• TURMEL: Response to strike claims against 150-gram MedPot cap (1/3)

    From John KingofthePaupers Turmel@1:229/2 to All on Fri Feb 1 09:26:24 2019
    From: johnturmel@gmail.com

    TURMEL: Response to strike claims against 150-gram MedPot cap

    JCT: Half a dozen patients with large prescriptions, two
    over 200 grams/day, have filed actions challenging the 150
    gram cap on possession when not at home. Jeff Harris is the
    Lead Plaintiff with 100 gram prescription who can't leave
    home with more than 1.5 days supply. All other drugs get at
    least 30 days as the MMAR permitted marijuana users to
    carry.

    Jeff filed a motion to carry for 10 days like the

    plaintiffs
    in the B.C. Garber case got while the actions for the
    same 30-days as everyone else goes on. The Crown Responded
    and last week we filed our Reply. Judge Brown can now rule
    on it but I'd bet he waits until his decision on this Crown
    motion to strike the claims as frivolous. This is our Reply
    why we should be able to litigate what the Garber

    plaintiffs
    were able to litigate for.

    FEDERAL COURT
    Court File No." T-1765-

    18
    T-217-

    19

    BETWEEN:
    ALLAN J. HARRIS
    Plaintiff
    (Responding Party)
    and
    HER MAJESTY THE QUEEN
    Defendant
    (Moving Party) __________________________________________________________

    Court File No." T-1913-

    18
    BETWEEN:
    MIKE SPOTTISWOOD
    Plaintiff
    (Responding Party)
    and
    HER MAJESTY THE QUEEN
    Defendant

    JCT: Jeff's T-1765-18 action is against the 150 gram limit
    and since the Crown says Mike Spottiswood's MMAR license
    doesn't make him get a medical document every year, Jeff
    filed the same action against the 1-year cap in T-217-19

    for
    his permanent illness. Wish others with permanent illnesses
    would join him in spending the $2 to file
    http://johnturmel.com/insyear.pdf and let the court know a
    lot of people are angry at having to pay the doctor every
    year.

    MOTION RECORD
    PLAINTIFFS' RESPONSE TO MOTION TO STRIKE

    For the Plaintiffs:
    Allan J. Harris

    For the Defendant:
    Department of Justice
    Ontario Regional Office
    Per: Jon Bricker / Wendy Wright

    WRITTEN REPRESENTATIONS

    1. I adopt the submissions from my Applicant's Reply for

    the
    motion before this court for an interim remedy of a 10-day
    supply which are just as valid in support of an action for
    the same full 30-day supply as for most other narcotic
    drugs.

    2. The Reply cites the Garber v. Canada precedent that
    establishes that the impacts of the 150 gram limit on large
    dosers is serious, that irreparable harm does result from
    geographical confinement and frequent replenishing, that a
    10-day supply exceeding the 150 gram cap is reasonable.

    Once
    the need to exceed the cap is accepted, the only remaining
    question is how many days supply should be granted? Less
    than all other narcotic drugs, or not? Applicant deals
    herein with other Crown objections:

    HATHAWAY CLAIM MOOTED

    3. Canada submits that Plaintiff Hathaway's action is
    mooted:
    1... the Hathaway claim seeks declarations that the
    former Access to Cannabis for Medical Purposes
    Regulations ("ACMPR") are unconstitutional. The ACMPR
    have been repealed. The requested relief is accordingly
    moot...
    24.. While Harris filed an amended claim, Hathaway
    failed to do so.

    4. Mr. Hathaway's claim challenged several harmful flaws in
    the previous regime while those of Allan Harris and Michael
    Spottiswood only challenged one flaw each. Hathaway did not
    amend his multi-tort claim and let it be mooted so that

    only
    Harris' challenge to the 150-gram cap and Spottiswood's
    challenge to the 1-year prescription cap for permanently-

    ill
    patients would continue. As Lead Plaintiff, I will only
    respons for those two actions.

    MOTION TO STRIKE

    5. Crown argues that the actions are improper, scandalous,
    frivolous, vexatious, an abuse of process, violate judicial
    comity because
    a) there are insufficient facts
    b) the issues have been litigated in prior decisions.

    a) INSUFFICIENT FACTS

    6. Defendant bemoans the "dearth" of facts:
    4... Fourth, the claims fail to disclose a reasonable
    cause of action. Although they broadly allege that the
    current Cannabis Regulations infringe sections 7 and 15
    of the Charter, the claims contain few if any facts to
    support the essential elements of these constitutional
    causes of action.

    7. "Few, if any" means some. The real issue is whether the
    "few" facts presented are "enough" facts to support the
    essential elements of the constitutional causes of action.

    8. Applicant submits that the facts submitted herein are

    the
    same necessary facts sufficient in Garber to establish:
    a) Plaintiff has a medical authorization for
    b) 100 grams per day meaning he
    - cannot carry enough for more than 1.5 days away from

    home;
    - needs 20 costly couriers a month, 240 per year.

    9. This was the only and same data Garber Plaintiff Marc
    Boivin needed to be deemed harmed in violation of rights.

    10. In a current set of actions over delays in processing
    permits, applicants provided only the start and end dates
    for their permits to establish the essential period of time
    it took to process. Defendant moved it wasn't sufficient,
    they also needed to know what illness the patients had to
    determine whether the processing period had been too long.
    The Court disagreed but the Defendant continues to confuse
    "just enough" data with "not enough."

    b) RE-LITIGATION OF PRIOR DECISIONS

    11. Harris and Spottiswood previously made claims:

    B. PRIOR CLAIMS BY THE PLAINTIFFS
    17. Between 2014 and 2016, hundreds of self-represented
    plaintiffs, including the present plaintiffs Allan J.
    Harris ("Harris"), Mike Spottiswood ("Spottiswood") and
    Raymond Lee Hathaway ("Hathaway"), brought
    constitutional challenges in this Court to the MMAR and
    MMPR. The claims were based on "kits" downloaded from
    the website of medical cannabis activist John Turmel.28
    As detailed below, each of the claims was struck

    without
    leave to amend.
    1) Prior claims by Harris and Spottiswood
    18. Harris and Spottiswood brought "kit" claims

    alleging
    that several provisions of the MMAR and MMPR -

    including
    the production site limits in the MMAR, the 150 gram
    possession limit in the MMPR, and the requirement in
    both regulations for annual medical authorization -
    infringe the section 7 rights of medical cannabis
    patients.29
    19. The Court initially stayed the claims pending
    Allard. Following Allard, Canada brought a motion to
    strike. On January 11, 2017, the Court granted Canada's
    motion and struck the claims without leave to amend.

    The
    claims were struck on the grounds that they were moot,
    failed to disclose a reasonable cause of action, and
    were frivolous, vexations and an abuse of process.31
    The plaintiffs did not appeal this decision.32
    28. The claims should be struck without leave to amend.
    the plaintiffs' attempts to re-litigate their previous
    claims should be struck as a matter of judicial comity
    and an abuse of process.. the Harris and Spottiswood
    claims.. raise constitutional issues that have already
    been decided by this and other courts.

    12. Yes, the 150-gram and 1-year cap were issues raised but
    the Crown itself had argued that a stay pending final
    disposition in Allard had the potential to assist these
    self-represented plaintiffs by significantly narrowing the
    issues for determination in their actions. And it did. So
    the caps were never argued nor adjudicated on the merits
    after the MMPR was struck down by Allard and they were
    considered mooted. And appealing this decision striking

    down
    the regime we wanted struck down would have been wasteful,
    mooted and silly.

    13. The original Allard claims were against:
    a) prohibition on non-dried forms of cannabis,
    b) prohibition on production in a dwelling;
    c) prohibition on outdoor production;
    d) prohibition on possessing and dealing more than

    150g.

    14. The original 20 Turmel Kits claims included those 4
    torts raised in Allard and 16 more:
    1) Require recalcitrant doctor;
    2) Not provide DIN (Drug Identification Number);
    3) Require annual renewals for permanent diseases;
    4) Require unused cannabis to be destroyed;
    5) Refusal or cancellation for non-medical reasons;
    6) Health Canada feedback to doctors on dosages;
    7) Not provide instantaneous online processing;
    8) Not have resources to handle large demand;
    a) 9) Prohibit non-dried forms of cannabis;
    10) Not exempt from CDSA S.5.;
    11) ATP valid solely as "medical document";
    12) Licensed Producer may cancel for "business reason";
    13) Prohibit return of medical document to cancelee;
    b) 14) Prohibit production in a dwelling;
    c) 15) Prohibits outdoor production;
    16) Not protect rights to brand genetics;
    17) Not remove financial barriers;
    18) Not provide central registry for police
    verification;
    19) Not have enough Licensed Producers to supply

    demand;
    d) 20) Prohibit processing > 150 grams.

    15. Phelan J. had ruled:
    [23] In these cases the requests for declaratory relief
    are moot. The MMAR has long been repealed. The MMPR was
    declared invalid, and it has now been repealed and
    replaced by the ACMPR.
    [24] The lis or interference with constitutional rights
    under the MMAR and MMPR has ended with the introduction
    of the ACMPR. (The issue of damages is dealt with
    separately later.)
    C. Discretion
    [25] There are several good reasons why the Court

    should
    not exercise its discretion to continue to adjudicate
    these matters:
    a) there is nothing to adjudicate: the substrata of the
    lis has disappeared completely with the introduction of
    the ACMPR;
    b) judicial economy militates against expenditure of
    judicial resources on a theoretical claim; and
    c) the role of a court is to adjudicate, not to make
    general statements at large on legal issues.
    [26] No party other than Turmel seems to be interested
    in litigating the issues. Even Turmel seems to

    recognize
    that the matters are moot and there is nothing on which
    to give a useful declaration.
    [27] There is no regulation to attack and therefore
    nothing useful to declare. The MMAR has been replaced

    by
    two different regulatory regimes. The MMPR has been
    struck down, the appeal period has passed, and the
    matter of the validity of the MMPR is res judicata.
    Finally, the MMPR has been replaced in its entirety by
    the ACMPR.
    [28] In terms of judicial economy, handling more than
    300 similar cases across the country without a lead

    file
    or some coordination is a daunting task. Before working
    out the logistics, the Court must be able to conclude
    that something legally useful might be attained.
    However, here there are no issues which can usefully be
    resolved in terms of present or future proceedings. Any
    problems with the new regime should be handled directly
    in claims under or against the ACMPR.
    [29] Any declaration that the Court might make would be
    a general pronouncement on past laws, not an
    adjudication with some effect on the claimants'

    existing
    rights.
    [30] Therefore, these proceedings are moot and there is
    no good reason to allow the actions/application to
    continue.

    16. So 16 torts were not dealt with when the Allard

    decision
    struck the MMPR for the original 4 torts and though the
    court did dismiss the challenge to the 150-gram cap for the
    Allard reasons, it did not deal with the 1-year cap on
    prescriptions which had not been raised. Surely, if the
    previous decision had dealt with the 1-year cap, the
    Defendant would have cited the passage dismissing it.

    17. The Crown now argues that the claim being mooted for
    other reasons is akin to a decision on the merits:
    3. Third, this Court has affirmed the constitutionality
    of the 150 gram possession limit on cannabis for

    medical
    purposes. The claims attempt to re-litigate these
    issues, but identify no reason why this Court should
    depart from these prior decisions.
    10. In Allard v Canada ("Allard"), this Court declared
    the MMPR unconstitutional on the grounds that the
    licensed production regime in place at the time unduly
    restricted access to cannabis for medical cannabis.
    However, as detailed below, the Court affirmed the
    constitutionality of the 150 gram possession limit.

    18. There was no litigation or prior decision on the 1-year
    cap raised by the Turmel Kit plaintiffs since it had not
    been raised in Allard. Allard did challenge the 150 grams

    in
    the MMPR only over its mobility restriction and not for
    fraudulent scientific evidence leading to genocidal
    undermedication. The dismissal of claims for which the

    judge
    did not allow argument to continue on the merits because
    they had been mooted means nothing.

    19. Can this court believe that after striking down the
    entire MMPR and ruling there is no good reason to allow the actions/applications for more other reasons to continue,

    that
    the judge then still permitted litigation to continue on
    whether the regime should be struck for more other reasons?

    WHEN TO RE-LITIGATE

    20. The Crown lays out when previous decisions may be
    ignored:
    33... Comity provides that, although not strictly
    binding, prior decisions of the same Court are

    deserving
    of considerable respect and should be departed from

    only
    where there are "strong reasons," also sometimes
    described as "cogent reasons," for doing so.51
    34. Strong reasons does not simply mean better
    arguments. Rather, the party requesting a departure

    from
    a prior decision must establish either that subsequent
    decisions have affected its validity, that the prior
    decision failed to address some binding case law or
    statute, or that the prior decision was unconsidered or
    given in circumstances where trial exigencies did not
    allow for full argument.52
    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. There is no
    suggestion that Allard failed to address some binding

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    * Origin: www.darkrealms.ca (1:229/2)