• TURMEL: Crown Motion to strike 150-gram & 1-year permit challenges (5/6

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

    discrimination between high- and low-dosers.

    CR: The Regulations permit the public possession of 30 times
    a patient's daily authorized quantity of cannabis, to a
    maximum of 150 grams (in addition to a further 30 grams
    under the Act).

    JCT: Thanks, we almost forgot.

    CR: While the practical effect of these public possession
    limits is that patients using larger daily quantities may
    possess a shorter supply while in public,

    JCT: Yes, the day and half for Jeff is shorter than the 30
    days for some others.

    CR: the claim does not allege that this public possession
    limit fails to respond to the plaintiffs capacities

    JCT: The limit fails to respond to the plaintiff's
    capacities as judged by his doctor.

    CR: or perpetuates existing disadvantage relative to so-
    called "small dosers." The section 15 claim should therefore
    be dismissed.

    ii) The requirement for annual medical authorization
    (Spottiswood)

    74. The Spottiswood claim comprises three short paragraphs.
    The sum total of the factual allegations are that the
    plaintiff has a permanent medical condition for which he was
    authorized to use cannabis under the former MMAR.111

    JCT: It says:
    2. The Plaintiff has Authorization ________________ to
    use cannabis for a permanent medical condition.

    What more do they need? What his permanent illness is can
    always come later in his affidavit.

    Note 111 Spottiswood Statement of Claim, para 2 [DMR, Tab 4,
    p 51] The claim notes that the plaintiff has authorization
    number APPL-MKS-06-S17471115-58-13-B. This is a Personal Use
    Production Licence Number under the former MMAR. In the
    course of Allard, this Court issued an injunction, which
    remains in place and preserves MMAR authorizations to
    possess and licences to produce that were valid on the dates
    specified in the injunction order (Allard Injunction
    Decision |DBOA, Tab 1]). This Court has confirmed that
    Spottiswood meets the criteria of the Allard injunction
    order (July 9, 2014, Amended Order of Phelan J., para 1 and
    Schedule [DBOA, Tab 14]). The plaintiff is therefore
    currently authorized to possess and produce cannabis in
    accordance with his prior MMAR authorization and licence,
    and without R.irthcr medical authorization. His section 7
    rights are thus not engaged by the requirement for annual
    medical authorization.

    JCT: Good argument. He wants to move which would mean giving
    upo his MMAR and going with the CR (Cannabis Regulations)
    but until he does, he may not qualify. Another reason we
    need someone else to file http://johnturmel.com/insyear.pdf
    to strike down the annual doctor visits very soon.

    CR: However, the plaintiff does not allege that he has a
    current medical authorization to use cannabis, and provides
    no facts concerning the requirement for annual medical
    authorization or how it impacts his section 7 rights.

    JCT: The Plaintiff has Authorization... means now. But it's
    an MMAR..

    CR: 75. If he is simply alleging that he should not have to
    visit a health care practitioner once a year, this
    inconvenience does not engage the Charter. In Harris v
    Canada, the plaintiff alleged that Health Canada's former
    practice of "back-dating" registration certificates for
    personal and designated production to the date of a
    patient's medical document resulted in patients having to
    visit their doctors more often. In striking this aspect of
    the claim, the Court noted that government permits are often
    time-limited, and that the requirement to renew them more
    often was at most a "trivial" limitation on Charter
    rights.112 Similarly, the requirement to visit a health care
    practitioner annually is at most an inconvenience which does
    not attract Charter protection.

    JCT: A costly inconvenience with restitution of the short-
    changed time now being appealed for.

    CR: 76. Moreover, courts have consistently held that
    requirements for medical authorization are rationally
    connected to the legislative objective of ensuring medical
    oversight

    JCT: Agreed but it doesn't mean annual oversight.

    CR: and that any limitation on section 7 interests
    associated with these requirements is therefore in
    accordance with the principles of fundamental justice,113
    Spottiswood has pleaded no facts to support a departure from
    that conclusion.

    JCT: He's pleaded that making people with permanent
    illnesses get a medical document every year serves no
    government purpose and costs the patient time and money.

    CR: iii) The production site limits (Hathaway)

    JCT: Hathaway didn't raise the production site limits. No
    one has yet.

    CR: 77. The Hathaway claim is similarly lacking in material
    facts. In a single paragraph, Hathaway seeks a declaration
    that "any limitation" on the number of patients that may
    share a production site, violates patients' right to produce
    cannabis as part of a co-op, and to share the "excessive
    costs and work load" associated with cultivation.

    JCT: Good arguments but there is still reason I want him to
    drop that claim and adopt the one where we rely on
    Sfetkopoulos and Beren decisions.
    http://johnturmel.com/insdp.pdf has the claim.

    CR: 78. If Hathaway is simply alleging that production on a
    larger scale would be less expensive and involve less work,
    it is plain and obvious that the claim does not engage the
    Charter.

    JCT: Why not? It did when Hitzig, Sfetkopoulos and Beren
    struck the caps. How much better is Cap Plus 1?

    CR: The Charter does not include a right to inexpensive
    cannabis, nor does it protect against workload.115

    JCT: No, but Hitzig, Sfetkopoulos and Beren all ruled it
    did, that cap on growers served no constitutional purpose.
    So the Charter does include the right to the least expensive
    cannabis we can grow for ourselves.

    CR: 79. While the Charter may be engaged where the costs and
    workload associated with personal production effectively
    limit a patient's access to cannabis, the claim contains no
    facts to support such a finding. Although Hathaway alleges
    that he is registered with Health Canada for personal or
    designated production,116 the claim provides no details
    concerning any attempts by the plaintiff to produce
    cannabis, the cost and workload associated with that
    production, or the impact on his personal ability to access
    cannabis. The claim also fails to explain why Hathaway must
    produce cannabis for himself and cannot instead access it
    from a commercial licensed seller.

    JCT: I thought the claim said we were adopting the arguments
    in Hitzig, Sfetkopoulos and Beren to make the same point.

    CR: 80. Finally, the claim contains no facts whatsoever to
    show that the production site limits are inconsistent with
    their legislative objective, which is to reduce the
    increased public safety risks associated with large-scale
    cannabis production. While in past cases, courts have
    struck-down limits on the number of patients that may share
    a production site,118 those limits were more restrictive
    than the current limits.

    JCT: those limits (3) were more restrictive than the current
    limits (4)! 4 is so much better than 3! Har har har.

    CR: Hathaway has pleaded no facts to show that the current,
    more generous limits infringe his rights under section 7.
    Absent these material facts, the Hathaway claim cannot
    succeed.

    JCT: If 3 licenses to a site infringed on rights for Hitzig
    and Beren, we've argued 4 infringes only a bit less.

    CR: 5) The claims are scandalous, frivolous and vexatious

    The claims against the caps weren't scandalous, frivolous or
    vexatious when raised by Hitzig, Sfetkopoulos and Beren.

    CR: 81. In addition to the power to strike for no reasonable
    cause of action, the Court may strike a claim on the basis
    that it is scandalous, frivolous or vexations.119

    82. Common hallmarks of scandalous, frivolous or vexatious
    proceedings include the re-litigation of issues that have
    already been determined

    JCT: Facts were not previously litigated

    CR: and the bringing of claims that are so bereft of
    material facts that the defendant cannot know how to
    answer.120

    JCT: Sure, Defendant's lawyers just can't know how to answer
    with only a few relevant facts and bereft of non-related
    ones.

    CR: A pleading is also frivolous and vexations if it is
    argumentative or includes statements that are irrelevant,
    incomprehensible or inserted for colour.121 The plaintiffs'
    claims bear several of these indicia.117

    JCT: Too bad they didn't cite any.

    CR: 83. Canada repeats and relies here on its submissions
    concerning the plaintiffs' attempts to re-litigate issues
    and failure to plead material facts.

    JCT: Again.

    CR: The Hathaway claim is also rife with incomplete and
    occasionally incomprehensible sentences and paragraphs,
    while the Harris claim is at several points argumentative
    and overblown.

    JCT: Wish I could understand why an argument shouldn't be
    argumentative though it should not be "overblown," whatever
    that means.

    CR: For example, Harris repeatedly alleges that the
    possession limits are based on "fraudulent" Health Canada
    survey data.

    JCT: How can the data from the surveys be "fraudulent" when
    low-tech shysters don't know anything about statistics?

    CR: He compares Canada's reliance on this data to an act of
    criminal genocide.122

    JCT: Convincing Justice Manson to impose a cap on medication
    that is 9 times too low would seem possibly genocidal.

    CR: He also alleges that a Health Canada official "Can't
    even do basic division right"123

    JCT: Bet they didn't do their division right and these
    shysters can't tell because they can't divide right either.

    CR: and employs mocking language to refer to Health Canada's
    evidence in Allard.121

    JCT: Sadly, no one realizes how silly the statistical surveys
    were. It took someone with my mathematical talent to stop
    the corruption and expose it to the examination of unlearned
    judges.

    CR: This is an inappropriate use of pleadings and the claims
    should struck accordingly.

    6) Leave to amend should be refused

    84. The claims should be struck without leave to amend. This
    Court has previously struck similar claims by the plaintiffs
    without leave to amend. The attempt to re-litigate those
    decisions is an abuse of this Court's process which cannot
    be cured by amendment. Hathaway has also already had an
    opportunity to amend his claim to address the mootness
    issue. In all of these circumstances, a further opportunity
    to amend would be inappropriate.

    JCT: That's why he should abandon and file the new
    Designated Person claim to grow for more than 4.

    CR: B. THE PLAINTIFF SPOTTISWOOD SHOULD PROVIDE SECURITY FOR
    COSTS

    85. If his claim is not struck without leave to amend,
    Spottiswood should be ordered to provide security for
    Canada's costs prior to taking any further steps in his
    action.

    JCT: But it another dozen people challenge the annual doctor
    visits, their $6 grand claim shouldn't get very far. The
    more victims the court has to screw, the less likely the
    court will further punish the victim with costs.

    CR: 86. Rule 416 provides that the Court may order security
    for costs if the defendant has a costs order against the
    plaintiff that remains unpaid.125 This Court has also held
    that unpaid costs orders in fact give rise to a prima facie
    entitlement to security, and that the only question where
    costs remain unpaid is whether the Court should exercise its
    discretion to refuse security under Rule 417.126

    87. Canada has two costs awards against Spottiswood,
    which total $1,000 ($1,115.68 with post-judgment interest).
    These costs remain unpaid.127 Canada is thus prima facie
    entitled to security for its costs of the present
    proceeding,

    JCT: Michael did a couple of appeals during Gold Star days
    what got hit with costs, but it's really too little for them
    to chase him over. So far, 26 people appealed and they may
    have all been hit with $500 costs but little chase for so
    little. But another reason to get more plaintiffs against
    the year cap on prescriptions.

    CR: 88. Rule 417 provides that the Court may refuse to order
    security if a plaintiff demonstrates impecuniosity and the
    Court is of the opinion that the case has merit. With
    respect to the merits, Canada relies on its submissions
    above that: the Spottiswood claim lacks merit.

    JCT: And we have to stick with cap less than dosage being a
    good case.

    CR: With respect to impecuniosity, given the onus on the
    plaintiff, Canada will reserve its submissions for reply.

    JCT: So Mike gets a chance to plead poverty but better that
    others join him on the beef and then his old costs won't get
    in the way of the argument.

    CR: However, Canada notes generally that the Federal Court
    of Appeal has distinguished impecuniosity from merely having
    insufficient assets. The plaintiff seeking to establish
    impecuniosity must demonstrate not only that his own assets
    are insufficient, but also that he is unable to raise the
    money elsewhere, for example, by borrowing from family or
    others. The impracticality of accessing money from other
    sources must be supported by material evidence and
    established by the plaintiff with robust particularity.128

    JCT: Tough to satisfy so even more reason to get others to
    challenge the 1-year cap on their prescriptions.

    CR: C. THE MOTION SHOULD BE GRANTED WITH COSTS

    89. Canada requests that its motion be granted with costs.
    The plaintiffs declined to appeal the orders striking their
    prior claims, but now attempt to circumvent those orders
    with new claims concerning the very same issues.

    JCT: That were not considered in depth. x

    CR: Their claims suffer from many of the same shortcomings
    as the prior claims, including a lack of material facts,
    raising issues of settled law, and comments that are
    argumentative and overblown. This suggests that the
    plaintiffs have not heeded the lessons of this Court's prior
    orders. An award of costs is appropriate in these
    circumstances.

    PART IV - ORDER SOUGHT

    90. Canada requests:

    a) an order striking these claims without leave to amend;

    b) in the alternative, an order that Spottiswood provide
    security for costs in the amount of $6,650; and

    c) costs of this motion and of the proceedings.

    ALL OF WHICH IS RESPECTFULLY SUBMITTED

    Dated at Toronto this December 13,2018.

    ATTORNEY GENERAL OF CANADA
    Department of Justice
    Ontario Regional Office
    120 Adelaide Street West
    Suite 400
    Toronto, Ontario
    M5H 1T1
    Per: Jan Bricker / Wendy Wright
    Tel: (647) 256-7473 / (647) 256-0577
    Email: Jon.Bricker@justice.gc.ca
    Wendy.Wright@justice.gc.ca
    Counsel for the Defendant Her Majesty the Queen

    NOTES:

    1 Controlled Drugs and Substances Act, SC 1996, c 19, s 56
    [DMR, Tab 8A, p 359-60|; Regulatory Impact Assessment
    Statement for the MMAR (2010), p 481 ("MMAR 2010 RIAS")
    |DMR, Tab 8A, p 387]
    2 SOR/2001-227 ("MMAR") JDMR, Tab 8A, p 391-98]
    3 In addition to a general practitioner, the MMAR required
    that patients with prescribed conditions or symptoms also
    consult with a medical specialist. MMAR, ss 4(2)(b), 6 [DMR,
    Tab 8A, p 363-66]
    4 MMAR, ss 2, 11 [DMR, Tab 8A, p 363, 367-68J
    5 MMAR, s 13(1) |DMR, Tab 8A, p 368]
    6 MMAR, ss 24-42, 70-70.5 [DMR, Tab 8A, p 370-83]
    7 MMAR, ss 32(d), 41(c) (DMR, Tab 8A, p 375, 380|
    8 MMAR 2010 RIAS, p 482, 484 ("MMAR 2010 R1AS") [DMR, Tab
    8A, p 388, 390]
    9 MMAR, s 31 [DMR, Tab 8A, p 374] 11)
    10 Regulatory Impact Assessment Statement for the MMPR
    (2013), p 1720, 1725-27 ("MMPR R1AS") (DMR, Tab 8A, p
    399,403-05] "
    11 SOR/2013-H9 ("MMPR") (DMR,Tab 8A, p 391-98]
    12 MMPR, ss 3, 12 [DMR, Tab 8A, p 392-95]
    13 MMPR RJAS, p 1721, 1731-40 [DMR, Tab 8A, p 400, 407-17];
    Regulatory Impact Assessment Statement for the Cannabis
    Regulations (2018), p 2811-2820 ("CR RIAS") |DMR, Tab 8A, p
    471-80]
    14 MMPR, s 5 (DMR, Tab 8A, p 393-94]
    15 SORV2016-230 ("ACMPR") |UMR, Tab 8A, p 417-27]

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