Court File and Parties

Court File No.: CR-25-00000060-00MO Date: 2025-12-24 Ontario Superior Court of Justice

Between: BIE Health Products – and – His Majesty the King

Counsel: P. Starkman, for BIE Health Products M. Toolsie, for the Crown

Heard: 28 October 2025

S.A.Q. Akhtar J.

Factual Background and Overview

Introduction

[1] On 14 September 2023, inspectors working for Health Canada obtained a warrant to enter the dwelling house of Richard Beamer, president of BIE Health Products. The warrant authorised the seizure of products sold by BIE which did not comply with the Food and Drugs Act, R.S.C., 1985, c. F-27, (the "FDA") and Food and Drug Regulations, C.R.C., c. 870, (the "Regulations"). That warrant was executed on the 19th of September 2023.

[2] The inspectors entered the property and seized bottles of "GHR" capsules. These were seized because Health Canada believe that they were non-compliant with the FDA and the Regulations.

[3] The applicant, BIE, submits that no charges have been laid under the FDA and that Health Canada still possesses the products. The applicant asks for the warrant to be quashed and the seized goods to be returned. In response, the respondent Crown argues that Health Canada has the lawful authority to retain the goods to ensure compliance with the statute and its Regulations.

[4] The issue to be decided before this court is jurisdictional: should this application be heard in the Superior Court of Justice or the Federal Court? The Crown argues that the latter has exclusive jurisdiction whilst BIE submits that the application should be heard by a judge of this court.

The Legislation

[5] By way of overview, the FDA and the Regulations govern the manufacture, importation, distribution, advertising and sale of drugs in Canada.

[6] Health Canada is responsible for monitoring compliance activities related to health products. As part of that supervisory role, one of Health Canada's enforcement agencies, the Regulatory Operations and Enforcement Branch (the "ROEB") has powers to ensure health actors conform with regulatory requirements.

[7] Activities that the ROEB supervises or monitors include industry inspection and product investigation. Exercise of the ROEB powers are a key part of the monitoring process. The ROEB gains its authority through the FDA and the Regulations.

[8] The FDA includes various Schedules which identify drugs prohibited to be sold in Canada. Some drugs may gain exemption from prohibition if the Minister explicitly specifies that the premises in which the drug was manufactured and the process and conditions of manufacture therein are suitable to ensure that the drug will not be unsafe for use. The sale of drugs is prohibited unless the laws of a province allows it, or the seller sells the drug to a specified buyer listed in the statute.

[9] In order to meet these aims, the FDA authorises inspectors to enter properties as part of its enforcement duties.

[10] Section 23(1) of the FDA reads as follows:

23 (1) Subject to subsection (9), an inspector may, for a purpose related to verifying compliance or preventing non-compliance with the provisions of this Act or the regulations, enter any place, including a conveyance, in which they believe on reasonable grounds

(a) an activity that may be regulated under this Act is being conducted;

(b) any article to which this Act or the regulations apply is located;

(c) an activity could be conducted under an authorization, including a licence, for which an application is under consideration by the Minister; or

(d) an activity could be conducted as a result of an exemption that is under consideration by the Minister.

[11] Section 23(2) permits inspectors to examine or seize items they reasonably believe contravene the FDA or the Regulations.

[12] When an inspector wishes to enter a dwelling house they may obtain a warrant permitting it. Section 23(10) states:

(10) A justice of the peace may, on ex parte application, issue a warrant authorizing the inspector named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

(a) the dwelling-house is a place referred to in subsection (1);

(b) entry to the dwelling-house is necessary for a purpose referred to in that subsection; and

(c) entry to the dwelling-house has been refused or there are reasonable grounds to believe that it will be refused.

[13] Section 26 of the FDA stipulates that an inspector who has seized an article shall release it when satisfied that the FDA and the Regulations have been complied with.

Where Does the Jurisdiction Lie?

[14] The main pillar of the applicant's argument is that since the warrant was issued pursuant to the provisions in the Criminal Code, the jurisdiction to review and quash the warrant is in the Superior Court of Justice.

[15] This argument is misconceived. As already described, the power to issue the warrant in this case arises from s. 23(10) of the FDA, not the Criminal Code, R.S.C., 1985, c. C-46. That is made clear from the terms of the warrant itself which explicitly authorises the warrant because the jurist is "satisfied that the conditions of section 23(10) of the Food and Drugs Act are met".

[16] Section 23(2) of the FDA provides a general discretion to inspectors to seize goods that they reasonably believe contravene the FDA or its Regulations. These inspectors fall within the definition of a "federal board, commission or other tribunal" defined in the Federal Courts Act, R.S.C., 1985, c. F-7, as "any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament".

[17] Under s. 15 of the Federal Courts Act, R.S.C., 1985, c. F-7, the Federal Courts have exclusive jurisdiction to review decisions and actions taken by federal boards, commissions and tribunals. Accordingly, a challenge to the inspector's seizure would, under the statute, have to be made to the Federal Court.

[18] Moreover, I agree with the Crown that it would make little sense for Parliament to specifically legislate the power to issue warrants of entry to a dwelling house in the FDA and simultaneously engage the provisions of the Criminal Code which has its own set of rules in relation to obtaining and executing a search warrant.

[19] Further, as the Crown rightly points out, the applicant's argument would lead to a bifurcated seizure system where non dwelling house seizures did not require warrants and would not be subject to the Criminal Code and dwelling house seizures would. I cannot believe that Parliament would intend such a confusing regime.

[20] Finally, there is authority that a Charter challenge to seizures under the provisions of the FDA can be made in Federal Court: Truehope Nutritional Support Limited and David Hardy v. The Attorney General of Canada and the Minister of Health, 2010 FC 63, 204 C.R.R. (2d) 319, aff'd 2011 FCA 114, leave to appeal to S.C.C. refused, 428 N.R. 400 (2011).

[21] For these reasons, I find that the appropriate forum for this application is the Federal Court.

S.A.Q. Akhtar J.

Released: 24 December 2025