



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 definitions 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 appellants 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 companys 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
    appellants 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 judges 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] 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 readers 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] 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 definitions
    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 appellants 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] 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 Ministers 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 bills 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 Ministers
    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 appellants 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] 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.)
, [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 states 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 servants
    evidence on the Acts 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 Canadas 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 appellants 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 appellants 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 courts 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 appellants 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 legislations 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 appellants
    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
    websites claims in relation to the products that form the substance of these
    charges. The specific claims of the sites 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 judges 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
    websites 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 latténuation ou à la prévention dune maladie,
    dun désordre, dun état physique anormal ou de leurs symptômes, chez lêtre
    humain ou les animaux;


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


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



[2]
I note that, given the trial judges 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.


