JCT: Judge Brown dismissed the Crown's motion to strike the
Statements of Claim of Jeff Harris and other plaintiffs on
Schedule A and granted an interim exemption for Jeff to
possess a 10-day supply like the B.C. Garber plaintiffs. And
is considering granting the same 10-day remedy to the other
The Crown has appealed his not striking the claims and for a
stay of the interim remedy granted to Jeff pending their
appeal. Justice Near's decision:
Citation: 2019 FCA 182
Present: NEAR J.A.
HER MAJESTY THE QUEEN
ALLAN J. HARRIS
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on June 14, 2019.
REASONS FOR ORDER
J:  In order to establish entitlement to a stay, the
Attorney General must show: (1) that there is a serious
issue to be tried, (2) that it would suffer irreparable harm
if the stay is not granted; and (3) that the balance of
convenience favours a stay (RJR MacDonald v. Canada
(Attorney General),  1 S.C.R. 311 at para. 43, 1994
CanLII 117 [RJR MacDonald]). I address each issue in turn.
I. Serious Issue
 The threshold for establishing a serious issue pending
appeal is low, and requires only that the party seeking the
stay establish that their appeal is not destined to fail or
that it is neither frivolous nor vexatious (RJR MacDonald at
para. 50). The Attorney General alleges that a serious issue
arises as the Federal Court erred in law and made palpable
and overriding errors of fact in finding that Mr. Harris
established entitlement to interim constitutional relief
from the application of certain provisions of the Cannabis
Regulations, SOR/2018-144, which impose a 150-gram limit on
the public possession and shipment of medical cannabis
authorized by a patient's health care practitioner.
 I would agree with the Attorney General's submissions
that a serious issue is raised in this matter given the
ongoing litigation in this and other cases concerning the
possession and shipment limits in question. In particular, I
am of the opinion that Mr. Harris may not have satisfied the
test for granting interim constitutional relief, which
requires that he establish: (1) a strong prima facie case;
(2) irreparable harm; and (3) that the balance of
convenience lies in his favour (R. v. Canadian Broadcasting
Corp., 2018 SCC 5 at para. 12,  1 S.C.R. 196; RJR
 In my view, Mr. Harris may not have established that he
would suffer irreparable harm as a result of the 150-gram
JCT: Even though Judge Brown said he had.
J: Evidence of irreparable harm must be "clear and
compelling" and "of a convincing level of particularity that
demonstrates a real probability that unavoidable harm will
result" if the relief is not granted (Hache v. Canada, 2006
FCA 424 at para. 11; United States Steel Corporation v.
Canada (Attorney General), 2010 FCA 200 at para. 7; Gateway
City Church v. Canada (National Revenue), 2013 FCA 126 at
JCT: Even if it's obvious, you have to show it in detail..
J:  It appears that the only evidence before the Federal
Court on Mr. Harris' motion was a three-paragraph affidavit
stating that Mr. Harris is authorized to use 100 grams of
cannabis per day. As the Attorney General submits, "there
was no other evidence as to his medical circumstances,
whether his condition is temporary or chronic in nature, or
the health impacts
JCT: Judge thinks cancer patients would be more persuasive
than mere arthritis patients. Looks bad that Judge Near
wants to play doctor.
J: or treatment alternatives available if he is unable to
access this quantity of cannabis pending this action"
(Written Submissions at para. 31).
JCT: He hasn't fully explained how not being to leave home
for more than 1.5 days harms his personal security. Has to
show how he could not work around a non-working regime, it's
not enough to just show it isn't working, have to show the
objectionable conditions it imposes on patients like Garber
did. Seems courts love nothing better than duplication.
J: Further, there was "no evidence [Mr. Harris] [.] cannot
use the various alternatives available under the Act and
Regulations for accessing cannabis while travelling" which
"[.] include shipping or having a designated or licensed
producer ship cannabis to his travel location, purchasing
cannabis from a provincially regulated online store or
retail outlet [.]."
JCT: Judge Brown found the alternatives not reasonable. But
maybe he didn't show enough of how the unreasonable
alternatives were not reasonable.
J: Absent this evidence, it is questionable whether it was
open to the Federal Court to find irreparable harm.
JCT: Maybe he didn't notice that the judge in Garber found
irreparable harm and Judge Brown quoted him. You know he
can't bring in the Garber precedent.
J: Given this conclusion it is unnecessary to consider the
other two elements, strong prima facie case and balance of
convenience, which are necessary to grant interim
constitutional relief. As such, I find that a serious issue
in this matter has been established.
JCT: It's a serious issue that Judge Brown didn't care what
sickness the person stuck at home had suffered. It was
established in Garber. But notice Judge Near didn't tackle
the reason used by Judge Brown: the Garber precedent.
J: II. Irreparable Harm
 The Attorney General alleges that by granting Mr.
Harris' request for a constitutional exemption, the Federal
Court's Order causes irreparable harm to the public
JCT: How is going back to the way it was harming the public
interest other than making its stewards look incompetent.
J: I agree.
JCT: Not using the new limit causes irreparable harm to the
public interest. "Irreparable!"
J: Irreparable harm to the public interest is presumed where
legislation is restrained (RJR MacDonald at para. 71).
JCT: So irreparable harm doesn't have to be shown, the court
accepts that irreparable harm is presumed!
J: Further, courts should not lightly order that laws
enacted for the public good are inoperable in advance of a
complete constitutional review, which includes section 1
justification if a breach is found (Harper v. Canada, 2000
SCC 57 at para. 9,  2 S.C.R. 764).
JCT: Echoing Crown arguments.
J:  I accept that the 150-gram public possession and
shipment cap was enacted as a measure intended to reduce the
increased risks of theft, violence and diversion associated
with possession of large quantities of cannabis, following
the objectives listed under section 7 of the Cannabis Act.
JCT: Har har har. We explained how the risk of theft,
violence are increased by more shipments and they have no
right to presume you are a risk of diversion.
J: Justice Phelan found in Allard v. Canada, 2016 FC 236,
 3 F.C.R. 303 (at para. 287) that the 150-gram limit
is rationally connected to these objectives. Nevertheless,
the Federal Court suspended the effect of the 150-gram limit
for Mr. Harris, and likewise indicated intent to do so in
respect of other high dosage claimants. In my view, this
restraining action may be presumed, following RJR MacDonald,
to harm the public interest as it prevents the Attorney
General from exercising its statutory powers as guardian of
the public interest.
JCT: Notice Judge Near can't face the Garber precedent.
J:  Moreover, I would accept the Attorney General's
submission that, given the Federal Court's stated intention
to grant similar exemptions to other high dosage plaintiffs
who claim to have medical authorization to use between 50
and 200 grams of cannabis per day, the interim
constitutional exemptions that he is inclined to grant may
result in judicial authorization of public possession and
shipment of up to two kilograms of cannabis. This would be
more than thirteen times the quantity authorized by the
JCT: One Garber plaintiff got the right to possess 1.67KG.
Wow, one of ours might carry 2KG. b
J: In addition, the Attorney General submits that there are
7,679 such individuals registered with Health Canada for
personal or designated production, which does not include
those registered to purchase cannabis from a licensed
JCT: Almost 7,000 other patients who can't leave home for
more than a few days.
J: If the constitutional exemption for Mr. Harris is
granted, there is a likelihood that others will seek and
obtain similar relief, with the effect that the 150-gram
limit will be effectively suspended for a large number of
people without undergoing a full constitutional review. In
these circumstances, it is my opinion that the Attorney
General has shown irreparable harm to the public interest.
JCT: It is irreparable harm to the public interest that the
high-dosage patients not be allowed the same relief as the
Garber Four in B.C.
J: III. Balance of Convenience
 Given my conclusions with respect to serious issue and
irreparable harm, it follows that the balance of convenience
favours granting the requested stay of Mr. Harris'
JCT: The balance of convenience favors no one able to get
the relief the Garbers got.
J:  For the reasons outlined above, I would grant the
Attorney General's motion without costs and order a stay of
paragraphs 5, 6, and 7 of the May 7, 2019 Order pending the
final decision of this Court on appeal.
"D. G. Near" J.A.
JCT: Notice the Crown had asked us to pay their costs of the
motion and it was denied. Pretty tough to take away a man's
freedom from quasi-home-arrest for no crime and stick him
with the bill.
But let's just say that Justice Near has found that capping
it like they used to cap it would cause irreparable harm...
which it had not caused during the 15 years of the MMAR.
And notice that he couldn't deal with the Garber precedent,
just ignored it and decided as if it hadn't been there. By
ducking Garber who provided all the facts about their
illnesses so we should no longer have to, he's trying to say
we have to repeat all of the same evidence they did and not
rely on them as precedent.
And he ducked mentioning Jeff got how much Garber were
granted and still wants how much it used to be under the
And notice he didn't deal with the expense of so many postal
shipments as an obvious form of financial damage. But it
would irreparably harm to the public interest if they
weren't paying so much to Canada Post for 10, 20, 30, 40
shipments every month!!
I feel sad for what he has done to punish 7,000 sick people.
Because that's the number who will benefit when we strike
the cap. God'll get him.
UPON MOTION for an Order staying paragraphs 5, 6 and 7 of
the Order of Justice Brown dated May 7, 2019, in Court File
No. T-1765-18 pending the determination of the appeal of
that decision to this Court;
AND UPON reviewing the material submitted by the parties;
IT IS HEREBY ORDERED that the request for a stay of
paragraphs 5, 6 and 7 of Justice Brown's Order dated May 7,
2019 is granted without costs pending the determination of
the appeal of that decision to this Court for reasons issued
"D. G. Near" J.A.
JCT: Now, this doesn't mean that the 3-judge panel are going
to overturn Judge Brown to not give Jeff his exemption back
if they let the actions proceed. Because in the end, they
are dependent on showing the 150-gram limit makes sense, not
just because the government wants it.
Besides, all we have to do is change to claims to insert all
the irrelevant stuff they say they need to see. So sure,
let's tell them about all our ailments and the sufferings
the cap has imposed on people. Even how it made you break
the law when you bought more than that for the discount and
carried it home illegally. No one likes to be a criminal if
they can avoid it.
People ask me why I keep fighting so many loser fights. It's
because I love ruining the careers of the judges and Crowns
who get added to the History Wall of MedPot Shame. The
people who contributed to its prohibition. What they did can
never be erased and will shame their careers in the eyes of
a wiser posterity. Especially those judges whose decisions
kept the prohibition alive to keep denying dying patients
their life-saving meds. This is just keeping patients
chained to their homes, not quite so deadly.
So now, it's 6 months for appeal preparation and plenty of
time for a lot more people to file Statements of Claim below
to join Jeff before Judge Brown demanding the 150-gram limit
be struck allowing the old 3 days and the 10-day supply
pending the appeal. Let the Court know they'll be cutting
remedy to not just the current four but many many more. If
all the 7,000 50+ grammers signed on, it would be tougher to
deny them release from the bondage to their homes. http://johnturmel.com/ins150.pdf has the instructions
BIG HARRIS DELAY APPEAL JUNE 27 VANCOUVER
Finally, on Thursday June 27, 2019, Jeff's Big Appeal for
restitution of the time short-changed from the permits of
the over 300 plaintiffs seeking damages for the delay will
be heard in Vancouver. Not only is losing half a permit
period when the medical documents cost thousands not
trivial, but the remedy of having the programmer add the days
improperly subtracted from the early permit to the latest
permit is too trivial not to be granted. Why would the court
let them get away with a minor violation when there is such
a minor fix. If the fix were not so trivial, okay, maybe
trivial should matter. But when it involves adding back the
days they wrongly subtracted, that's too easy?
And the Crown wants the actions dismissed by the Court of
Appeal because their telling Judge Brown the actions were
frivolous without offering any proof or arguments should
Brown said he wasn't ruling it frivolous just because they
said so in one lousy paragraph!!
So will the Court of Appeal find their saying so should have
been enough and that Judge Brown shouldn't have expected any
arguments at all? Tough call.
We'll make sure Jeff asks the Court for permission to post
the audio recording of the hearing on-line for other
plaintiffs to hear unless the Court orders the Registry to
send one to all 300 of them! It should be quite the show.