TURMEL: Harris Federal Court 10-day supply win parsed (3/6)
From John KingofthePaupers Turmel@1:229/2 to All on Thu May 9 08:33:30 2019
[continued from previous message]
Plaintiffs to appeal their prior claims, but they declined
to do so. And there is no reason Harris could not have
raised his section 15 of the Charter claims before, which
the Defendant submits is a further abuse of process.
 Harris submits (for himself and others, a point to
which I will return) their claims raise sufficient facts.
While the Defendant criticizes their alleged "dearth" of
facts, the Plaintiffs submit the real issue is whether the
facts are "enough" to support the essential elements of the
constitutional causes of action. The facts in the Harris
claim are the same necessary facts found sufficient in
Garber: (a) the Plaintiff has a medical authorization for
(b) 100 grams per day meaning he cannot carry enough for
more than 1.5 days away from home and needs 20 costly
couriers a month, 240 per year. These were the same facts
relied upon by Garber plaintiff Boivin (who likewise had
permission to use 100 grams per day) which was sufficient to
establish a possible violation of Boivin's section 7 and 15
 As I understand them, the Plaintiffs agree the 150-gram
possession cap and one-year medical document renewal
requirement (raised by Spottiswood) were raised previously,
but they distinguish their cases on the facts. The Court
notes that the 150-gram possession cap was upheld by Justice
Manson in the Allard motion and by Justice Phelan in the
Allard action. The Court also notes that the one-year
medical authorization renewal requirement was upheld in R v
Beren, 2009 BCSC 429, leave to appeal refused 2009 SCCA No
272 [Beren] at paras 33(e), 94-95; see also the Kit Case
judgment by Justice Phelan at para 36 who held the general
requirement for medical authorization is constitutional.
 The Plaintiffs submit the Allard action did not
consider an allegation of "fraudulent scientific evidence
leading to genocidal undermedication."
 Regarding the necessity of "cogent reasons", the
Plaintiffs note that Garber granted high-dose users (like
Harris) a ten-day supply by way of constitutional exemption
in excess of the 150-gram possession cap, resulting in one
167-gram-per-day patient having a possession limit over 1.6
kilograms every ten days. There is a difference the
Plaintiffs submit, in the evidence and patient dosage from
the motion before Justice Manson, who heard from low-dose
users, i.e. those with medical authorizations for 5 to 25
grams per day.
 As for not raising section 15 before, the Plaintiffs
submit there are more plaintiffs now who were not present
then, and that they are raising section 15 equality rights
for the first time right now. They submit there is no reason
not to allow others to rely on section 15.
 In my view and based on the facts pleaded in his
Statement of Claim, which as required I accept as true,
Harris has a medical document entitling him to a very high
dose of medical cannabis-100 grams per day. It is clear to
me that Harris and others like him are in a very different
factual situation from the Plaintiffs before the Court in
the Allard motion and Allard action: they only had
permission to use between 5 and 25 grams per day. Harris has
permission to use far more medical cannabis - between four
and twenty times that amount every day.
 Frankly, the amount Harris has been prescribed is
extraordinarily high: it is in some months more than 3
kilograms. Harris does not state the nature of his illness,
nor why he needs so much medical cannabis. At one point the
Defendant suggests such a high dose might only be justified
by a terminal medical condition. But the Defendant does not
submit that Harris must plead the nature of his illness or
why so much is required, nor am I persuaded Harris or
Spottiswood should be required to do so. The determination
of what is required to treat Harris' medical condition is
for the prescribing health care professional to decide, not
the Court, at least for the purposes of a motion to strike
or for interim relief.
JCT: Once and for all, the Court has ruled the doctor's
authorization is enough, don't have to tell them what
illness you've got! Doctor knows best.
 The 2018 Cannabis Regulations enacted by the Governor
in Council allow "medical practitioners" and "nurse
practitioners" as defined in the province concerned to issue
prescriptions for medical cannabis; these prescriptions are
called "medical documents." I take it as a given on the
motion to strike - as I must - that Harris' medical
practitioner or nurse practitioner, whichever signed his
medical document, approved his very large prescription. If
the Defendant seeks to challenge the amount prescribed,
contrary evidence is required. However, the Defendant didn't
file contrary evidence to that effect, nor is such evidence
generally allowed on a motion to strike.
 I conclude the facts pleaded here significantly depart
from those before Justices Manson and Phelan in the Allard
JCT: No high-dosers before Manson and Phelan matters.
 Another distinguishing factor between the case at bar
and the Allard matters is that the Harris action is brought
within a completely new access to cannabis regime, enacted
by Parliament in 2018 to generally legalize possession and
use, within limits. Access to medical cannabis is no longer
a carve-out from a highly restricted criminal law regime set
up by the CDSA; the current medical cannabis regime now fits
within an entirely new framework and context of generally
legalized access to cannabis.
 I also note that the Kit Case judgment did not deal
with or focus upon high dose profile medical cannabis users
such as Harris.
JCT: Love hearing that again.
 The effect of the previous jurisprudence is also
attenuated because in the interim, a constitutional
exemption from the 150-gram possession cap was granted by
the Associate Chief Justice of the Supreme Court of British
Columbia in the Garber case, albeit on an interim basis (as
is sought here on the interim motion). The Garber case
involved high-dose users with authorization to use between
36 and 167 grams per day for medical purposes, the latter
being an even higher dose than prescribed to Harris in the
case at bar. Garber changed the legal environment; Garber
does not seem to have been appealed.
JCT: Garber proved high-dosers needed their own environment
 Given these factors I am not persuaded the Harris claim
involves a relitigation of either the Allard or Kit Case
matters. Thus, and with respect, I have concluded comity
does not apply. In addition, I am not satisfied the
Defendant has established an abuse of process; with respect
there is no merit to that submission.
(2) Is the Court's previous affirmation of the
constitutionality of possession limits and the annual
medical authorization requirement binding?
 The Defendant says that this Court previously affirmed
the constitutionality of the 150-gram possession cap in the
Allard action and did so again in Davey, which dismissed the
motion for reconsideration of the Allard action: Davey at
para 28. The Defendant submits the Plaintiffs do not raise a
cogent reason why the Court should depart from the Allard
 Further, regarding the Plaintiffs' argument on the
high- versus low-dose users of medical cannabis, the
Defendant submits that while the four Allard plaintiffs were
authorized to use 5 to 25 grams per day, there was evidence
in Allard of patients authorized to use larger quantities,
some in excess of 100 grams. Nevertheless this Court deemed
the 150-gram possession cap constitutional.
 Moreover, the Defendant says no weight should be given
to Garber on a motion to strike. The Defendant submits
decisions granting interlocutory injunctions have no bearing
on subsequent motions to strike for no reasonable cause of
action, given the significantly different tests involved in
the two motions: Coca-Cola Ltd v Pardhan (1999), 172 DLR
(4th) 31 (FCA), per Strayer JA at para 30. Even if the
interlocutory injunction decisions were relevant, Justice
Manson rejected a similar request for interlocutory
exemption from the 150-gram possession cap, and the decision
was affirmed on appeal.
 The requirement for medical authorization to use
cannabis has consistently been held constitutional: Hitzig v
Canada (2003), 231 DLR (4th) 104 (Ont CA) [Hitzig] at paras
138-45, leave to appeal refused 2004 SCCA No 5 ("[j]ust as
physicians are relied on to determine the need for
prescription drugs, it is reasonable for the state to
require the medical opinion of physicians here" at para
139); Beren ("we conclude that the MMAR implicate the right
of security of the person of those with the medical need to
take marihuana" at para 95); Kit Case judgment ("It is
settled law... that the requirement for medical
authorization is constitutionally sound" at para 36). Hitzig
notes its holding may be revisited if physician
participation ever declined to a point that a medical
exemption was practically unavailable: at para 139. However,
Spottiswood does not raise this, but instead appears to take
issue with patients needing to annually visit a health care
practitioner. Beren rejects a similar argument that the
requirement for annual renewal was arbitrary as applied to
terminally ill patients and those with prescribed chronic
 The Plaintiff Harris says that the Allard action's
discussion of the 150-gram possession cap considered
relatively trivial inconveniences. For a 25-gram patient to
not leave home for more than six days and replenish five
times a month seems minor. However the 150-gram possession
cap is grossly disproportional for a person with approval to
use far larger amounts of medical cannabis. This is
evidenced where Justice Phelan said in his reasons, "[t]he
possession cap still allows one to possess more than their
necessary amount of marijuana": Allard action at para 288.
This is not true of those allowed to use far larger amounts
for medical purposes.
JCT: Ouch. Phelan J.'s statement is not true of those
allowed to use far larger amounts for medical purposes!
 Further, the Allard plaintiffs sought a declaration to
strike the 150 gram per day possession in a public place cap
so as to leave no maximum cap; however, the court would not
grant such an overbroad remedy. Here, however the Plaintiffs
only seek to strike the "150 gram maximum"; but not the "30-
day maximum" cap.
JCT: Ahhh. Nice that he accepted that the Allard motion was
overbroad in not leaving the 30-day maximum cap but we were
perfectly precise in only challenging the cap and not also
the 30-day limit!! Don't I feel so much sharper than Conroy.
 Regarding reliance on Garber, the Plaintiffs submit the
decision's finding that high-dose users would suffer
irreparable harm is now in evidence; and there have been no
decisions in this Court dealing with high-dose medical
cannabis users and dying patients; whereas Garber deals with
such and disposes of Justice Manson's limit. Moreover, the
"Defendant did not point out the different tests for
Applicants herein seeking the same remedy for the same
JCT: Har har har har har har. They just threw out "there are
different tests" without telling us what tests are to be
distinguished and Judge Brown called them out on it. Har har
har har har har har har har.
 As for the one-year prescription renewal requirement,
which Spottiswood raises, the Plaintiffs submit the
Defendant misleads this Court in asserting several courts
affirmed the constitutionality of requirements for annual
medical authorization to use cannabis for medical purposes,
when not one court has affirmed it. While the constitutional
requirement for medical authorization to use cannabis is
settled law, annual medical authorization is not, and
neither adjudicated in Beren nor the Allard action.
JCT: Pointing out another lie that annual medical exams had
been okayed when it was only medical exams to start.
 Regarding the constitutionality of the 150-gram
possession cap, the Defendant correctly argues that this
Court in the Allard action found it constitutionally sound.
However, in my view the facts were very different. The
permitted medical authorizations in this case are at least
double and in many cases many multiples of the maximum
amounts allowed to the Allard plaintiffs. The Allard
plaintiffs had permits for 5 to 25 grams while Harris has a
prescription or medical document authorizing 100 grams per
day which is twenty times the Allard low end of 5 grams, and
four times the Allard high end of 25 grams per day. None of
the Allard plaintiffs had daily dosages exceeding 25 grams.
 For a 25-gram patient to not leave home for more than
six days and be required to replenish five times a month
does seem relatively minor. Even more minor is the situation
for a 5-gram a day patient to have to renew every 30 days,
when compared to the impact of a 150-gram possesion cap. The
impact of the 150-gram possession cap, in my view, is
grossly disproportional for a person with medical approval
to use the very large amounts of medical cannabis as in this
case. Harris in this context must renew every day and a half
if he travels away from his home.
 While the Defendant is correct in submitting evidence
existed in the Allard action that there were individuals
with higher permitted uses than 25 grams, the profile of
high-dose users was not expressly discussed within
paragraphs 286 to 288 where Justice Phelan decided the
constitutionality of possession limits.
JCT: So someone mentioned it but Phelan didn't discuss it.
 This submission of the Defendant overlaps with the
argument on relitigation and comity. As already noted, the
facts are remarkably different between the Harris case and
the previous jurisprudence. So too might the ultimate
outcome if this matter proceeds to trial as, in my view, it
JCT: Going for the same 30-day supply as for even heavy
narcotics is going to trial with a possible different
 In my view, the Harris action is sufficiently different
from the previous litigation such that the previous
litigation does not predetermine the result in the case at
bar. The Harris action will not be struck on this basis
because in my view it cannot be said it has no chance of
success; see Hunt v Carey Canada Inc,  2 SCR 959, per
Wilson J [Hunt] at para 24:
 In England, then, the test that governs an
application under R.S.C., O. 18, r. 19, has always been
and remains a simple one: assuming that the facts as
stated in the statement of claim can be proved, is it
"plain and obvious" that the plaintiff's statement of
claim discloses no reasonable cause of action?... But if
there is a chance that the plaintiff might succeed, then
that plaintiff should not be "driven from the judgment
seat". Neither the length and complexity of the issues
of law and fact that might have to be addressed nor the
potential for the defendant to present a strong defence
should prevent a plaintiff from proceeding with his or
her case. Provided that the plaintiff can present a
"substantive" case, that case should be heard.
JCT: Notice how they always say they don't know how to
defend without knowing "what illness," "why not chems?" "why
grow and not purchase?"
 I wish to add that compelling arguments supporting a
decision to grant an interlocutory injunction may be equally
compelling to defeat a motion to strike.