose of 0.5mg quid." Respondent's record, p.295 Exhibit "5" (Letter from D. Kilby to C. Bouchard, 7 Jun 99) 49. Dr. Kilby explained that "I hope like many that its [marijuana] use will be controlled or licenced [sic] so that we can avoid the free access to not only a mood altering drug but one that if not produced in a way that assures its safety, many [sic] cause more harm than good when used by the immunosuppressed." Respondent's record, p.272 Exhibit "5" (Letter from D. Kilby to The Hon. A. Rock, 14 Oct 98) PART IV - RELIEF SOUGHT 50. That this application be dismissed without costs. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Ottawa, this 16th day of January 2001. Of counsel to the Respondent Alain Prefontaine, Catherine Lawrence.