• TURMEL: Reply to Crown on motion to carry 10-day supply (1/2)

    From John KingofthePaupers Turmel@1:229/2 to All on Tue Jan 22 09:18:45 2019
    From: johnturmel@gmail.com

    TURMEL: Reply to Crown on motion to carry 10-day supply

    JCT: Half a dozen plaintiffs have filed to be able to strike
    the 150-gram cap and carry the same 30-day supply of
    marijuana as for narcotics which has no cap.

    The Crown has filed a motion to strike the actions as
    frivolous and Lead Plaintiff Allan Jeff Harris has to file
    the response for the group by Feb 1. Then the Crown Replies
    by Feb 22 and the judge can have a hearing or decide.

    And Jeff also filed a motion to be able to carry the same
    10-day supply as granted to the Garber Four by the B.C.
    Superior Court pending trial of the action for 30 days.

    The Crown filed a Response motion and this is the Reply.
    Case Management Judge Brown can then decide but I'd expect
    him to put it off until after the Crown's strike motion. But
    it would certainly hurt them if he grants the 10 days.

    (Moving Party)
    (Responding Party)


    1. Allan Harris is Lead Plaintiff for other "Hi-Dosage"
    plaintiffs seeking the same 30x daily-dosage possession cap
    as had existed under the MMAR when marijuana was regulated
    as severely as the 30-day supply cap for "narcotic"
    prescriptions. Justice Manson had extended the MMAR but
    imposed the 150 gram possession cap from MMPR S.5(e). When
    the MMPR was struck, the 150 gram cap was struck with it. We
    are left with a court-imposed cap, not by Parliament, though
    subsequent regimes kept the limit.

    2. Pending the trial of the action for 30x daily dosage,
    Applicant then moved the court for the same 10-day
    possession limit in excess of the 150 grams granted by B.C.
    Superior Court to the four patients in Garber v. Canada and
    that such remedy apply to all plaintiffs for whom he was
    appointed Lead Plaintiff or for all patients with Medical

    3. Defendant's Response states three issues:
    10. The issue on this motion is whether the Court should
    grant the plaintiff's request for an interim "personal
    constitutional exemption" from the possession and
    shipping limits in the Cannabis Regulations. In
    (a) whether this Court has jurisdiction to grant
    the requested relief;
    (b) if this Court has jurisdiction to grant the
    requested relief, whether the plaintiff has
    established that it should be granted; and
    (c) whether the plaintiff may seek interlocutory
    relief on behalf of the other plaintiffs.


    4. Canada argues exemption akin to declaration:
    2... The requested exemption is instead akin to a
    request for an interlocutory declaration, which this
    Court has no jurisdiction to grant.

    5. Even if akin to an interlocutory declaration which this
    court has no jurisdiction to grant, an interlocutory
    exemption was granted by this court in Allard which the
    Crown later mentions in paragraph 24:
    24. This Court has previously refused a request for an
    interlocutory exemption from the 150 gram possession
    limit. In Allard...

    6. Applicant submits the court continues to have the
    jurisdiction it had in Allard to hear this Application for
    Interlocutory Exemption even if akin to an Interlocutory

    7. Canada mis-states the Applicant's claim:
    11. The plaintiff seeks an interim "personal
    constitutional exemption" from the criminal prohibitions
    on publicly possessing and on shipping over 150 grams of
    cannabis for medical purposes.
    13. The requested relief is tantamount to an
    interlocutory declaration that the plaintiff may possess
    in public and ship over 180 grams of cannabis.

    8. Applicant is not seeking to possess and ship any amount
    "over 150 grams" but rather seeks to possess and ship "not
    less than the 10 days worth while seeking to ship pending
    trial for not less than 30 days worth as for all
    prescription narcotics as in the former MMAR. Imagine
    getting less days of cannabis than the 30 days for oxycodone
    or benzos?

    9. Crown argues right to 30-days supply is now gone:
    12. While this Court has clear jurisdiction to issue
    interlocutory injunctions to preserve existing rights
    pending the outcome of ongoing proceedings, the
    plaintiff does not have an existing right to possess in
    public or to ship cannabis in amounts exceeding 180
    grams (150 grams pursuant to the Regulations and 30
    grams pursuant to the Act). Nor has he established such
    a right pursuant to the Charter. An injunction is
    unavailable in these circumstances.

    10. Yet Canada notes "seeking interlocutory recognition of a
    right not currently enjoyed":
    30. The Supreme Court of Canada has held that courts
    should not lightly order that laws enacted for the
    public good are inoperable in advance of a complete
    constitutional review, and that interlocutory relief
    from allegedly unconstitutional laws should be granted
    only in clear and exceptional cases.32
    31. While the Supreme Court's analysis was made in the
    context of injunction proceedings to preserve existing
    rights, it is as applicable, if not more so, where the
    plaintiff seeks interlocutory recognition of a right not
    currently enjoyed.

    11. Applicant does seek interlocutory recognition of a right
    formerly enjoyed by all but not currently enjoyed other than
    by the Garber Four. So the Garber Four and Allard Four
    claimed an existing right under the MMAR that would be taken
    away from Harris so he could no longer claim an existing
    right under the MMPR once it had been taken away.

    12. No legislation took the right to 30-day supply away, one
    judge did. Then later regimes kept it. The unconstitutional
    MMPR tried to take away the 30-day cap but failed yet the
    judge had imposed the new legislation on the permit holders
    under the old MMAR pending trial, Parliament did not. So the
    150-cap was not enacted by constitutional legislation, it
    was empowered one judgment.

    13. Defendant decries exemption akin to declaration:
    13.. This relief is unavailable. It is well established
    that declaratory remedies are not available on an
    interlocutory basis. As this Court noted in Sawridge
    Band v Canada: An interim declaration of right is a
    contradiction in terms. If a court finds that a right
    exists, a declaration to that effect is the end of the
    matter and nothing remains to be dealt with in the final
    judgment. If, on the other hand, the right is not
    established to the court's satisfaction, there can be no
    entitlement to have an unproved right declared to
    14. The constitutionality of the 150 gram limit on
    public possession and shipping of medical cannabis is
    the central issue in the plaintiffs action. The
    plaintiff effectively now asks this Court to rule on
    that central, constitutional issue on an interlocutory
    basis without the benefit of a full evidentiary record
    or trial. The requested relief is inappropriate and
    should be refused.13

    14. Yes, the action seeks a declaration upon full
    evidentiary record. But this is seeking an interim
    exemption. Applicant is not seeking the full constitutional
    declaration and remedy in his motion, only that plaintiff be
    granted possession of a 10-day supply because the harms to
    the plaintiff without an interim exemption is greater and
    more irreparable than the inconvenience to the Crown.

    15. The Crown raises "existing" right:
    2. While this court may grant interlocutory orders or
    injunctions to preserve existing rights, the plaintiff
    does not have an existing right to possess in public or
    ship over 150 grams of cannabis for medical purposes.

    16. In extending the MMAR to patients in Allard, Justice
    Manson imposed the 150 gram cap from the MMPR onto MMAR-
    holders. The MMPR was struck down in its entirety in 2016.
    The Applicant submits the changes in the MMPR affecting MMAR
    holders were struck down when the entire legislation was
    struck down leaving the original 30x dosage cap from the
    MMAR. But the court-imposed bit of unconstitutional
    legislation has remained in the future Access to Cannabis
    for Medical Purposes Regulations "ACMPR" and the Cannabis
    Act & Regulations "CAR" without discussion by Parliament.


    17. Crown says test for interim relief not met:
    15. Even applying the test for an interlocutory
    injunction, the Court should not grant the relief
    requested by the plaintiff. The well-known test for
    interlocutory injunctive relief is set out in RJR
    MacDonald v Canada. The party seeking an interlocutory
    injunction must prove that:
    a) there is a serious issue to be tried;
    b) irreparable harm would result if the injunction
    was not granted; and
    c) the balance of convenience favours granting the
    The plaintiff fails to meet any of these requirements.

    a) Serious Issue

    18. Justice Cullen, in Garber v. Canada 2015, noted that
    Justice Manson had found that
    a) such health issue was a serious,
    b) the damage of the 150 gram limit by travel restrictions
    and more frequent doctor visits on his 25-and-under
    grams/day plaintiffs was not irreparable, and so
    c) did not have to do a balance of convenience analysis.

    19. Justice Cullen ruled
    a) it was a serious issue,
    b) the 150 gram limit irreparable damage to his high-dosers
    c) he had to do a balance of convenience analysis.

    20. Jeff Harris has the same 100-grams per day prescription
    as Marc Boivin and would be expected to suffer the same
    harms from the 1.5-day supply cap when travelling. The
    Court's conclusions should be similar. But Boivin grows for
    himself, Harris' grower has to travel to the post office 20
    times a month while Harris has to travel to pick it up 20
    times a month. A Priority Post cost of $35 per 150 grams is
    $700 a month he'll never get back. With the interim
    exemption for 10-day supply, he could cut back to 3
    shipments a month.

    21. Harris lives in B.C. and could file in B.C. Superior
    Court too if the Federal Court action.

    22. Canada says Garber distinguishable:
    26. The plaintiff relies on Garber v. Canada (Attorney
    General) ("Garber") in support of this motion for a
    personal constitutional exemption. In that case, the
    Supreme Court of British Columbia granted four
    plaintiffs an interlocutory injunction to possess more
    than 150 grams of cannabis in accordance with their
    existing MMAR authorizations to possess. That case is
    readily distinguishable:
    (a) the parties to the Garber injunction had
    authorizations under the MMAR to possess more than 150
    grams of cannabis, such that the court was dealing with
    preservation of an existing right;26
    (b) the Garber plaintiffs put forward extensive evidence
    in support of the injunctive relief sought; 7
    (c) this Court rejected a similar request for an
    interlocutory exemption from the 150 gram possession in
    Allard, and its decision was ultimately affirmed by the
    Federal Court of Appeal;28 and,
    (d) Garber pre-dates the trial decision in Allard v
    Canada, which ultimately affirmed the constitutionality
    of the 150 gram possession limit.

    23. (d) Garber post-dates the 2014 Allard Injunction
    decision by Manson J. that originally imposed the 150 gram
    limit on patients with MMAR permits and pre-dates the Allard
    trial decision by Phelan J. when the 150 gram cap was not
    over-turned. So the Garber judge was well aware of Justice
    Manson's finding of no irreparable harm on Manson's "Under-
    25-gram" patients in dealing with his "Over-100-gram "
    patients which makes his contradictory decision that much
    more telling. Justice Cullen then noted that had Manson had
    before him the same information of the high-dosers, he might
    have come to a different conclusion:
    [123] That being so, while there is no basis to doubt
    that Justice Manson's determination was correct in light
    of the legal and factual context before him, it does
    emphasize that a determination of irreparable harm is
    case-specific and dependent on the evidence adduced and
    relied on.
    [117] I am also satisfied that the plaintiffs have
    established irreparable harm given the prospect that if
    they are not exempted from the MMPR and subjected to the
    MMAR, they will lose substantial sums of money, they
    will be unable to fund their prescribed medications in
    future, they will be forced to choose between their
    health and their liberty, and/or they will be exposed to
    the stress and indignity of impoverishment. Those
    conditions are particularly acute in the case of Mr.
    Boivin, whose vulnerability due to his compromised
    health is manifest.

    24. (c) Though this Court rejected a similar request, it was
    from small-dosers raising travel and financial costs and not
    from large-dosers raising life-and-death impacts.

    25.(b) Because the Garber plaintiffs put forward extensive
    evidence in support of the injunctive relief sought is why
    Applicant is relying on that decision:

    26. (a) Though the parties to the Garber injunction had
    existing authorizations under the MMAR to possess 30-day
    supply, and then obtained exemptions to possess a 10-day
    supply, Applicant Harris has an existing authorization under
    the CAR to possess a 1.5 day supply. And the judge who
    imposed the cap was not apprised of the impact of his cap
    on high-dosers because there were no high-dosers before him.

    b) Irreparable Harm

    27. Canada says plaintiff has failed to establish
    irreparable harm:
    19. The plaintiff has failed to demonstrate that he will
    suffer any harm if the constitutional exemption is not
    granted. He is not currently authorized to possess more
    than 150 grams of cannabis in public for medical
    purposes, and he has provided no evidence concerning why
    he needs to do so pending the determination of his
    action. Accordingly, the plaintiff has failed to
    establish irreparable harm.

    28. It is the same irreparable harm as suffered by 100-
    gram/day Boivin in Garber. Plus the $8,400 in postage more
    the 240 trips a year to the post office by grower and
    perhaps the patient that's doing the irreparable harm.

    29. Judge Cullen's harm analysis:

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