• TURMEL: Harris Federal Court 10-day supply win parsed (1/6)

    From John KingofthePaupers Turmel@1:229/2 to All on Thu May 9 08:33:30 2019
    From: johnturmel@gmail.com

    JCT: http://johnturmel.com/150cn1j.pdf has the actual court
    decision PDF without my commentary.

    Date: 20190507
    Dockets: T-1765-18
    Citation: 2019 FC 553
    Ottawa, Ontario, May 7, 2019

    PRESENT: The Honourable Mr. Justice Brown
    Docket: T-1765-18


    Docket: T-1716-18

    Docket: T-1913-18


    I. Nature of matters

    [1] These reasons deal with the Crown's motion to strike the
    action brought by the Plaintiff Allan J Harris [Harris], and
    a motion brought by Harris for an order granting him interim
    relief against the possession and shipping limit of 150
    grams of medical cannabis. These reasons also deal with
    related actions brought by the Plaintiffs Raymond Lee
    Hathaway [Hathaway], and Mike Spottiswood [Spottiswood],
    whose actions have been case-managed together with that of
    Harris. Harris and Hathaway are the lead cases in this
    group. Each Plaintiff seeks a declaration regarding the
    unconstitutionality of provisions relating to medical

    A. Summary re Harris action

    [2] Harris is authorized to use 100 grams of cannabis for
    medical purposes each day, which works out to a kilogram
    every 10 days and approximately three kilograms a month. He
    seeks a declaration that various provisions of the Cannabis
    Regulations, SOR/2018-144 [Cannabis Regulations] which
    impose a 150-gram cap on possession and shipment of cannabis
    in a public place are unconstitutional because they pose a
    threat of fines or incarceration on him and others with
    large prescriptions like his. Harris claims the 150-gram cap
    violates his rights to life, liberty, and security of the
    person under section 7, and discriminates against him
    contrary to his equality rights under section 15 of the
    Canadian Charter of Rights and Freedoms, Part I of the
    Constitution Act, 1982, being Schedule B to the Canada Act
    1982 (UK), 1982, c 11 [Charter]. Harris submits that because
    of this cap he is unable to travel more than a day and a
    half away from his home.

    [3] In summary, I am dismissing the Crown's motion to
    strike, save certain phrases in Harris' claim. In addition,
    I am granting Harris a ten-day exemption to the 150-gram
    possession and shipping cap, such that he may possess and
    ship 1,000 grams of medical cannabis.

    B. Summary re Hathaway action

    [4] Hathaway claims he is disabled by an inoperable tumour
    on the spine and has ACMPR Authorization to use 100 grams of
    cannabis each day. He seeks a declaration that various
    provisions of the Access to Cannabis for Medical Purposes
    Regulations, SOR/2016-230 [ACMPR] imposing a 150-gram cap on
    possessing and shipping cannabis are unconstitutional on the
    ground that they pose a threat of fines or incarceration to
    patients with larger prescriptions. The regulations Hathaway
    relies upon were repealed in 2018, he was given an
    opportunity to amend but did not and therefore his action is
    dismissed as moot.

    C. Summary re Spottiswood action

    [5] Spottiswood claims he has authorization to use cannabis
    for a "permanent medical condition" without further detail.
    He seeks a declaration that subsection 273(2) of the
    Cannabis Regulations, requiring that the period of use of a
    prescription, or "medical document", must not exceed one
    year, violates section 7 Charter rights to life and security
    of permanently ill patients such as himself. He claims that
    patients affected by the Marihuana Medical Access
    Regulations, SOR/2001-227 [MMAR] (the regulatory part of the
    medical marijuana regime in place between 2001 and 2014)
    whose permits were extended since 2014 have no problems
    remaining authorized without renewing their permits. In
    summary, I am striking Spottiswood's action as well without
    leave to amend.

    II. History and basis of right to medical marijuana

    [6] I outlined the basis of the right to medical marijuana
    in Harris v Canada, 2018 FC 765 [Harris I] at paras 11-12,
    and in doing so relied on the decision of Allard v Canada,
    2016 FC 236, per Phelan J [Allard action]:
    [11] The right to possess and cultivate marijuana for
    medical purposes has been litigated in Canada for almost
    two decades. A brief overview of this history is
    provided by Phelan J. of this Court in Allard v Canada,
    2016 FC 236, from which I take the following:
    1 This is a Charter challenge to the current
    medical marihuana regime under the Marihuana for
    Medical Purposes Regulations, SOR/2013-119 [MMPR]
    brought by four individuals. It is important to
    bear in mind what this litigation is about, and
    equally, what it is not about.
    2 This case is not about the legalization of
    marihuana generally or the liberalization of its
    recreational or life-style use. Nor is it about the
    commercialization of marihuana for such purposes.
    3 This case is about the access to marihuana for
    medical purposes by persons who are ill, including
    those suffering severe pain, and/or life-
    threatening neurological conditions. Such persons
    also encompass those in the very last stages of
    their life.
    4 This is another decision in a line of cases
    starting with R v Parker, (2000) 49 OR (3d) 481,
    188 DLR (4th) 385 (ONCA) [Parker], and culminating
    in R v Smith, 2015 SCC 34, [2015] 2 SCR 602
    [Smith], that have examined, often with a critical
    eye, the efforts of government to regulate the use
    of marihuana for medical purposes and the various
    barriers and impediments to accessing this
    necessary drug.
    5 Like other cases, this most recent attempt at
    restricting access founders on the shoals of the
    Canadian Charter of Rights and Freedoms, Part 1 of
    the Constitution Act, 1982, being Schedule B to the
    Canada Act 1982 (UK), 1982, c 11 [the Charter],
    particularly s 7, and is not saved by s 1.
    1. The Canadian Charter of Rights and Freedoms
    guarantees the rights and freedoms set out in
    it subject only to such reasonable limits
    prescribed by law as can be demonstrably
    justified in a free and democratic society.
    7. 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.
    6 The Court has concluded that the Plaintiffs'
    liberty and security interest are engaged by the
    access restrictions imposed by the MMPR and that
    the access restrictions have not been proven to be
    in accordance with the principles of fundamental
    [12] Suffice it to say that the right to access
    marijuana and cannabis for medical purposes is
    guaranteed by the Charter, an undoubted legal matter
    having been decided by this Court, the Supreme Court of
    Canada, and as well, by Superior Courts in the
    provinces. In addition, the right of access to marijuana
    and other cannabis products for medical purposes is a
    right conferred upon individuals, on application, by the
    Governor in Council in subordinate legislation, i.e.,
    regulations issued pursuant to the relevant legislation.

    [7] The following relevant jurisprudence, legislation, and
    regulations set out the context for the parties' submissions
    and the Court's analysis:
    - R v Parker (2000), 49 OR (3d) 481(CA), per Rosenberg
    JA [Parker] declared the marijuana prohibition in
    section 4 of the Controlled Drugs and Substances Act, SC
    1996, c 19 [CDSA] invalid because it infringed the
    respondent's section 7 Charter rights to security of the
    person and liberty.

    - Canada enacted the MMAR in 2001 in response to Parker.
    The 2014 pre-repeal version of the MMAR authorized
    possession of dried marijuana at 30 times the prescribed
    daily dosage; and provided the Authorization to Possess
    which expired 12 months after its date of issue: section
    11, subsection 13(1). Notably there was no cap at that

    - Canada introduced the Marihuana for Medical Purposes
    Regulations, SOR/2013-119 [MMPR] in 2013, which soon
    after repealed the MMAR. MMPR introduced a 150-gram
    possession cap on dried marijuana to the lesser of 30
    times the daily dosage or 150 grams.

    - Four Allard plaintiffs with daily dosages not
    exceeding 25 grams commenced actions in this Court to
    determine whether the then-new MMPR regime limited their
    Charter rights. They sought pre-trial relief to preserve
    their rights under the repealed MMAR provisions,
    including the absence of the cap on possession enacted
    in the MMPR regime. The cases were decided in Allard v
    Canada, 2014 FC 280, per Manson J, aff'd 2014 FCA 298
    [Allard motion]. Justice Manson granted an interim pre-
    trial constitutional exemption to the Allard plaintiffs,
    based on section 7 of the Charter. Justice Manson
    allowed them to continue to rely on the Authorizations
    to Possess issued under the MMAR, and to continue to
    grow their own cannabis under the Personal Use
    Production Licenses or the licences of other designated
    persons issued under the repealed MMAR regime. However,
    Justice Manson, on the facts before him, did not relieve
    the Allard plaintiffs from the new 150-gram possession
    cap created by the MMPR because he was unconvinced it
    would subject the Allard plaintiffs to irreparable harm
    until trial: Allard motion at paras 126, 128.

    - After Justice Manson's decision in the Allard motion,
    numerous claimants, including Spottiswood and a
    Plaintiff named in Schedule "A" in this proceeding
    (Arthur Jackes), brought actions in this Court based on
    "kits" downloaded from a website, claiming that both the
    repealed MMAR and the then-newly enacted MMPR regimes
    violated their section 7 Charter rights. Many of them
    moved for interim relief seeking constitutional
    exemptions from the prohibition against marijuana in the
    CDSA for personal use: In re numerous filings seeking a
    declaration pursuant to s 52(1) of the Canadian Charter
    of Rights and Freedoms, 2014 FC 537, per Phelan J [Kit
    Case motion] at paras 9, 10. Justice Phelan's Order
    dated June 4, 2014 stayed these actions pending a
    decision in the trial of the Allard action.
    - In British Columbia, four plaintiffs challenged the
    validity of the MMPR as infringing their sections 6, 7,
    and 15 Charter rights. They had been prescribed daily
    dosages of 36, 60, 100, and 167 grams per day. They
    brought an application for an interim
    injunction/exemption to preserve and extend their
    authorization to produce, transport, store, and possess
    cannabis: Garber v Canada (Attorney General), 2015 BCSC
    1797, per Cullen ACJSC [Garber] at paras 1-3. The
    Associate Chief Justice made an Order on the same terms
    as had Justice Manson in the Allard motion, except that
    Garber went on to exempt the plaintiffs from the 150-
    gram possession cap imposed by the MMPR: Garber at para
    148. The Associate Chief Justice said that "a
    determination of irreparable harm is case-specific" and
    found that the Garber plaintiffs are "constrained in
    their ability to travel for any reason [emphasis in
    original]" possibly contrary to sections 7 and 15 of the
    Charter: Garber at para 127. The Garber decision was not

    - In 2016, Justice Phelan made a final determination
    regarding the Allard action plaintiffs' actions (daily
    dosages not exceeding 25 grams) and found the MMPR
    contrary to section 7 of the Charter and
    unconstitutional. However, Justice Phelan found the 150-
    gram possession cap to be constitutional: Allard action
    at paras 286-88. Allard's motion for reconsideration was
    dismissed in Davey v Canada, 2016 FC 492, by Phelan J
    [Davey]. This decision was not appealed.

    - In response to the Allard action, Canada enacted a new
    medical cannabis regime in 2016, the ACMPR. The ACMPR
    retained the 150-gram possession cap.

    - In 2017, Justice Phelan rendered his judgment In re
    subsection 52(1) of the Canadian Charter of Rights and
    Freedoms, 2017 FC 30 [Kit Case judgment]. All 316
    actions were dismissed without leave to amend because
    the claims were moot, in that they relied on the
    repealed MMAR and MMPR regulations which by then had
    been repealed, the pleadings were deficient, the claims
    disclosed no reasonable cause of action, and were
    frivolous, vexatious, and an abuse of process.

    - In 2018, Parliament enacted the Cannabis Act, SC 2018,
    c 16 [Cannabis Act] to generally legalize cannabis
    possession. However, the Cannabis Act continues to
    provide restrictions on the medical use of cannabis.
    Under the Cannabis Act, adults may possess up to 30
    grams of dried cannabis in public.

    - Also in 2018, the Governor in Council enacted the
    Cannabis Regulations, which replaced the ACMPR. In the
    result, clients registered on the basis of a "medical
    document" (which I liken to a prescription) and
    registered persons, among others, that is, users of
    cannabis for medical purposes are allowed to possess in
    public of the lesser of 150 grams or 30 times the daily
    quantity of dried cannabis authorized by their health
    care practitioner in a medical document. The Cannabis
    Act and Cannabis Regulations place no limits on
    possession in a non-public place. A health care
    practitioner is a medical practitioner or a nurse
    practitioner, as defined by reference to provincial

    III. Issues

    [8] The issues of Harris' Amended Statement of Claim [Harris

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