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
 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.
 In my view, there is little merit in the Defendant's
 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.
 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),
 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.
 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."
 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
JCT: Looks like we're on our way to 30-days!!!
 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.
 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
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!
 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.
 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.
 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
 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.
 Overall, in my view the balance of convenience favours
 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
 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
 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.
 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.
 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.
 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
 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.
 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
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
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