• 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.

    Plaintiffs' position

    [28] 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
    rights.

    [29] 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.

    [30] The Plaintiffs submit the Allard action did not
    consider an allegation of "fraudulent scientific evidence
    leading to genocidal undermedication."

    [31] 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.

    [32] 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.

    Analysis

    [33] 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.

    [34] 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.

    [35] 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.

    [36] I conclude the facts pleaded here significantly depart
    from those before Justices Manson and Phelan in the Allard
    matters.

    JCT: No high-dosers before Manson and Phelan matters.

    [37] 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.

    [38] 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.

    [39] 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
    considered.

    [40] 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?

    Defendant's position

    [41] 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
    action.

    [42] 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.

    [43] 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.

    [44] 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
    conditions.

    Plaintiffs' position

    [45] 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!

    [46] 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.

    [47] 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
    harms."

    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.

    [48] 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.

    Analysis

    [49] 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.

    [50] 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.

    [51] 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.

    [52] 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
    should.

    JCT: Going for the same 30-day supply as for even heavy
    narcotics is going to trial with a possible different
    outcome!!!

    [53] 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, [1990] 2 SCR 959, per
    Wilson J [Hunt] at para 24:
    [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?"

    [54] 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.


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