• TURMEL: Crown Motion to strike 150-gram & 1-year permit challenges (2/6

    From John KingofthePaupers Turmel@1:229/2 to All on Mon Dec 31 17:10:46 2018
    [continued from previous message]

    Hathaway ("Hathaway"), brought constitutional challenges in
    this Court to the MMAR and MMPR.27 The claims were based on
    "kits" downloaded from the website of medical cannabis
    activist John Tunnel.28 As detailed below, each of the
    claims was struck without leave to amend.

    JCT: Notice they don't mention what was claimed.

    CR: 1) Prior claims by Harris and Spottiswood

    18. Harris and Spottiswood brought "kit" claims alleging
    that several provisions of the MMAR and MMPR - including the
    production site limits in the MMAR, the 150 gram possession
    limit in the MMPR, and the requirement in both regulations
    for annual medical authorization - infringe the section 7
    rights of medical cannabis patients.29
    June 4 2014 Ruling Phelan

    JCT: The Phelan decision is in the book of authorities Tab
    14 & 15 p331

    19. The Court initially stayed the claims pending Allard.30

    JCT: Notice they just won't say why, to see if the Allard
    makes it unnecessary for them to be heard if mooted.

    CR: Following Allard, Canada brought a motion to strike. On
    January 11, 2017, the Court granted Canada's motion and
    struck the claims without leave to amend. The claims were
    struck on the grounds that they were moot, failed to
    disclose a reasonable cause of action, and were frivolous,
    vexations and an abuse of process.31
    31 Order & Reasons of Phelan J. paras 12, 22-44 DBOA Tab 15

    JCT: If they were moot, then the court did not hear any
    argument on them about whether they were frivolous or not to
    demand their grows back just because their doctor said they
    had medical need. Phelan had said:
    [23] MMAr has long been repealed. MMPR was declared
    invalid and replaced by ACMPR. The lis or interference
    with cons rights under MMAR & MMPR ended.

    CR: The plaintiffs did not appeal this decision.32

    JCT: And if we had, the Crown would have argued that we
    could not because the judge was right not to hear them when
    they were mooted with MMPR struck down.

    CR: However, in the course of his claim, Spottiswood
    appealed two other interlocutory decisions which resulted in
    two costs awards against him of $500 each.34 These costs
    remain unpaid.34

    2) Prior claim by Hathaway

    JCT: Provisioners of juice and oil are exempt

    20. In June 2016, Hathaway also commenced a claim in this
    Court. The claim alleged that non-dried forms of cannabis
    remained unavailable despite the Supreme Court of Canada
    decision in R v Smith,35 and sought a declaration that the
    CDSA was accordingly unconstitutional.36

    JCT: Not that the CDSA was unconstitutional but that the
    prohibitions on marijuana were, not on meth. Notice that
    it's the first time the Crown mentions that we asked to
    strike the the CDSA prohibitions as invalid absent a valid
    medical exemption which Allard did not.

    CR: 21. Canada brought a motion to strike the claim. On
    August 17, 2016, this Court (Zinn J.) granted Canada's
    motion and struck the claim without leave to amend on the
    grounds that it failed to disclose a reasonable cause of
    action.37

    JCT: Having the right to juice with no juice legally
    available did not disclose a reasonable cause of action!
    Besides, that a judge does not see doesn't mean not true,
    just that he was blind or had his eyes closed.

    CR: On October 11, 2016, the Court (Aalto, Proth.) struck
    several virtually identical claims, including one by Harris,
    again without leave to amend.38 Once again, the plaintiffs
    did not appeal.39

    JCT: Wonder what the difference was between the virtually
    identical claims.

    CR: B. THE PRESENT CLAIMS

    1) The Hathaway and Harris claims

    22. On September 24, 2018, Hathaway filed the present claim
    (the "Hathaway claim"). The claim alleges that the plaintiff
    has an inoperable tumor on his spine, and is authorized to
    use 100 grams of cannabis per day.40 The claim seeks
    declarations that unspecified "extreme limitations" on non-
    dried forms of cannabis and the 150 gram possession and
    shipping limits in the former ACMPR violate sections 7 and
    15 of the Canadian Charter of Rights and Freedoms
    ("Charter"). In addition, the claim seeks a general
    declaration that limits on the number of patients that may
    share a production site unduly restrict access to cannabis
    for medical purposes.41

    JCT: Correct me if I'm wrong but a search of the Hathaway
    Statement of Claim in the http://johnturmel.com/150cm11.pdf
    showed no mention of the claim to strike down the 4 licenses
    per site regulation. So far, no one has filed that Statement
    of Claim so I wonder why they're talking about it.

    CR: 23. On October 3, 2018, Harris filed a claim (the
    "Harris claim"). The claim alleges that the plaintiff is
    authorized to possess 100 grams of cannabis per day and is
    currently registered with Health Canada for personal or
    designated production.42 It contains no additional
    information about his circumstances. Like the Hathaway
    claim, the Harris claim initially sought a declaration that
    the 150 gram possession and shipping limits in the former
    ACMPR violated sections 7 and 15. The Harris claim was later
    amended to instead reference the current Regulations.43

    24. Five other plaintiffs have also filed claims challenging
    the 150 gram possession and shipping limits in the former
    ACMPR.44 By Order dated November 1, 2018, the case-
    management judge, the Honourable Mr. Justice Brown,
    designated Hathaway and Harris as lead plaintiffs and
    ordered them to amend their claims by November 14 to
    reference the current Regulations rather than the former
    ACMPR.45 While Harris filed an amended claim, Hathaway
    failed to do so.

    JCT: Ray's claim included several torts and I wanted them
    dealt with one at a time. So I asked Ray not to file an
    amended claim but let it be dismissed or abandoned and then
    refile a unique one against the 150 grams, a unique one
    against the annual, a even a unique one against the 4
    licenses per site. So far, no grower has filed that kit. And
    so, without hearing the arguments based on Hitzig,
    Sfetkopoulos and Beren, they're trying to get that issue
    dismissed without us presenting a case. http://insdp.pdf has
    instructions for it. Doesn't a grower want to grow for a
    dozen small dosers? Takes just one guy to raise that point
    before they try to get it struck without us ever raising it.

    CR: 2) The Spottiswood claim

    25. On October 31 , 2018, Spottiswood filed a claim (the
    "Spottiswood claim"). The claim alleges that the plaintiff
    has an unspecified permanent medical condition and is
    registered with Health Canada for either personal or
    designated production.46 The claim seeks a declaration that
    s.273(2) of the Regulations, which requires annual health
    care practitioner authorization to use cannabis, violates
    the section 7 rights of permanently-ill patients.47

    26. The Spottiswood claim is being collectively case-managed
    with the Hathaway and Harris claims. The Court has granted
    leave for Canada to file a single motion record in support
    of a motion to strike all three claims.48

    PART 11 - ISSUES

    27. The issues on this motion are

    a) whether the claims should be struck without leave to
    amend on the grounds that;

    i. the Hathaway claims concerning the former ACMPR are moot;

    JCT: OK.

    CR: ii. the attempt to re-litigate the plaintiffs' prior
    claims is contrary to judicial comity or is an abuse of
    process;

    JCT: They were dismissed by being mooted by Allard.

    CR: iii, the Harris and Spottiswood claims concerning
    possession limits and annual medical authorization are
    contrary to judicial comity;

    JCT: Depends if the Harris 150 gram issue was dismissed by
    being mooted by Allard or not and whether the annual medical
    authorization was dismissed by the MMPR being struck down or
    not. We never got the chance present the argument against
    yearly visits for permanently-ill patients. We'll ask the
    Crown to reproduce where any court said that.**

    CR: iv. the claims fail to disclose a reasonable cause of
    action; or

    JCT: What else are they going to do, admit they do?

    CR: v. the claims are scandalous, frivolous and vexations;
    and

    b) if his claim is not struck without leave to amend,
    whether Spottiswood should be ordered to provide security
    for costs?

    JCT: Should someone's quest for justice be thwarted because
    he couldn't pay past court costs? I once was suing a TV
    station for inequitable time and they pointed out a dozen
    times I'd sued them and had not paid their costs. I told
    Justice Montgomery (I think over 30 years ago in 1985) that
    the important issue of democracy shouldn't be burdened with
    money issues and he let it in. So let's hope this court
    won't let the important issue of medical treatment isn't
    burdened by money issues either.

    CR: PART III - SUBMISSIONS

    A. THE CLAIMS SHOULD BE STRUCK WITHOUT LEAVE TO AMEND

    28. The claims should be struck without leave to amend.
    First, the Hathaway claims concerning the former ACMPR
    should be struck as moot. Second, the plaintiffs' attempts
    to re-litigate their previous claims should be struck as a
    matter of judicial comity and an abuse of process.

    JCT: Not if they were mooted by the downing of the MMPR.

    CR: Third, the Harris and Spottiswood claims should be
    struck as a matter of judicial comity in that they raise
    constitutional issues that have already been decided by this
    and other courts.

    JCT: I have never had the chance to get the "objection to
    annual" argued and I'd remember if some court ever heard me
    on the statistical survey frauds. Remember, we complained to
    the RCMP and their statistical forensic experts didn't do
    anything so they're not very expert.

    CR: Fourth, the claims fail to disclose a reasonable cause
    of action and are scandalous, frivolous and vexations.

    JCT: It always seems that way to the "can't admit it"
    closed-eyes people.

    CR: 1) The Hathaway claims concerning the former ACMPR are
    moot

    JCT: How many times are they going to repeat it?

    CR: 29. The Supreme Court of Canada has set out a two-step
    test for deciding whether a claim is moot. At the first
    step, the court must decide whether the case is moot in the
    sense that a decision will have no practical effect on the
    rights of the parties. If moot, the court must then consider
    whether there are any reasons to nevertheless hear the case
    on its merits.49

    30. The Hathaway claim seeks declarations that unspecified
    limitations on non-dried forms of cannabis and the 150 gram
    possession and shipping limits in the former ACMPR are
    unconstitutional. Since the claim was filed, the ACMPR have
    been repealed. The requests for relief are therefore clearly
    moot.

    31. There are no reasons to hear the claim in spite of its
    mootness. Although the current Act and Regulations mirror
    the former ACMPR in several respects, the current scheme
    includes features that significantly expand access to
    cannabis, including the right to possess an additional 30
    grams of cannabis, the narrowing of the possession limits to
    encompass only public possession, and the elimination or
    storage limits. A judicial pronouncement on the
    constitutionality of the former scheme would serve little
    purpose but would consume judicial and public resources that
    could be better spent assisting the parties to live
    disputes. The claims concerning the former ACMPR should
    therefore be struck.

    2) The plaintiffs are attempting to re-litigate prior claims

    JCT: Judge Phelan did say in Para.28: "Any problems with the
    new regime should be handled directly in claims under or
    against the ACMPR" so the dismissal of claims he did not
    hear on the merits mean nothing. Amazing how they try to
    twist it to that meaning.

    CR: 32. The plaintiffs have previously commenced claims
    concerning the issues raised in these actions.

    JCT: Yes, the 150 grams cap and 1-year cap were raised but
    never argued nor adjudicated on the merits when mooted by
    Allard.

    CR: Their claims were struck by this Court without leave to
    amend, and the plaintiffs did not appeal.

    JCT: Same card repeated..

    CR: The plaintiffs' attempts to re-litigate these issues are
    contrary to judicial comity and an abuse of this Court's
    process.

    JCT: Same card repeated.

    CR: 33. The Federal Court of Appeal has characterized
    judicial comity as an aspect of stare decisis. Like stare
    decisis, comity is intended to promote consistency,
    predictability in the law, and efficient judicial
    administration. Comity provides that, although not strictly
    binding, prior decisions of the same Court are deserving of
    considerable respect and should be departed from only where
    there are "strong reasons," also sometimes described as
    "cogent reasons," for doing so.51

    34. Strong reasons does not simply mean better arguments.
    Rather, the party requesting a departure from a prior
    decision must establish either that subsequent decisions
    have affected its validity,

    JCT: The subsequent Garber decision granting high-dosers a
    10-day supply so one 167-gram/day patient now has a
    possession limit of over 1.6Kg did affect its validity.

    CR: that the prior decision failed to address some binding
    case law or statute, or that the prior decision was
    unconsidered

    JCT: The fact that the 150 grams and annual were
    unconsidered by the mootness of no MMPR..

    CR: or given in circumstances where trial exigencies did not
    allow for full argument.52

    JCT: The stay pending Allard was the exigency that did not
    allow for ANY argument, let alone full argument! Har har
    har.

    CR: 35. The Court may also strike a claim on the grounds
    that it is an abuse of process.53 Abuse of process operates
    to bar proceedings where the strict requirements of res
    judicata arc not met but where a party nevertheless attempts
    to re-litigate issues in a manner that has the potential to
    undermine the integrity of the administration of justice.54

    JCT: Unless it wasn't litigated because it was mooted by no
    more MMPR. Imagine if this were a live debate. Like a boxing
    match, every time they say something silly, I slap them in
    the hear. They repeat, I repeat. How many times can they say
    that the 150 and Year caps have been dismissed on the merits
    when they were never adjudicated!
    I guess the Response will have to go like:
    8 times, Crown said that they were litigated and they were
    not. WERE THEY LITIGATED IN ORDER TO BE NOW RE-LITIGATED?

    CR: As the Supreme Court of Canada noted in Toronto v CUPE,
    if a matter is re-litigated and the same result is reached,
    re-litigation will have been a waste of resources and
    judicial economy will be undermined. Conversely, if a
    different result is reached, the inconsistency will
    undermine the entire judicial process by diminishing its
    authority, credibility and aim of finality.55 Both outcomes
    are to be avoided.

    JCT: Show us the litigation of the 150 and Year issues..

    CR: 36. The abuse of process rule is not absolute. Courts
    retain discretion to allow re-litigation where the prior
    proceeding was tainted by fraud or dishonesty,

    JCT: We raised how the 150-gram cap was 9 times too low when
    they fraudulently wrongly estimated the 18 grams per day
    actual average use to 1-3grams/day. How do you mis-estimate
    by a factor of nine when you have the actual average use and
    why use an estimate at all when you have the actual mean
    unless it is to deceive.

    CR: previously unavailable evidence impeaches the original
    result,

    JCT: Manson did not have the statistical analysis of how
    they estimated 1-3 grams when the actual mean was 18! Only
    Judge Phelan had been seen the case of the Numerous Filings
    where my Mathematics of Gambling Expert Report showed how
    the under-estimates had been engineered. So you can bet he
    didn't want to have me argue the 9-times too low limit and
    so more reason to see that it was dismissed because it was

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    * Origin: www.darkrealms.ca (1:229/2)