• TURMEL: Response to strike claims against 150-gram MedPot cap (2/3)

    From John KingofthePaupers Turmel@1:229/2 to All on Fri Feb 1 09:26:24 2019
    [continued from previous message]

    case or legislation, or that subsequent cases or
    legislation have undermined its validity.

    21. The Crown seems to have failed to note that the
    subsequent Garber decision granting high-dosers a 10-day
    supply in excess of the 150 gram cap so one 167-gram/day
    patient now has a possession limit of over 1.6Kg did does
    undermine its validity. Previously unavailable evidence

    left
    unconsidered about the false scientific surveys impeaches
    the original result. And the stay of the actions did not
    allow for ANY argument, let alone full argument!

    22. Judge Manson only heard evidence from low-dosers:
    47. The claim notes that the plaintiff uses 100 grams

    of
    dried cannabis per day, and alleges that the Court in
    Allard failed to consider the impact of the possession
    limits on patients with high daily dosages.69 This
    allegation is clearly unsupported. While the four

    Allard
    plaintiffs were authorized to use between 5 and 25

    grams
    per day, there was evidence in Allard of patients
    authorized to use much larger quantities, including

    some
    well in excess of 100 grams.70 The Court nevertheless
    deemed the possession limit constitutional.

    23. Defendant explains when re-litigation is allowed:
    36. The abuse of process rule is not absolute. Courts
    retain discretion to allow re-litigation where the

    prior
    proceeding was tainted by fraud or dishonesty,
    previously unavailable evidence impeaches the original
    result, or differences in the two proceedings are such
    that it would be unfair to apply the prior findings in
    the new case,56

    24. Evidence of fraudulent "scientific" data does impeach
    the 9-times too low original result. Judge Manson did not
    have the statistical analysis of how they under-estimated
    the known mean of 18-grams to be 1-3! Differences in
    evidence and in patient dosage mean it would be unfair to
    apply the prior findings of a judge who wasn't aware of how
    the the true average was underestimated to another judge

    who
    will now adjudicate the 9-times too low claim. From Under-
    25-users to Over-100-users is a big difference. Using an
    estimate when you have the mean can only be to deceive.
    Applicants herein have raised how the 150-gram cap was

    based
    on an average use 9 times too low due to fraudulent
    misrepresentation.

    25. Defendant argues about the Allard decision:
    42. There is no suggestion that the prior proceedings
    were tainted by fraud, that it would be unfair to apply
    the prior findings in this case, or that the plaintiffs
    have previously unavailable evidence. Although the
    Harris claim alleges that the cannabis possession

    limits
    are based on "fraudulent" Health Canada data,64 his
    prior claim included similar allegations and Harris
    acknowledges that the evidence of this alleged fraud

    was
    before Phelan J. when he struck the plaintiffs prior
    claim.65

    26. The evidence that false data was used to under-estimate
    the average tainting the decision by fraud was the
    previously unavailable evidence. The evidence that the 150-
    gram cap had been based on fraudulent scientific surveys

    was
    not in evidence before the Allard judges.

    27. The Crown notes:
    a) The 150 gram possession limit
    44. In Allard, this Court considered the
    constitutionality of the 150 gram possession limit in
    the MMPR. The Court held that the limit was
    constitutional. In so doing, Phelan J. noted:
    [286] ... Specifically, the Plaintiffs argue that
    the 150 gram possession restriction limits their
    freedom of movement and ability to travel; that

    the
    state does not have a legitimate interest in this
    prohibition; and that it does not acknowledge

    those
    who possess it safely without endangering others,
    [287] I agree with the Defendant, in the section 7
    analysis, that the burden is on the Plaintiffs to
    establish that the 150 gram possession limit
    impacts them in a significant way.
    Although the Plaintiffs may have to purchase their
    marihuana more frequently and restrict the number
    of days they travel or transport the drug because
    of this restriction, the cap is not over-broad or
    grossly disproportionate because it bears a
    connection to the objective - it reduces the
    implied risk of theft, violence and diversion for
    which there has been no substantial or persuasive
    evidence.

    28. Judge Phelan was not discussing whether the 150 gram

    cap
    genocidally undermedicated by a factor of 9, he was
    discussing whether it impeded travel and forced them to
    purchase too frequently. Not life and death

    undermedication,
    but trivial inconveniences in comparison to genocide. Not
    leaving home for more than 6 days for a 25-gram patient and
    having to replenish 5 times a month seemed minor but had
    there been a high-doser, perhaps the judge might have seen
    how being undermedicated by a factor of 9 impacted them in

    a
    significant way and that a 150 gram cap could be grossly
    disproportional for someone with a 200 gram prescription.

    29. Judge Phelan continues:
    [288] Overall, this restriction is significantly
    different than the restriction on cultivation as
    the cultivation restriction is a complete ban
    without minimal impairment that affects

    individuals
    adversely to the legislation's objective. The
    possession cap still allows one to possess more
    than their necessary amount of marihuana.86

    30. The cap did not allow high-dosers to possess more than
    their necessary amount of marijuana! Phelan J.'s decision
    was "Per incuriam" in that things that ought to have been
    considered obviously were not. He was unaware that the
    possession cap does not allow an Over-100-gram high-doser

    to
    possess more than their necessary amount of marijuana just
    because the Under-25-gram low-doser did. There are two
    plaintiffs herein with prescriptions for 200 grams/day. Can
    less than a day's supply qualify as "their necessary
    amount?"

    31. The Crown notes the Allard motion to reconsider the 150
    gram cap:
    46. The Allard decision followed a lengthy trial and

    was
    based on a large volume of evidence, including evidence
    and submissions specifically concerning the 150 gram
    possession limit and its impact on patients.67

    Following
    the trial decision, the Allard plaintiffs brought a
    motion for reconsideration of several aspects of the
    decision, including the 150 gram limit.

    32. Attorney for Allard John Conroy not only missed how
    Health Canada used false scientific evidence to

    fraudulently
    lower the known 18 gram average to the estimated 1 to 3
    grams but his Allard Statement of Claim sought:
    e. A Declaration that the provisions that specifically
    restrict the amounts relating to possession and storage
    by patients, including the "30 x the daily quantity or
    150 gram maximum, whichever is the lesser" are
    unconstitutional.

    33. So Allard sought to strike the "30-day or 150 gram
    maximum" leaving no maximum cap. No court could grant such
    an over-broad remedy. Applicants herein only seek to strike
    the "150 gram maximum" leaving the "30-day maximum" cap as
    for small-dosers and all narcotic drugs.

    34. Defendant claims Plaintiffs suffer no irreparable harm:
    49. Moreover, even if interlocutory injunction

    decisions
    were relevant, this Court rejected a similar request

    for
    an interlocutory exemption from the 150 gram possession
    limit in Allard.73
    [91] The Applicants have failed to prove that the
    150 gram personal possession limit imposed by the
    MMPR would constitute irreparable harm.
    [128].. I was unconvinced that the application
    would suffer irreparable harm as a result of the
    imposition of this limit until trial.

    35. But Justice Cullen finding that his high-dosage
    plaintiffs would suffer irreparable harm is now in

    evidence!
    There have been no decisions by this court dealing with

    high
    dosers and dying patients for whom the wait could be fatal
    and only the Garber decision dealing with the high-dosers
    did dispose of the Manson limit and grant more days of
    supply to be possessed.

    36. Crown argues:
    5) The claims are scandalous, frivolous and vexatious
    83. Canada repeats and relies here on its submissions
    concerning the plaintiffs' attempts to re-litigate
    issues and failure to plead material facts. For

    example,
    Harris repeatedly alleges that the possession limits

    are
    based on "fraudulent" Health Canada survey data.
    compares Canada's reliance on this data to an act of
    criminal genocide.122

    37. Persuading Justice Manson to impose a cap on medication
    that is 9 times too low with false data would seem very
    criminal. Sadly, few realize how silly the statistical
    surveys were. It took an Expert Witness in math expose it
    for examination by the court.

    38. Crown argues less supply is just less convenient:
    While the provisions may make it less convenient to use
    cannabis, there is no suggestion that they

    substantially
    restrict the plaintiffs' medical decisions by

    preventing
    them from lawfully accessing adequate medical

    treatment.

    39. Justice Cullen found that allowing access to only a day
    and a half's medication did substantially restrict the
    patient's medical decisions.

    40. Crown argues:
    70. Even if the allegations were supported on the

    facts,
    the ability to go on holiday is not, in and of itself,

    a
    right protected by the Charter. 7

    41. Judge Cullen found that the inability to leave home

    more
    than a day or two was protected by the Charter Right to
    Mobility.

    42. The Crown argues Garber had different tests:
    48. The Harris claim also cites Garber v Canada, in
    which the Supreme Court of British Columbia granted

    four
    plaintiffs an injunction to possess more than 150 grams
    in accordance with their existing MMAR authorizations,
    pending their constitutional challenge to the MMPR.71
    Garber is entitled to no weight. The Federal Court of
    Appeal has held that decisions granting interlocutory
    injunctions have no bearing on subsequent motions to
    strike for no reasonable cause of action, given the
    significantly different tests involved in the two
    motions.72

    43. Sadly, Defendant did not point out the different tests
    for Applicants herein seeking the same remedy for the same
    harms.

    44. Crown argues a law is being challenged:
    64. While arbitrariness and gross disproportionality

    are
    recognized principles of fundamental justice, the
    plaintiffs have once again pleaded no facts to support
    them. A law is arbitrary if it bears "no rational
    connection'" to the law's purpose.96 A law is grossly
    disproportional if it is rationally connected to the
    objective but its impact on section 7 interests are so
    extreme as to be "completely out of sync with" the
    objective.97 Both principles require that the court
    carefully consider the objective of the impugned law.98

    45. With the MMPR struck down, there was no law imposing

    the
    150 gram cap on patients, only the order of Justice Manson
    which was retained in later regimes.

    46. Defendant needs better proof of harm:
    68. With respect to shipping costs, Harris alleges that
    he is registered with Health Canada for personal or
    designated production.102 As they may produce cannabis
    for themselves, personal or designated producers are

    not
    required to ship cannabis at all. Moreover, the claim
    fails to explain how any shipping costs infringe the
    plaintiff's rights under section 7. While in Allard,

    the
    cost of commercially produced cannabis was deemed
    relevant to the extent it precluded patients from
    accessing their medicine,103 there is no suggestion in
    the present case that the higher shipping costs
    associated with more frequent small shipments of
    cannabis pose such a barrier for the plaintiff.

    47. Unlike the Garber plaintiffs who grow at home,

    Applicant
    Harris has a Designated Grower in Quebec with cheaper Hydro
    power. So the impact of the shipping limit is big. Having

    to
    pay $35 for 240 packages per year, having his Designated
    Grower travel back and forth from the Post Office 240 times
    a year, does pose a barrier to access. And such shipping
    costs have never been raised before this Court nor in B.C.

    48. Crown advises changing delivery location when leaving
    home:
    69. Finally, with respect to his ability to go on
    holiday, Harris alleges that the public possession
    limits restrict the number of days he can spend
    traveling. However, the Act and Regulations permit a
    patient or designated producer to ship a limited supply
    of cannabis to another location in Canada.
    In addition, patients registered to obtain cannabis

    from
    a licensed producer may request a change to the

    shipping
    address on their registration certificate.

    49. Applicant should not have to request a change of
    shipping address just because he's leaving home for 2 days.
    Judge Cullen did find that geographical confinement did
    violate the mobility right under S.6 of the Charter.

    S.15 RIGHT TO EQUAL TREATMENT

    50. Crown argues Harris failed to raise S.15 before:
    Although the Harris claim also includes a new

    allegation
    concerning section 15, there is no reason that the
    plaintiff could not have raised this issue before. It
    would be a further abuse of process if plaintiffs could
    re-litigate issues simply by framing them as new causes
    of action.

    51. Even if Harris did not argue S.15 back in 2014 when the
    court did not deal with it anyway, there are here more
    plaintiffs who were not present then and are raising the

    S.15
    equality for the first time right now. If Defendant

    succeeds
    in not letting Harris claim that right, then what reason is
    there not to allow the others to rely on S.15? Another Lead
    Plaintiff could be designated to claim that S.15 right.

    52. Defendant notes requirements:
    71. To succeed under section 15, a claimant must
    establish
    (1) that a law or state action creates a distinction
    based on an enumerated or analogous ground, and
    (2) that this distinction is discriminatory in the

    sense
    that it fails to respond to the claimant's actual
    capacities or reinforces or perpetuates existing
    disadvantage. The Harris claim does not meet either

    part
    of this test,
    72. First, high cannabis dosage is not among the

    grounds
    of discrimination enumerated in section 15. The
    plaintiff also does not allege that his dosage is an
    "immutable or constructively immutable" personal
    characteristic or that high dosage has historically

    been
    a basis for stereotyping or discrimination, which would
    be required for recognition as an analogous ground,
    73. Second, even if high dosage qualified as analogous,
    the claim contains no facts to show that the possession
    limits are discriminatory.

    53. The actual regulation "30x daily or 150 grams" shows
    discrimination between not only high- and low-dose
    cannabis users but between cannabis users and narcotics
    users. Harris can carry 1.5 days supply while others may
    carry 30 days of even Fentanyl.

    54. Defendant notes high-dosers possess shorter supply:
    73... While the practical effect of these public
    possession limits is that patients using larger daily
    quantities may possess a shorter supply while in

    public,

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