COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wookey, 2016 ONCA 611

DATE: 20160805

DOCKET: C58019

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Wookey

Appellant

Joseph S. Wilkinson, for the appellant

Kevin Wilson, for the respondent

Heard: February 4, 2016

On appeal from the convictions entered by Justice Leslie A.P. Chapin of the Ontario Court of Justice on July 10, 2013, with reasons reported at 2013 ONCJ 83 and 2013 ONCJ 825.

Tulloch J.A.:

A. Introduction

[1] The main issue in this appeal is whether the general definition of “drug” under the Food and Drugs Act, R.S.C. 1985, c. F-27 (“FDA”), applies to substances that were intended for recreational use, as opposed to medicinal or therapeutic uses.

[2] Between March 2008 and January 2010, the appellant marketed and sold products that contained 1-Benzyl-Piperazine (“BZP”), a substance similar to an amphetamine. During that time period, BZP was not listed under any schedule in the FDA or the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[3] Health Canada repeatedly warned the appellant that it considered BZP to be a drug. It requested that he apply for the necessary licenses and approvals for such a substance. Eventually, the appellant, his company Purepillz Corporation, and his company Pure Principles Inc., were charged with numerous regulatory offences under the FDA and the Food and Drugs Regulations, C.R.C., c. 870. The charges against Pure Principles Inc. were ultimately dismissed.

[4] At trial, the appellant and Purepillz Corporation were convicted of the following: (i) six counts of selling a drug in dosage form for which no drug identification number was assigned, (ii) six counts of selling and advertising a new drug without the manufacturer filing a new drug submission or abbreviated new drug submission and without the Minister of Health issuing to the manufacturer a notice of compliance, (iii) a single count of importing for sale drugs that violate the Act or Regulations; and (iv) a single count of advertising drugs to the general public as a treatment, preventative or cure for addiction. The six-count convictions were based on one count for each of the BZP products sold, which were called Peaq, Freq, Spun, Flow, Rush, and Rush 2.

[5] On appeal, the appellant challenges his convictions and submits that all of the verdicts were unreasonable. He argues that BZP was not a “drug” under the general definition of the term in the FDA because that definition does not apply to recreational substances.

[6] If this court finds that BZP falls under the definition of drug, he seeks to challenge that definition’s constitutionality on the basis that it is overbroad. This constitutional challenge was not raised at trial.

[7] In addition, even if BZP was a drug, he submits that the verdict that it was sold as a preventative for addiction was unsupported by the evidence and thus unreasonable.

[8] At the hearing, the appellant abandoned his argument that BZP could not fall under the new drug provisions of the Regulations.

[9] For the reasons that follow, I conclude that BZP falls under the general definition of “drug” in the FDA. I also conclude that this is not an appropriate case for this court to exercise its discretion to hear a constitutional challenge not raised at trial. Finally, I conclude that the conviction for advertising BZP as a preventative for addiction was supported by the evidence and not based on an unreasonable verdict. Accordingly, I would dismiss the appeal.

B. Issues on appeal

(1) Is BZP a “drug” under the general definition in the FDA?

(a) Overview

[10] Although BZP is now a restricted drug under the schedule in Part J of the FDA, and under Schedule III of the CDSA, no such listing existed during the time period set out in the indictment.

[11] Rather, the appellant’s liability was based on BZP falling under the general definition of “drug” in the FDA.

[12] “Drug” is defined in that Act, as follows:

drug includes any substance or mixture of substances manufactured, sold or represented for use in

(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,

(b) restoring, correcting or modifying organic functions in human beings or animals, or

(c) disinfection in premises in which food is manufactured, prepared or kept. [Emphasis added.][^1]

[13] The appellant was held liable on the basis that BZP was a substance or mixture of substances manufactured, sold or represented for use in modifying organic functions in human beings.[^2]

[14] The trial judge found that BZP modified organic functions in human beings. That finding was well-supported by the expert evidence, and is not challenged on appeal. That expert evidence established the following:

• BZP has an effect on the brain. It is perceived by experienced drug users as having an exciting effect, similar to amphetamine. In drug naive individuals there are also subjective effects such as changes in mood and perception.

• BZP inhibits 3 enzymes in the liver which could have implications for interactions with other drugs.

• BZP elevates the heart rate and blood pressure, increases pupil size and causes flushing of the skin and sweating.

• BZP can cause severe anxiety, panic attacks, hallucinations, and severe headaches in some individuals.

• BZP was found to be a substitute for amphetamine.

• BZP in combination with alcohol in test subjects caused severe adverse reactions such as anxiety, agitation, hallucinations, panic attack and severe headache.

[15] It was also uncontested that BZP was manufactured, sold or represented for use in modifying organic functions in human beings. There was ample evidence that the appellant, through his company’s website, www.purepillz.ca, sold and represented BZP for use in modifying organic functions, in particular for its effect on the brain causing excitement similar to that produced by amphetamines. For example, the www.purepillz.ca website contained the following statements on each of the BZP products that formed the subject-matter of the appellant’s convictions:

Peaq: Intensely Speedy and mildly Euphoric Effect

Peaq is a high level energy pill with moderate but satisfying euphoric effects. Great for parties and clubbing and guaranteed to keep you going hard all night.

Freq: Psychedelic Sensual Stimulation

Freq provides a sensual buzz with more visuals and psychedelic effects as you increase the dosage. Great to just sit back, relax and enjoy the trip.

Spun: Super-Psychedelic Stimulation

Great Psychedelec [sic] effect with a milder speedy feeling. A unique blend of four piperazines, organic compounds known for their “mildly hallucinogenic” and “euphoric” effects.

Flow

Moderate energy boost with a new blend of increased euphoric stimulation.

Rush: E-sensory Stimulation

A higher than average speedy effect with a strong euphoric feeling which becomes psychedelic at higher doses. Gives you an extreme rush and leaves you saying “whoa”. The closest legal experience to MDMA/Ecstasy of any pill on the market.

Rush2

Lower energy boost then [sic] Peaq with a new blend of increased euphoric stimulation.

[16] While this would seem to be conclusive of whether BZP fell under the definition of “drug” in this case, the appellant argues that this is not so. That is because, in his submission, the FDA was never meant to apply to “recreational substances”, but only to substances intended for medicinal or therapeutic uses. The CDSA, he says,is the Act intended to cover substances intended for recreational uses.

[17] In support of his claim, the appellant points out that the definition of “drug” in the FDA, which has more or less remained the same since 1939, originally incorporated the words “modifying organic functions” through the defined term of “medicine”. This, he says, suggests that Parliament intended to restrict the term “modifying organic functions” to medicinal or therapeutic uses.

[18] He also submits that the additions in the 1950s and 1960s of amphetamines, barbiturates, thalidomide, and LSD to the schedules of the since-repealed Parts III and IV of the FDA governing controlled, restricted, and prohibited drugs, provide further evidence that recreational drugs are not covered by the general “drug” definition. If these substances already fell within such a definition, he contends, there would have been no need to specifically list them in schedules to the Act.

[19] Along similar lines, the appellant argues that the enactment of the CDSA,in place of the repealed Narcotic Control Act and Parts III and IV of the FDA, would be redundant if the definition of “drug” is as broad as the trial judge’s interpretation suggests. That is because, absent language limiting that definition to therapeutic or medicinal uses, all of the substances specifically listed in the CDSA would be covered by the FDA. This could not be, he says, because Parliament is not redundant.

[20] Finally, he asserts that if not limited to therapeutic or health uses, the definition of “drug” would be essentially limitless. The appellant says that the Canadian approach to drug control is that substances must be specifically listed in a schedule to prohibit individuals from dealing with them.

[21] I disagree with these submissions.

[22] In my view, based on an application of the modern principle of statutory interpretation, the definition of “drug” in the FDA applies to all substances manufactured, sold, or represented for use in modifying organic functions, regardless of whether the substance is intended for a medicinal, therapeutic, or recreational use. For the following reasons, I would dismiss this ground of appeal.

(b) Analysis

[23] The modern principle of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[24] The starting point for statutory interpretation under the modern principle is to determine the ordinary meaning of the text: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014) at paras. 3.5-3.8 (“Sullivan”).

[25] Ordinary meaning “refers to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context”: Sullivan, at para. 3.9, cited in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 30. Another way of describing ordinary meaning is as “the natural meaning which appears when the provision is simply read through”: Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, at p. 735; Pharmascience Inc. v. Binet, at para. 30; Sullivan, at para. 3.9.

[26] In my view, the natural meaning that appears after reading through the relevant portion of the definition of “drug” under the FDA – particularly the portion that reads “drug includes any substance or mixture of substances manufactured, sold or represented for use in .. modifying organic functions” – does not in any way restrict itself to substances intended for medicinal or therapeutic use. Nor does it preclude the definition’s application to substances intended for recreational uses. It simply provides that a substance or mixture of substances, such as BZP, is a “drug” if it is manufactured for use in modifying organic functions, sold for use in modifying organic functions, or represented for use in modifying organic functions in human beings.

[27] However, the interpretive exercise does not end here. The modern principle indicates that statutory interpretation cannot be founded on ordinary meaning alone, but must be analyzed in context together with the purpose of the legislation, the greater statutory scheme, and the intention of the legislature: Sullivan, at para. 3.7.

[28] The appellant’s submissions, essentially, are that the greater statutory scheme, which includes the CDSA, and the intention of the legislature revealed through the legislative history of regulating drugs, demonstrate that the meaning of “drug” under the FDA should be interpreted restrictively.

[29] Yet, neither the greater statutory scheme, nor the intention of the legislature, either together or individually, provide any reason to depart from the ordinary meaning. Rather, in my view, they reinforce its inclusive interpretation. So, too, does the purpose of the legislation.

[30] First, the legislative history and the relevant Hansard evidence suggest that the intention of the legislature was that the definition of “drug” would extend beyond merely therapeutic or medicinal uses.

[31] As mentioned above, the current definition traces back to the 1939 amendments to the FDA.

[32] Before that time, “drug” was defined as follows in the Food and Drugs Act, R.S.C. 1927, c. C-27, s. 2(c):

“drug” includes all medicine for internal or external use for man or animal, and any substance or mixture of substances intended to be used for the treatment, mitigation or prevention of disease in man or animal.

[33] The 1939 amendment, An Act to amend the Food and Drug Act, S.C. 1939, c. 3, s.1, expanded the definition of “drug” to include cosmetics and disinfectants. It also defined the term medicine as follows:

“medicine” means any substances or mixture of substances that may be used in restoring, correcting or modifying organic functions.

[34] The word “means” indicates that the definition is exhaustive. When a term is defined exhaustively, the definition “completely displace[s] whatever meanings the defined term might otherwise bear in ordinary or technical usage”: Sullivan, at para. 4.34; see also R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 43; Yellow Cab Ltd. v. Alberta (Industrial Relations Board), 1980 CanLII 228 (SCC), [1980] 2 S.C.R. 761, at pp. 768-69.

[35] Far from incorporating a therapeutic sense of the word “medicine” into the definition of “drug” then, as the appellant contends, Parliament specifically overrode the ordinary meaning of “medicine” by statutorily defining the term in this manner.

[36] When the exhaustive definition of “medicine” is incorporated into the definition of “drug” that existed at the time, it would read as follows:

“drug” includes all [substances or mixture of substances that may be used in restoring, correcting or modifying organic functions]; any substance, mixture of substances and any article that may be used for the diagnosis, treatment, mitigation or prevention of disease in man or animal; any cosmetic; any material that may be used for disinfection in premises in which food is manufactured, prepared or kept or for the control of vermin in such premises. [Emphasis added.]

[37] The result is a neutral expression that does not necessarily incorporate a therapeutic or medical sense, but rather focuses on the potential use of the substance or mixture of substances.

[38] The definition of “drug” from the 1939 version of the Act, was then moderately revised in 1953, to become, essentially, the modern version of that definition. The 1953 revision, in the Food and Drugs Act, R.S.C. 1952-53, c. C-38 s. 2(f), provided the following:

“drug” includes any substance or mixture of substances manufactured, sold, or represented for use in:

(i) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in man or animals;

(ii) restoring, correcting, or modifying organic functions in man or animals; or

(iii) disinfection in premises in which food is manufactured, prepared or kept.

[39] The responsible Minister’s introductory statement for the bill that resulted in the 1939 amendment further confirms that it was meant to expand the scope of the definition of “drug”. The Hon. C.G. Power, Minister of Pensions and National Health, explained the bill’s objective, as follows in the House of Commons Debates, 18th Parl., 4th Sess., Vol. 1 (26 January 1939) at pp. 331-32:

The object of this bill is to amend the Food and Drugs Act, to broaden its scope and clarify certain features with a view to increasing its usefulness.

It is the intention to extend the definition of drugs to include certain substances for which no medicinal claims are made but which may be injurious to human health.

[40] I note that the appellant claims that the trial judge erred in relying on this evidence. He says that, given the absence of the term “medicine” from the current version, this statement of intention cannot offer interpretive value. He also submits that the context and structure of the FDA was far different then.

[41] I disagree. It is well-established that such statements may be relied on as evidence of legislative purpose: see e.g. Canadian National Railway Co. v. Canada (A.G.), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 47. And, as explained above, the use of the word “medicine” when exhaustively defined had no impact itself. In any event, I fail to see how the absence of the word “medicine” from later versions supports the appellant or meaningfully distinguishes the Minister’s statement. The statement of intention here, in my view, provides cogent evidence of legislative purpose.

[42] Second, the greater statutory context and its legislative history do not support the appellant’s restrictive interpretation.

[43] Contrary to what the appellant submits, the CDSA is not redundant. Nor was the addition of certain substances to schedules of the FDA redundant if the general definition of “drug” already applied to them. By listing substances in the schedules to the CDSA or in the former Parts III and IV of the FDA, Parliament simply provides for differential, more restrictive and punitive treatment of known, dangerous substances such as amphetamines and LSD, compared to unknown substances and substances such as acetaminophen, energy drinks and herbal medicines.

[44] As Laskin C.J.C. explained in R. v. Wetmore, 1983 CanLII 29 (SCC), [1983] 2 S.C.R. 284, at p. 288, the provisions of the since-repealed Part III of the FDA concerning controlled drugs served a different objective than the rest of the Act. While the other parts of the Act, to which the general definition would apply, were aimed at promoting the physical health and safety of the public and proper marketing of food and drug products, the controlled drug provisions were aimed at protecting the moral health of the public.

[45] Finally, the purpose of the Act supports an inclusive, rather than restrictive interpretation of the definition of “drug”. Courts have consistently interpreted the FDA as being “principally concerned with the protection of public health and public safety in relation to food and drug products”: Saputo Inc. v. Canada (A.G.), 2011 FCA 69, 414 N.R. 45, at para. 71; see also R. v. Wetmore; Jamieson & Co. (Dominion) v. Canada (A.G.), 1987 CanLII 5359 (FC), [1988] 1 F.C. 590 (T.D.), at pp. 614, 623.

[46] Restricting the application of “drug” under the FDA to substances intended for medicinal or therapeutic uses, or to those substances listed in schedules to the Act, would thwart, and not serve this purpose. It would remove the onus from manufacturers and vendors to demonstrate the safety of their product before selling or marketing to the public. Instead, it would leave the public vulnerable to any newly-developed recreational drug until the risk such a drug presents is brought to the state’s attention, at which time the state would have to formulate and enact an actual criminal prohibition.

[47] I note that the appellant argues that the trial judge erred by relying on evidence of civil servants to come to her conclusion on the purpose of the Act. While in her reasons she states that she had accepted a civil servant’s evidence on the Act’s purpose, she only did so after holding that it was “abundantly clear that the Food and Drugs Act is public welfare legislation designed to protect Canadians by enforcing certain standards and regulations regarding foods, drugs, devices, etc.”, based on her own review of the Act. In any event, I agree with her interpretation of legislative purpose, which accords with how the purpose of that Act has been consistently interpreted. The trial judge did not otherwise err or abdicate her responsibility by noting Health Canada’s view that BZP was a drug or that two prior applications for a Drug Identification Number had been refused, as the appellant claims she did.

[48] I also disagree that, without requiring that recreational substances be specifically listed in a schedule or limiting the definition of “drug” to medicinal or therapeutic uses, the interpretation leads to the absurd result of being virtually limitless. The definition is broad, but that would simply seem to be responsive to the endlessly variable nature of the subject-matter being regulated and the need to protect the public from the dangers presented by substances that are offered for correcting, restoring or modifying organic functions. The breadth of this interpretation does not lead me to question whether Parliament intended for it to be restricted to medicinal or therapeutic substances.

[49] Nor is there any merit to the appellant’s submission that the Canadian approach is only to prohibit or regulate those substances that have been specifically listed. This argument lacks evidential support and simply begs the question.

[50] In my view, had Parliament intended to restrict the application of the term “drug” to therapeutic and medicinal uses, or required that specific substances be listed in schedules to the Act, it could easily have said so in the legislative text. Instead, the appellant suggests that this intention was manifested through subtle hints over decades of amendments to this Act and through the enactment of the CDSA. I do not agree. The purpose of the legislation, the evidence of legislative intent, and the greater statutory scheme all support the ordinary meaning of the text, which does not exclude recreational substances as “drugs”.

[51] Thus, the BZP that the appellant sold and represented for use in modifying organic functions falls under the definition of “drug” in the FDA.

[52] Accordingly, I would dismiss this ground of appeal.

(2) Is the definition of “drug” an unjustifiable limit of s. 7 of the Canadian Charter of Rights and Freedoms?

[53] In the event that BZP is found to fall under the general definition of “drug” under the FDA, the appellant asks this court to strike or read down that definition under s. 52 of the Constitution Act, 1982. That is because, he submits, the potential imprisonment that flows from provisions based on this definition presents an unjustifiable limit on liberty that is contrary to the principles of fundamental justice under s. 7 of the Charter.

[54] The appellant’s main argument is that the definition is overbroad because it could extend to placebos that, despite having no capability of modifying organic functions, are represented to the public for use in doing so.

[55] The appellant raises this constitutional challenge for the first time on appeal.

[56] As the Supreme Court recently explained in Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-22, while appellate courts can hear and decide new issues not raised at trial, whether or not to do so is a matter for the court’s discretion. This discretion is exceptional; it should not be exercised routinely or lightly. When determining whether to exercise its discretion, a court should take into account all of the circumstances, including the following:

• the state of the record,

• fairness to all parties,

• the importance of having the issue resolved by the court,

• its suitability for decision, and

• the broader interests of the administration of justice.

[57] The court should not exercise its discretion unless convinced that doing so would cause no prejudice to the parties or that failing to do so would risk injustice: Guindon, at paras. 22-23; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33.

[58] The appellant argues that this court should exercise its discretion in this case because, in his submission, essentially the same arguments were made under the heading of statutory interpretation at trial. He claims that this is really just a variation of his argument that an interpretation of “drug” that was not limited to medicinal or therapeutic uses would be virtually limitless.

[59] In my view, after considering all of the circumstances, this is not an appropriate case for the court to exercise its discretion to decide this issue raised on appeal. The appellant has made no submissions on why it is important to have this issue about a long-existing definition resolved by this court now. Nor has he presented any argument that failing to do so would risk injustice, except perhaps to others such as vendors of placebos who represent their product for use in modifying organic functions. There is no question that the legislation achieves its purpose by regulating harmful substances such as BZP.

[60] Nor is the record ideal for determining this issue. I note that despite its importance to the appellant’s argument, there is no evidence addressing whether representing placebos for use in modifying organic functions does or does not endanger public health or safety. And the appellant has not sought to adduce any fresh evidence for the determination of this constitutional issue.

[61] Arguing the interpretation of a statute is much different than arguing its constitutional validity. The record below was tailored to prove that BZP, a recreational substance similar to an amphetamine, fell within the definition of “drug”. The evidence led by the Crown was, understandably, not focussed on exploring whether the interpretation would extend to certain substances for which there would be no connection to the legislation’s purpose. Nor did it focus on whether any lack of connection could be justified. The fact that the appellant made submissions that the breadth of the provision may be virtually limitless is no substitute for a timely notice of constitutional question and a properly developed record.

[62] Accordingly, I will not address the constitutional issue.

(3) Was it unreasonable to find that BZP was marketed as a preventative for addiction?

[63] The trial judge found that the appellant advertised BZP to the general public as a preventative for addiction contrary to s. 3(1) of the FDA.

[64] That finding was based on the following statement from the appellant’s website:

More importantly, in the absence of abstinence, it is imperative that individuals are given a choice to use safer alternatives, rather than their more harmful counterparts. All of our products are of the highest quality and have been specifically designed to have a significantly reduced potential for harm and addiction.

[65] The appellant challenges this verdict as unreasonable. In support, he relies on an agreed statement of fact that states the following:

The products sold on www.purepillz.ca were represented for recreational purposes – this was the general and overarching theme of the website’s claims in relation to the products that form the substance of these charges. The specific claims of the site’s individual product descriptions (of the products that form the substance of these charges) were recreational in nature only.

[66] According to the appellant, the isolated reference to addiction relied upon by the trial judge cannot amount to evidence BZP was advertised as a treatment, preventative, or cure for addiction. It cannot be, he says, that the very thing that is the potential target of addiction (BZP in this case, he submits), can also be the treatment, prevention or cure for itself.

[67] I disagree. BZP was advertised as preventing addiction to other more harmful substances. The website statement says that individuals should be given a safer alternative to more harmful counterparts, and then goes on to market that BZP has been designed to have a significantly reduced potential for addiction. This statement implies that by using BZP instead of a more harmful alternative, an individual will have a reduced potential to develop an addiction. In other words, by taking BZP instead of that more harmful counterpart, an individual could prevent developing an addiction.

[68] The statement falls squarely within the offence set out in s. 3. The trial judge’s verdict is not unreasonable.

[69] And such a verdict was not precluded in any way by the agreed statement of fact referred to above. The fact that the general, overarching theme of the website’s claims was recreational does not foreclose that there were also more specific claims that the products could prevent addiction. Nor does the fact that the specific claims that particular BZP products were recreational in nature only (those products being Peaq, Freq, Spun, Flow, Rush, Rush 2, Flow – whose claims are reproduced above) negate that there was a claim that the general product prevented addiction.

C. DISPOSITION

[70] For these reasons, I would dismiss the appeal.

Released: “EEG” AUG 5 2016

“M. Tulloch J.A.”

“I agree. E.E. Gillese J.A.”

"I agree. David Watt J.A."

[^1]: The French version of the text reads as follows:

drogue Sont compris parmi les drogues les substances ou mélanges de substances fabriqués, vendus ou présentés comme pouvant servir :

a) au diagnostic, au traitement, à l’atténuation ou à la prévention d’une maladie, d’un désordre, d’un état physique anormal ou de leurs symptômes, chez l’être humain ou les animaux;

b) à la restauration, à la correction ou à la modification des fonctions organiques chez l’être humain ou les animaux;

c) à la désinfection des locaux où des aliments sont gardés.

[^2]: I note that, given the trial judge’s finding that the appellant marketed BZP as a preventative, it may be that BZP would also be a drug under paragraph (a). However, as this was not argued at trial or on appeal, and given my conclusion that BZP was a drug under paragraph (b), I will not consider this further.