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
Jeff filed a motion to carry for 10 days like the
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
were able to litigate for.
Court File No." T-1765-
ALLAN J. HARRIS
HER MAJESTY THE QUEEN
(Moving Party) __________________________________________________________
Court File No." T-1913-
HER MAJESTY THE QUEEN
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
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
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
1. I adopt the submissions from my Applicant's Reply for
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
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.
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
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
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
Harris' challenge to the 150-gram cap and Spottiswood's
challenge to the 1-year prescription cap for permanently-
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
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
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
- 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
leave to amend.
1) Prior claims by Harris and Spottiswood
18. Harris and Spottiswood brought "kit" claims
that several provisions of the MMAR and MMPR -
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
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.
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
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
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
19) Not have enough Licensed Producers to supply
d) 20) Prohibit processing > 150 grams.
15. Phelan J. had ruled:
 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.
 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
 There are several good reasons why the Court
not exercise its discretion to continue to adjudicate
a) there is nothing to adjudicate: the substrata of the
lis has disappeared completely with the introduction of
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.
 No party other than Turmel seems to be interested
in litigating the issues. Even Turmel seems to
that the matters are moot and there is nothing on which
to give a useful declaration.
 There is no regulation to attack and therefore
nothing useful to declare. The MMAR has been replaced
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
 In terms of judicial economy, handling more than
300 similar cases across the country without a lead
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.
 Any declaration that the Court might make would be
a general pronouncement on past laws, not an
adjudication with some effect on the claimants'
 Therefore, these proceedings are moot and there is
no good reason to allow the actions/application to
16. So 16 torts were not dealt with when the Allard
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
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
the MMPR only over its mobility restriction and not for
fraudulent scientific evidence leading to genocidal
undermedication. The dismissal of claims for which the
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,
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
33... Comity provides that, although not strictly
binding, prior decisions of the same Court are
of considerable respect and should be departed from
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
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