Date: 20010827
Docket: T-1373-01
Neutral Citation: 2001 FCT 943
BETWEEN:
MARYLYNNE CHAMNEY
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
[1] This is a motion for an order of mandamus compelling the respondent to perform its duty to grant access to the applicant's prescribed medication and a motion to declare the new section 56 regulations unconstitutional.
[2] First of all, the applicant is representing herself and she is not very familiar with the Federal Court Act or the Federal Court Rules.
[3] I should also mention that it is obvious that someone else, not clearly identified, has helped the applicant write this motion and, as I mentioned verbally at the hearing, this work was done by someone who is not a lawyer and some inaccurate information that was given to the applicant and to other applicants in similar cases was not very helpful to her nor to the Court. Those documents were probably prepared in good faith but the preparation of those complex files needs more than good faith, and I cannot say more than that the applicant should get help from a lawyer.
[4] I have carefully reviewed the documents provided by the applicant.
[5] She makes the request that the Court orders the respondent, Minister of Health, to grant her an interim section 56 exemption.
[6] I have read different letters of correspondence between the applicant and the department of Health and also between her doctors and the department of Health, and my understanding, is that there is not yet a final response to her request for a section 56 exemption.
[7] I understand how it could be frustrating for the applicant to see the department's officials and her doctors not being able to reach an agreement.
[8] Nevertheless, in the recent decision Neron v. Canada (Attorney General) [2001] F.C.J. No. 1010, FCT 683, Mr. Justice Teitelbaum said:
I am satisfied that even if I were to have sufficient evidence before me that would enable me to grant the interim order requested, Rule 372 is meant to safeguard an applicant's right in the case of an urgency and pending disposition of proceedings.
The issue before me is not a preservation of a right. The applicant will not lose any right if I do not grant the interim order he now requests. It simply means, and I do not minimize the seriousness of his request, that the applicant would have to proceed with an application for judicial review by serving and filing such an application with supporting affidavits from himself and from his doctor or doctors, if that is his desire, and then make a request pursuant to section 18(2) of the Act, again with the necessary evidence.
[9] Therefore, I have no other option than to dismiss this motion for a mandamus.
[10] The applicant has also brought a short notice motion for a declaration that the new section 56 regulations does not comply with the ruling of the Ontario Court of Appeal in Parker, dated July 31, 2000 and that the law prohibiting marijuana is hereby deemed unconstitutional as of August 1, 2001.
[11] Section 57(1) and (2) reads:
| 57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2). (2) Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued. |
57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2). (2) L'avis est, sauf ordonnance contraire de la Cour ou de l'office fédéral en cause, signifié au moins dix jours avant la date à laquelle la question constitutionnelle qui en fait l'objet doit être débattue. |
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[12] I have explained to the applicant that when the validity of an act of Parliament or of regulations thereunder is in question before the Court, the applicant has to give a special notice pursuant to section 57 of the Federal Court Act.
[13] The applicant was not aware of that particular section of the Act and I have explained carefully to the applicant that this motion was premature and that also, the applicant wants to challenge the validity of the new regulations in force since August 1, 2001 when her application was made under the former regulations and that the decision is not yet made.
[14] For all these reasons this motion for declaration by the applicant is adjourned sine die.
Pierre Blais
Judge
MONTREAL, QUEBEC
August 27, 2001