• TURMEL: Court of Appeal stays Harris 10-day supply pending appeal

    From John KingofthePaupers Turmel@1:229/2 to All on Sun Jun 16 16:17:27 2019
    From: johnturmel@gmail.com

    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
    plaintiffs.

    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:

    Date: 20190614
    Docket: A-175-19
    Citation: 2019 FCA 182
    Present: NEAR J.A.
    BETWEEN:
    HER MAJESTY THE QUEEN
    Appellant
    and
    ALLAN J. HARRIS
    Respondent

    Dealt with in writing without appearance of parties.
    Order delivered at Ottawa, Ontario, on June 14, 2019.

    REASONS FOR ORDER

    NEAR J.A.

    J: [1] 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), [1994] 1 S.C.R. 311 at para. 43, 1994
    CanLII 117 [RJR MacDonald]). I address each issue in turn.

    I. Serious Issue

    [2] 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.

    [3] 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, [2018] 1 S.C.R. 196; RJR
    MacDonald).

    [4] In my view, Mr. Harris may not have established that he
    would suffer irreparable harm as a result of the 150-gram
    limit.

    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
    para. 16).

    JCT: Even if it's obvious, you have to show it in detail..

    J: [5] 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

    [6] 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
    interest.

    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, [2000] 2 S.C.R. 764).

    JCT: Echoing Crown arguments.

    J: [7] 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,
    [2016] 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: [8] 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
    Regulations.

    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
    producer.

    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

    [9] 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'
    constitutional exemption.

    JCT: The balance of convenience favors no one able to get
    the relief the Garbers got.

    J: [10] 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
    MMAR!

    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.

    ORDER
    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
    concurrently.
    "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
    have sufficed.

    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.

    --- SoupGate-Win32 v1.05
    * Origin: www.darkrealms.ca (1:229/2)