• TURMEL: Harris Federal Court 10-day supply win parsed (5/6)

    From John KingofthePaupers Turmel@1:229/2 to All on Thu May 9 08:33:30 2019
    [continued from previous message]

    30 grams) nor a Charter right to do so. The requested relief
    is therefore tantamount to an interlocutory declaration that
    Harris may possess in public and ship over 180 grams of
    cannabis. The Defendant submits declaratory remedies are not
    available on an interlocutory basis: Sawridge Band v Canada
    [2003] 4 FC 748 at para 6, aff'd 2004 FCA 16 ("[a]n interim
    declaration of right is a contradiction in terms"). Harris
    is effectively asking this Court to rule on the central,
    constitutional issue on an interlocutory basis without
    benefit of a full evidentiary record or trial.

    [79] In my view, there is little merit in the Defendant's
    submission.

    [80] In the first place, similar exemptions have been sought
    and granted both by this by Justice Manson in the Allard
    motion, and by Associate Chief Justice Cullen in Garber. As
    will be seen, I propose to follow this jurisprudence.

    [81] Secondly, the Defendant submits that even if the
    interlocutory injunction test is applied, Harris fails to
    meet the test in RJR MacDonald v Canada (Attorney General),
    [1994] 1 SCR 311 [RJR MacDonald] at p 334. With respect,
    this is the proper starting place of the analysis of this
    issue. And, also with respect, I disagree with the
    Defendant's submission that the tripartite test for interim
    relief has not been met. I will look separately at the
    serious issue, irreparable harm and balance of convenience
    branches of the tripartite test.

    [82] In the normal case the serious issue test requires an
    applicant to raise a serious issue, that is, an issue that
    is not frivolous or vexatious (RJR MacDonald at pp 314-15).
    More recently the Supreme Court of Canada in R v Canadian
    Broadcasting Corp, 2018 SCC 5 Broadcasting] at para 15
    elevated the test where the applicant is seeking an interim
    order that would give the same result as sought on a final
    determination, from RJR MacDonald's "serious issue" to the
    higher test of "whether the applicant has shown a strong
    prima facie case."

    [83] In my respectful view, Harris has met both variants of
    the serious issue test. Moreover, in my respectful view, the
    fact Harris cannot leave his home for more than a day and a
    half is amply supported by the record.

    JCT: Backed by only 1 factual datum: his authorized dosage.
    Everything else follows.

    In my view the restraints imposed on Harris by operation of
    the Cannabis Regulations' 150-gram possession and shipping
    cap may constitute a breach of his section 7 Charter rights
    at the present time, which breach will certainly continue to
    the date of trial judgment and thereafter if left
    unrelieved. In other words I am unable to envisage a trial
    judgment that differs from my determination on this interim
    motion.

    JCT: Looks like we're on our way to 30-days!!!

    [84] I need not find a breach of Harris' sections 15 Charter
    rights. That said, it appears likely those rights are
    currently being breached and will continue to be breached
    unless and until a Charter remedy is granted.

    [85] In my view, Harris has established irreparable harm
    occurring to him now and until such time as his legal rights
    are determined. To repeat, Harris is not able to travel for
    more than a day and a half from his home. This is likely an
    ongoing and present infringement of his rights under section
    7 of the Charter. He has also established a strong case of
    unlawful discrimination contrary to section 15 of the
    Charter.

    JCT: That's based on 30-day narcotic supplies.

    Both derive from the operation against him of the
    prohibition set out in paragraph 266(3)(b) of the Cannabis
    Regulations, against possessing more than 150 grams of
    cannabis in public. This cap applies to Harris even though
    he requires a far higher amount if he is to travel more than
    a day and a half from his home. I take it as a given that
    this level of need for medical cannabis has been assessed by
    a qualified health care provider.

    JCT: The doctor rules!

    [86] In my view Harris has not simply made a general
    assertion of harm, as suggested by the Defendant. Further,
    there is "evidence at a convincing level of particularity
    that demonstrates a real probability that unavoidable harm
    will result": Gateway City Church v Canada (Minister of
    National Revenue), 2013 FCA 126 at paras 16.

    [87] The third part of the test for interim relief is the
    balance of convenience. In my view, the balance of
    convenience favours granting an interim exemption. I
    appreciate the Defendant's submission that the public
    interest generally favours the continued application and
    enforcement of validly enacted federal law: RJR Macdonald at
    para 71; Harper v Canada (Attorney General), 2000 SCC 57 at
    para 9. However, in my view Harris has demonstrated that
    relief from the Cannabis Regulations would itself provide a
    public benefit: RJR MacDonald at para 80, because the relief
    requested flows from the likely ongoing breach of his
    Charter rights. With respect, the public interest favours
    Harris' Charter-protected right to travel more than a day
    and a half from his home: every Canadian has or should have
    that right unless justifiably limited by state action which
    does not appear to be established in this case.

    [88] Harris does not ask to possess any amount "over 150
    grams", but seeks only enough for ten days' worth of use. In
    other words, he seeks substantially the same exemption
    granted to the plaintiff Boivin in Garber who was granted
    the right to possess 1,000 grams. Another plaintiff in the
    Garber case, with a prescription for 167 grams a day, was
    granted an exemption entitling him to possess up to 1,670
    grams. Both exemptions were based on a ten-day supply.
    Associate Chief Justice Cullen in Garber found these figures
    would "strike a balance between the public interest in
    limiting the risks to public safety and public health by
    avoiding the right to possess an overabundance of marihuana,
    and it will limit the number of medical cannabis users who
    would benefit from a challenge to the 150-gram possession
    cap, while at the same time ameliorating the restrictions on
    the applicants' ability to travel with their medications. It
    will also avoid the need for frequent replenishments of
    supply": Garber at para 138. I respectfully agree with these
    comments.

    [89] I will mention one further factor in assessing the
    balance of convenience. At present, Harris pleads and I
    therefore must accept that he needs to travel to pick up his
    medical cannabis 20 times a month; priority post cost of $35
    per 150 grams is $700 per month. An interim exemption for a
    ten-day supply would allow Harris to cut back to three
    shipments a month. Annualized, it would reduce shipping
    costs from $700 a month to $105 a month, and the number of
    shipments would drop from 240 times a year to three dozen.
    These economic realities factor into the Court's assessment
    of the balance of convenience.

    [90] Overall, in my view the balance of convenience favours
    Harris.

    [91] Having satisfied the tripartite test set out in RJR
    MacDonald at p 334 and elevated in Canadian Broadcasting
    Corp at para 15, the Court will grant Harris an exemption
    from the 150-gram possession limit imposed by paragraph
    266(3)(b) of the Cannabis Regulations and the 150-gram
    shipping limits in paragraph 290(1)(e), subsection 293(1),
    and subparagraph 297(1)(e)(iii) of the Cannabis Regulations
    such that he may possess and ship a ten-day supply.

    (1) Other Parties

    [92] Harris seeks similar Orders for the other high-use
    Plaintiffs shown on Schedule "A" hereto, whose actions are
    stayed pending determination of this Harris action and in
    particular the Defendant's motion to strike. The Defendant
    opposes.

    [93] To inform this discussion I have attached to these
    Reasons as Schedules "C" and "D" respectively the order-
    related parts of the decisions of Justice Manson in the
    Allard motion, and Associate Chief Justice Cullen in Garber.

    [94] While Harris is one of the lead Plaintiffs on this
    motion to strike, in accordance with Rules 119 and 121 of
    the Federal Courts Rules, it would be not be appropriate to
    allow Harris to seek this relief on behalf of the other
    Plaintiffs, because Harris is not a solicitor.

    [95] However, in my view fairness requires the Court to
    afford the same relief to Plaintiffs who are similarly
    situated to Harris. It appears the other Plaintiffs in this
    group, namely, the Schedule "A" Plaintiffs, are authorized
    to possess medical cannabis in amounts ranging from 50 to
    200 grams per day. I would like to hear from the Defendant
    how these other claims should be treated, and will allow 20
    days for such input. I propose to review the other files
    thereafter, with a view to granting similar exemptions from
    the 150-gram possession limit imposed by paragraph 266(3)(b)
    of the Cannabis Regulations such that each of the others may
    possess a ten-day supply, which seems appropriate; however I
    will hear from the Defendant before coming to a conclusion
    in that respect.

    VII. Conclusion

    [96] I am respectfully of the view Harris' Amended Statement
    of Claim should be preserved, except for the specific
    sentences found to be scandalous, frivolous, and vexatious,
    as mentioned above. I am of the view the Defendant's motion
    to strike Hathaway and Spottiswood's Statements of Claim
    should be granted on the bases of mootness and disclosing no
    reasonable cause of action, respectively; without leave to
    amend. The actions of the Plaintiffs named in Schedule "B"
    shall also be dismissed without leave to amend given my
    decision in the Spottiswood action.

    JCT: That's a few others who challenged the 1-year cap for
    permanently-ill patients. Have to be appealed. Annual is
    unreasonable.

    [97] I note that the Statements of Claim of the Plaintiffs
    named in Schedule "A" rely on the repealed ACMPR, as did
    Hathaway. However, the Order of November 1, 2018 only
    permitted Harris and Hathaway to amend their Statements of
    Claim. Respectfully, I am of the view that the Schedule "A"
    Plaintiffs should not be affected by this, and that their
    case should "piggy-back" on Harris' Amended Statement of
    Claim as if it had been amended as in the Harris case
    (Hathaway didn't amend though he could have). For the
    purposes of the trial of their actions, they shall have
    leave to amend their pleadings to plead and rely upon the
    current Cannabis Act and Cannabis Regulations.

    JCT: Sure, for the trial of their action for the 30 days,
    their Claim can be changed.

    VIII. Costs

    [98] In my discretion I make no order as to costs.

    ORDER IN T-1765-18, T-1716-18 and T-1913-18

    THEREFORE THIS COURT ORDERS that:

    1. The Defendant's motions to strike the Hathaway and
    Spottiswood actions are granted without leave to amend.

    2. In accordance with the Spottiswood action, actions in
    Schedule "B" are dismissed without leave to amend.

    3. The Defendant's motion to strike the Harris action is
    dismissed.

    4. All references to genocide, criminality, fraud and
    fraudulent conduct are to be removed from the Harris Amended
    Statement of Claim and Harris is to serve and file a further
    Amended Statement of Claim conforming with this Order within
    15 days of the date of this Order to delete the following
    references: in para 1 ("Life,"); para 9 ("To further that
    aim, on Feb 7 2014, Health Canada provided false and
    misleading data to Judge Manson."); para 11 ("Can't even do
    basic division right."); para 26 ("(Hey Izzy, suggest a
    number!)"); para 31 ("statistical fraud"); para 35 ("Not a
    statistician, Judge Manson did not catch the fraud in the
    statistical evidence he heard nor did Counsel for the Allard
    Plaintiffs..."); para 37 ("fraudulent"); and para 37 ("in
    violation of s. 318(2) of the Criminal Code of Canada").

    5. The Harris motion for interim relief for possession is
    granted such that the Plaintiff Allan J. Harris is hereby
    exempted from paragraph 266(3)(b) of the Cannabis
    Regulations and the said Allan J. Harris may possess 1,000
    grams of dried cannabis in addition to the 30 grams of dried
    cannabis he may possess under the Cannabis Act, until such
    time as a decision in this action is rendered.

    6. Allan J. Harris is also hereby exempted from the 150-gram
    shipping limits in paragraph 290(1)(e), subsection 293(1),
    and subparagraph 297(1)(e)(iii) of the Cannabis Regulations,
    such that the said Allan J. Harris may be shipped 1,000
    grams of dried cannabis until such time as a decision in
    this action is rendered.

    7. The Defendant shall have 20 days from the date of this
    Order to make submissions on how the Court should treat the
    other Plaintiffs in this group, save Hathaway and
    Spottiswood, as set out in paragraph 95 of these Reasons.

    8. The Plaintiffs named in Schedule "A" shall have leave to
    amend their pleadings to plead the Cannabis Act and Cannabis
    Regulations to refer to the current Cannabis Act and
    Cannabis Regulations for the purposes of trial, and shall
    amend their pleadings to delete references similar to those
    referred to in Part 2 of this Order, namely: "Life," or
    other references to right to life under section 7 of the
    Charter; "To further that aim, on Feb 7 2014, Health Canada
    provided false and misleading data to Judge Manson."; "Can't
    even do basic division right."; "(Hey Izzy, suggest
    a number!)"; "statistical fraud"; "Not a statistician, Judge
    Manson did not catch the fraud in the statistical evidence
    he heard nor did Counsel for the Allard Plaintiffs...";
    "fraudulent"; and "in violation of s. 318(2) of the Criminal
    Code of Canada".

    9. There is no order as to costs.

    10. A copy of these Order and Reasons shall be placed in all
    files concerned namely T-1765-18; T-1716-18; and T-1913-18
    and those shown in Schedules "A" and "B" attached hereto.
    "Henry S. Brown"Judge
    Schedule "A"
    T-1784-18
    T-1822-18
    T-1878-18
    T-1900-18

    Schedule "B"
    T-217-19
    T-369-19
    T-399-19

    Schedule "C"
    ORDER
    THIS COURT ORDERS that:

    1. The Applicants who, as of the date of this Order, hold a
    valid Authorization to Possess pursuant to section 11 of the
    Marihuana Medical Access Regulations, are exempt from the
    repeal of the Marihuana Medical Access Regulations and any
    other operation of the Marihuana for Medical Purposes
    Regulations which are inconsistent with the operation of the
    Marihuana Medical Access Regulations, to the extent that
    such an Authorization to Possess shall remain valid until
    such time as a decision in this case is rendered and subject
    to the terms in paragraph 2 of this Order;

    2. The terms of the exemption for the Applicants holding a
    valid Authorization to Possess pursuant to section 11 of the
    Marihuana Medical Access Regulations shall be in accordance
    with the terms of the valid Authorization to Possess held by
    that Applicant as of the date of this Order, notwithstanding
    the expiry date stated on that Authorization to Possess,
    except that the maximum quantity of dried marihuana
    authorized for possession shall be that which is specified
    by their licence or 150 grams, whichever is less;

    3. The Applicants who held, as of September 30, 2013, or
    were issued thereafter a valid Personal-use Production
    Licence pursuant to section 24 of the Marihuana Medical
    Access Regulations, or a Designated-person Production
    Licence pursuant to section 34 of the Marihuana Medical
    Access Regulations, are exempt from the repeal of the
    Marihuana Medical Access Regulations and any other operation
    of the Marihuana for Medical Purposes Regulations which is
    inconsistent with the operation of the Marihuana Medical
    Access Regulations, to the extent that the Designated-person
    Production Licence or Personal-use Production Licence held
    by the Applicant shall remain valid until such time as a

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