• TURMEL: Crown Motion to strike 150-gram & 1-year permit challenges (3/6

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

    mooted and not because I couldn't convince him that coming
    up with 9-times too low estimate when they had the truth was
    crooked. So Phelan never adjudicated the underestimate which
    we have raised again herein, he used "no MMPR so moot" as
    his out. But he left the tort to continue in the next regime
    while reminding us we can complain about it again.

    CR: or differences in the two proceedings are such that it
    would be unfair to apply the prior findings in the new
    case,56

    JCT: Sure it would be unfair to apply the prior findings of
    a judge who wasn't aware of how they underestimated the true
    average for him to a judge who will now adjudicate the 9-
    times too low claim. Maybe he forgot the actual 18 gram
    average when he accepted the 1-3 gram estimate.

    CR: 37. The present claims should be struck both as a matter
    of judicial comity and as an abuse of process. Like the
    present claims, the prior Harris and Spottiswood claims
    challenged the constitutionality of the prohibition on more
    than four patients sharing a production site,

    JCT: The sites issue isn't raised anywhere herein... but
    they know it's coming.

    CR: the 150 gram possession and shipping limits, and the
    requirements for annual medical authorization to use
    cannabis.57

    JCT: Yes, the challenges are to those two conditions.

    CR: In striking the claims, Phelan J. noted that they
    contained a "dearth of detail" concerning the plaintiffs'
    personal circumstances and held that they failed to disclose
    a reasonable cause of action.58

    JCT: We gave him their MMAR Authorization Number to prove
    medical need and Judge Phelan wanted to know about the
    patients' medical conditions. I told him to shove it, he d
    didn't need to know what they had.

    But under the heading:

    CR: Mootness

    He held that the claims were also frivolous and vexatious
    both in failing to disclose material facts and in their use
    of language that was "overblown, insulting and
    argumentative.

    JCT: So it really matters if Phelan wanting to play doctor
    was legit. Did he really need to see the patient's medical
    records in order to accept the doctor's opinion?

    CR: Lastly, he found the claims raised matters of "settled
    law" concerning the medical authorization requirements,
    which was an abuse of process.60

    JCT: Yes, we did raise that point too that patients should
    not be at the mercy of ignorant and recalcitrant doctors to
    be gate-keepers for something they haven't studied. Why not
    plumbers?

    But we also raised that patients with permanent diseases
    should not have to see doctors annually! So needing a doctor
    is settled law right now but annually is not. The annually
    was never dealt with though the doctors are gate-keepers was
    dismissed as such. Notice how they mention the gate-keepers
    was dismissed and then try to mislead the court into
    thinking the annual doctor visits was also established law.

    CR: 38. Phelan J. refused leave to amend. He noted that the
    plaintiffs were given opportunities to amend their claims,
    but had failed to do so. He held that a further opportunity
    to amend would be "unjust" in these circumstances.61

    JCT: Yes, he did give the the patients the time to strip so
    he could examine them, but I held that their doctor's
    opinion should be enough for him, so he was really pissed at
    not getting to use his new stethoscope.

    CR: 39. The Hathaway claim also raises issues that were
    raised in his prior claim. The prior claim alleged that,
    despite the decision in Smith, non-dried cannabis
    derivatives such as juice and oil remained practically
    unavailable.62 This claim was struck for failure to disclose
    a reasonable cause of action and without leave to amend.63

    JCT: Repetition about the Justice Zinn not seeing. But of no
    consequence to my juice case under the Cannabis Act. What do
    I care what some judge ruled about under Ray's ACMPR? I'm
    under the new "CAR" "Cannabis Act & Regulation" with the
    right to use it for recreation backing my right to use it
    for medication. They've moved to strike that one too. Too
    bad I'm healthy and no one who's sick has filed for the
    right to get juice.

    CR: 40. Judicial comity demands that the claims be struck.
    The plaintiffs have identified no reasons, cogent or
    otherwise, why the Court should depart from its prior
    decisions. Indeed, the new claims barely acknowledge the
    prior claim at all. It appears the plaintiffs have either
    forgotten that their prior claims were struck, or that they
    are hoping this Court will simply ignore its prior
    decisions.

    JCT: Or that they were not dealt with because the MMPR was
    struck and didn't need any more litigation. We could deal
    with those torts again in the new legislation as Phelan
    advised. Not our fault that Justice Phelan said that
    striking the MMPR meant the "annual" beef was now gone when
    they were just going to put it back again anyway. That's
    what he gets for not dealing citing our issues in the
    strike-down, we bring them back later.

    CR: 41. The claims are also a quintessential abuse of
    process. It was open to the plaintiffs to appeal the orders
    striking their prior claims.

    JCT: It was open to appeal against declaring the claims
    mooted by the striking down of the MMPR. Something they
    might do. But the Crown would have then argued it was
    improper to appeal. So they know it's improper to appeal but
    knock us for missing the chance to go the appeal route. More
    Lawying.

    CR: They declined to do so, but now attempt to circumvent
    those orders with new claims concerning the very same
    issues.

    JCT: We'll have to point out that they have not cited
    anywhere where the annual or 150 fraud allegation was
    adjudicated.**

    CR: If allowed to proceed, the claims would consume scarce
    judicial and public resources on matters that have already
    been decided,

    JCT: No, that's lawying. Where? The matters have not been
    decided, they have remained undecided by the mootness by
    striking down the MMPR. They keep repeating, I keep
    slapping.

    CR: and would create a risk of inconsistent outcomes that
    would undermine finality and consistency.

    JCT: No risk of inconsistent outcomes when there was no
    outcome the first time.

    CR: 42. There is no suggestion that the prior proceedings
    were tainted by fraud, that it would be unfair to apply the
    prior findings in this case,

    JCT: Sure, apply the prior findings when you find them to
    show to the court.

    CR: or that the plaintiffs have previously unavailable
    evidence.

    JCT: The under-estimate evidence is previously unavailable
    evidence and available only to Justice Phelan, not Manson.

    CR: Although the Harris claim alleges that the cannabis
    possession limits are based on "fraudulent" Health Canada
    data,64 his prior claim included similar allegations and
    Harris acknowledges that the evidence of this alleged fraud
    was before Phelan J. when he struck the plaintiffs prior
    claim.65

    JCT: Even more reason to conclude that Phelan had not
    focused on the fraudulent estimate of 1-3 for an 18 gram
    population which Manson had accepted. Does the Crown really
    want to argue that the judge was apprised of the false
    statistical surveys that duped Justice Manson and didn't do
    anything to correct the mathematical error. Or did he not
    bother and rely on not getting to play doctor as his out to
    say he needed more evidence of their medical need than
    Health Canada's medical authorization.

    CR: Although the Harris claim also includes a new allegation
    concerning section 15, there is no reason that the plaintiff
    could not have raised this issue before. It would be a
    further abuse of process if plaintiffs could re-litigate
    issues simply by framing them as new causes of action.

    JCT: So all we need is for one of the other 150 gram
    plaintiffs to not have been a Gold Star back in 2014! Har
    har har. It's not fair that some get 30 day supply so it's
    not equal treatment under the law to only get 3 or 2 or 1 or
    less days. And even if Harris did not argue S.15 back in
    2014 when Phelan did not deal with it anyway, there are 5
    more plaintiffs who were not there then and are raising the
    S.15 equality right now. What's their argument not to allow
    them to rely on S.15 even if they succeed in not letting
    Jeff? Talk about winning something that doesn't win.

    CR: 3) Courts have previously affirmed constitutionality of
    the possession limits and annual medical authorization
    requirement.

    JCT: Sure, medical authorization requirement has often been
    ruled on but not the annual! That's never been ruled on.
    Lots of judge have affirmed that it should be prescribed by
    a doctor but no judge ever said I think it's smart that
    permanently-ill patients have see their doctor every year.
    Name one.**

    CR: 43. The Harris and Spottiswood claims are contrary to
    judicial comity in a second respect. This Court has
    previously affirmed the constitutionality of a 150 gram
    possession limit,

    JCT: Yes, we know this court imposed the 150 gram cap and BC
    Superior Court disposed of it. But those are the only two
    courts who have adjudicated the issue, without the case made
    against using the statistical under-estimate for the known
    mean. Wish they had a citation for any courts did back
    Manson's 150 gram limit. The only other court ruling on the
    150-gram limit was in Garber who found that a 150 cap on
    people with more than 150-gram per day was not proper. So
    only 2 courts ever dealt with the 150-gram possession limit
    but Allard and Garber courts.

    But it does indicate that the issue is not frivolous,
    vexatious or an abuse when there is a contrary ruling
    elsewhere from a provincial Superior Court.

    CR: and several courts, including this one, have
    consistently affirmed the constitutionality of requirements
    for physician authorization to use cannabis for medical
    purposes.

    JCT: Again, physician authorization affirmed but not annual!
    Har har har. Sure, we lost trying to get rid of the doctors
    but Phelan did not rule on the 1-year max. It was one of
    those we could raise under the ACMPR. But sure, doctors as
    gatekeepers has been often affirmed no matter how wrong.

    CR: The plaintiffs have identified no reason why this Court
    should depart from these decisions. The claims should be
    struck on this ground, as well.

    JCT: We agree "doctor is needed" is affirmed but argue that
    it does not carry to "therefore annual" is affirmed.

    CR: a) The 150 gram possession limit

    44. In Allard, this Court considered the constitutionality
    of the 150 gram possession limit in the MMPR. The Court held
    that the limit was constitutional. In so doing, Phelan
    J. noted:
    [286] ... Specifically, the Plaintiffs argue that the
    150 gram possession restriction limits their freedom of
    movement and ability to travel; that the state does not
    have a legitimate interest in this prohibition; and that
    it does not acknowledge those who possess it safely
    without endangering others,
    [287] I agree with the Defendant, in the section 7
    analysis, that the burden is on the Plaintiffs to
    establish that the 150 gram possession limit impacts
    them in a significant way.
    Although the Plaintiffs may have to purchase their
    marihuana more frequently and restrict the number of
    days they travel or transport the drug because of this
    restriction,

    JCT: He wasn't discussing whether the 150 gram cap
    genocidally undermedicated by a factor of 9, he discussed
    whether it impeded travel and forced them to purchase more
    frequently. Not life and death undermedication, but trivial
    reasons in comparison to genocide. He wanted them to explain
    how being undermedicated by a factor of 9 impacted them in a
    significant way. He just couldn't estimate on his own.
    Maybe Judge Phelan would have seen how the 150-gram
    possession limit impacts better if one of the Plaintiffs'
    had had a prescription of more than 150 grams.

    the cap is not over-broad or grossly disproportionate

    JCT: Not being allowed to carry even one day's prescription
    doesn't seem over-broad or grossly disproportional. He was
    dealing with people who had a minimum of 6 days permit @ 25.

    because it bears a connection to the objective - it
    reduces the implied risk of theft, violence and
    diversion for which there has been no substantial or
    persuasive evidence.
    [288] Overall, this restriction is significantly
    different than the restriction on cultivation as the
    cultivation restriction is a complete ban without
    minimal impairment that affects individuals adversely to
    the legislation's objective. The possession cap still
    allows one to possess more than their necessary amount
    of marihuana.86

    JCT: It didn't under the MMAR, MMPR, ACMPR! The possession
    cap supposedly allowed 200-grammer Art Jackes T-1784-18 to
    get his necessary amount of marijuana in only 40 shipments a
    month. Phelan's decision was "Per incuriam" in that things
    that ought to have been considered obviously were not. He
    was unaware that the possession cap does not "allow one to
    possess more than their necessary amount of marijuana" just
    because the 25-grammer did. Is less than a day's supply
    "their necessary amount."

    CR: 45. Harris now attempts to re-litigate this issue but
    has identified no cogent reason why this Court should depart
    from its decision in Allard.

    JCT: A new ruling from B.C. is one good reason why this
    Court should depart from its decision in Allard as well as
    the new information about the statistical fraud used to
    under-medicate the masses by a factor of 9.

    CR: There is no suggestion that Allard failed to address
    some binding case or legislation, or that subsequent cases
    or legislation have undermined its validity.

    JCT: Could they have missed how Garber undermined its
    validity by disposing of it and imposing a more judicious
    limit? But the Crown does not see.

    CR: Indeed, as detailed at paragraph 31 above, subsequent
    legislation has significantly expanded patients' ability to
    possess cannabis. Any impact on Charter rights is even less
    now than at the time of Allard.

    JCT: The Cannabis Act adds the 30 grams of recreational to
    the 150 grams maximum. Still does not solve Art Jackes' 200
    gram conundrum.

    CR: 46. The Allard decision followed a lengthy trial and was
    based on a large volume of evidence, including evidence and
    submissions specifically concerning the 150 gram possession
    limit and its impact on patients.67

    JCT: And John Conroy missed how they fraudulently lowered
    the known 18 gram average to the estimated 1 to 3 gram! Har
    har har. The Great Canadian Gambler caught the scam.

    CR: Following the trial decision, the Allard plaintiffs
    brought a motion for reconsideration of several aspects of
    the decision, including the 150 gram limit.

    JCT: They asked to strike both the "150 gram limit or 30x
    daily dose!" The Allard Statement of Claim sought
    e. A Declaration that the provisions that specifically
    restrict the amounts relating to possession and storage
    by patients, including the "30 x the daily quantity or
    150 gram maximum, whichever is the lesser" are
    unconstitutional.

    CR: So Allard sought to strike the "30-day or 150 gram
    maximum." Bad drafting to aim at both limits. We only seek
    to strike the "150 gram maximum" only to get the "30-day
    maximum" as small-dosers. Har har har har har har. Of course
    they're not going to strike the 30-day maximum and never the
    30-day or 150 gram max.

    CR: The Court dismissed the motion, noting that the 150 gram
    limit was "not accidentally omitted or overlooked" in the
    trial decision but expressly considered and determined to be
    constitutionally sound.68

    JCT: No, he dismissed the motion asking for "A or B" so that
    the "30x daily dose or 150 grams" was not unsound
    constitutionally.


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