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:
 MMAr has long been repealed.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
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
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
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;
CR: ii. the attempt to re-litigate the plaintiffs' prior
claims is contrary to judicial comity or is an abuse of
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
JCT: What else are they going to do, admit they do?
CR: v. the claims are scandalous, frivolous and vexations;
b) if his claim is not struck without leave to amend,
whether Spottiswood should be ordered to provide security
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"
CR: 1) The Hathaway claims concerning the former ACMPR are
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
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
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
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
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
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
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