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
ii) The requirement for annual medical authorization
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
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
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
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
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
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
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
JCT: Sure, Defendant's lawyers just can't know how to answer
with only a few relevant facts and bereft of non-related
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.
CR: The Hathaway claim is also rife with incomplete and
occasionally incomprehensible sentences and paragraphs,
while the Harris claim is at several points argumentative
JCT: Wish I could understand why an argument shouldn't be
argumentative though it should not be "overblown," whatever
CR: For example, Harris repeatedly alleges that the
possession limits are based on "fraudulent" Health Canada
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
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
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
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
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
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
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
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
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
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
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
14 MMPR, s 5 (DMR, Tab 8A, p 393-94]
15 SORV2016-230 ("ACMPR") |UMR, Tab 8A, p 417-27]