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.
HER MAJESTY THE QUEEN
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.
(A) THE REQUESTED RELIEF IS UNAVAILABLE
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
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
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.
(B) WHETHER AN INTERLOCUTORY INJUNCTION IS APPROPRIATE
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
(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:
 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
 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
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.