Date: 20040625
Docket: T-450-01
Citation: 2004 FC 919
Ottawa, Ontario, June 25, 2004
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
JOHNNY DUPUIS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review seeking a constitutional exemption based on section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the "Charter"), or in the alternative, asking that Health Canada process the applicant's application under section 56 of the Controlled Drugs and Substances Act, 1996, c. 19 (the Act) without requiring that he provide a report from a psychiatrist.
[2] The applicant has suffered from post-traumatic stress disorder (PTS) since he fell victim to a criminal act in 1977. On July 29, 2000, Health Canada received an application from him for an exemption under section 56 of the Act, authorizing him to possess marijuana for medical purposes.
[3] In a letter dated September 18, 2000, Health Canada requested that the applicant obtain a report from a psychiatrist and give details regarding the different treatments that he had already tried and those that he was using at that time.
[4] On January 23, 2001, the applicant's attending physician, Dr. Boucher, wrote to Health Canada that "[TRANSLATION] since he began using marijuana [the applicant] says that he is very relieved and accepts the risks inherent to marijuana use".
[5] In a letter dated May 1, 2001, Health Canada informed the applicant that it intended to refuse his application unless he consulted a psychiatrist about this treatment.
[6] On May 10, 2001, Dr. Boucher sent a second letter to Health Canada, certifying that the applicant was reluctant to take any medication to treat his chronic stress.
[7] On October 31, 2001, Health Canada informed the applicant that if he wanted Health Canada to continue with the review of his application, he would have to obtain a psychiatrist's report indicating that the conventional treatments had, at least, been considered and found to be medically inappropriate for him and that his condition was so serious that access to marijuana would be justified and necessary to his treatment, failing which his application would be refused.
[8] In a letter dated February 7, 2002, Health Canada advised the applicant that his application had been refused because of his failure to provide the required report. Hence, this application for judicial review.
[9] The applicant submits that Health Canada violated his rights guaranteed by section 7 of the Charter, which reads as follows:
| Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. |
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Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale. |
|
|
|
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ANALYSIS
[10] In light of his amended notice of judicial review, the applicant is seeking a constitutional exemption based on section 7 of the Charter, like the exemption that was allowed by the Court of Appeal for Ontario in Regina v. Parker (2000), 49 O.R. (3d) 481. In that case, the Court declared the marijuana prohibition in section 4 of the Act to be invalid in the case of Mr. Parker, an epileptic. On the evidence that was submitted to it, the Court held that, in Mr. Parker's case, the exemption process under section 56 of the Act did not remedy the invalidity of section 4 of the Act.
[11] In short, the Court determined that the marijuana prohibition violated Mr. Parker's right to security of the person because it interfered with his physical and psychological integrity, since Mr. Parker had to choose between committing a crime to obtain effective treatment for his condition or not receiving the treatment.
[12] The Court therefore granted Mr. Parker a constitutional exemption from the possession of marijuana prohibition under section 4 of the Act, for medical purposes.
[13] In my opinion, the findings in that case do not apply to the case at bar because these facts differ significantly from those in Parker. First, Mr. Parker had been charged criminally with cultivating and possessing marijuana in his house. Second, Mr. Parker had established to the Court's satisfaction that marijuana was necessary for the treatment of his epilepsy, a serious condition that caused him seizures that were so severe that they could even put his life in danger.
[14] To this end, he had submitted considerable evidence in support of his claim that marijuana was effective in treating his epilepsy. Further, he had explained in detail his trial with the drug and had noted its effects in a journal over a six-month period, a period during which he had also kept his physician apprised of the decrease in the number and severity of his epileptic seizures. Following this trial, his physician even recommended to Mr. Parker that he continue to use marijuana in addition to his medication. His physician had also submitted to the Court a report in which he concluded that the use of marijuana was necessary for Mr. Parker to control his epileptic seizures.
[15] To be entitled to a constitutional exemption, the applicant has the burden of establishing, as Mr. Parker did, that he has a constitutional right to use marijuana, which he did not do in this case. The medical evidence submitted by the applicant does not support a finding that the use of marijuana is reasonably required for the treatment of the applicant's medical condition.
[16] In his letter to Health Canada dated January 23, 2001, Dr. Boucher writes:
[TRANSLATION]
Since [the applicant] began using marijuana, he says that he is very relieved and accepts the risks inherent to marijuana use. I can only observe that it seems to be working well. [Emphasis added].
[17] In my view, this is not persuasive evidence that the applicant requires the medical use of marijuana to treat his PTS. In light of the evidence in the record, I consider that this treatment appears to be the choice of the applicant, who does not want to return to psychotherapy. Further, this treatment was never prescribed by his attending physician, who is a general practitioner and not a specialist in the treatment of symptoms relating to chronic stress.
[18] Moreover, the respondent filed with the Court the affidavit of Dr. Marvin Lange, the psychiatrist of the Royal Victoria hospital, who stated that marijuana use is not a recognized treatment for PTS symptoms. At paragraphs 17 et seq. of his affidavit, Dr. Lange writes:
17. Inhaling the smoke of marijuana is NOT a recognized treatment for the symptoms of PTSD [post-traumatic stress disorder] or any other anxiety disorder, including chronic stress. Studies have shown that persons who use marijuana have a significant incidence of experiencing panic attacks or anxiety (about 20%) and that in chronic users of marijuana there is a significant risk of anxiety, depression, or paranoia. [...]
18. Marijuana may give some very temporary relief of anxiety but then the usual experienced symptoms recur.
19. For these reasons, persons who have any anxiety disorder, including PTSD, are strongly discouraged from the use of marijuana.
20. A search of the medical literature does not reveal any controlled clinical trials that have shown that marijuana is of any value as a treatment for PTSD or any other Anxiety Disorder.
[19] Thus, the medical evidence from a specialized physician establishes the opposite, i.e. that a person suffering from PTS should not use marijuana.
[20] Further, it appears from the evidence that the applicant has other treatments - effective and legal - available to him. It was stated on the application for exemption that the applicant's condition had stabilized following psychotherapy. The applicant is therefore not in a situation where the only effective available treatment is marijuana.
[21] To summarize, the applicant has failed to establish that the use of marijuana was reasonably required for the treatment of the applicant's medical condition.
[22] I must find that the applicant did not establish that his right to life, liberty or security had been violated by Health Canada's decision to refuse him the exemption under section 56 of the Act.
[23] In the alternative, the applicant is seeking an order from the Court dispensing him from providing a psychiatric evaluation as had been required by Health Canada to continue the review of his application.
[24] The Court cannot acquiesce to such a request since the applicant did not show this Court that the respondent's decision was patently unreasonable. In view of the information contained in Dr. Lange's affidavit regarding the ineffectiveness of marijuana as a treatment for PTS, I am of the opinion that the Minister exercised his discretion reasonably in requiring a psychiatrist's report indicating that the conventional treatments were at least considered and found to be medically inappropriate for the applicant and that the applicant's condition is so serious that access to marijuana would be justified and even necessary for his treatment.
[25] For these reasons, the application for judicial review is dismissed. Without costs.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. Without costs.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-450-01
STYLE OF CAUSE: JOHNNY DUPUIS v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 21, 2004
REASONS FOR ORDER
AND ORDER BY: Madam Justice Danièle Tremblay-Lamer
DATE OF REASONS: June 25, 2004
APPEARANCES:
Michel Moreau FOR THE APPLICANT
Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Moreau FOR THE APPLICANT
Gatineau, Québec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario