• TURMEL: Crown in Harris appeal for restitution and damages claims (1/4)

    From John KingofthePaupers Turmel@1:229/2 to All on Sat Feb 16 15:52:32 2019
    From: johnturmel@gmail.com

    JCT: This appeals involves Jeff seeking to have the time
    Health Canada ripped off his permit restituted. Judge Brown
    ruled that damages for not getting the full period
    prescribed by the doctor was trivial. Jeff pointed out that
    up to 11 months ripped-off when a permit can cost over
    $2,000 isn't trivial.

    The Crown then cross-appealed Judge Brown's decision that
    them just telling him they found the damages claims for
    delays in processing were frivolous without offering him any
    reason why wasn't good enough. They're asking the Appeal
    Court to rule he didn't need to be given any reasons, he
    should have just done what they asked! Really.

    This is long, repetitive but it's your government's money at
    work. So two ongoing issues in the appeal, Jeff Harris on
    the restitution of the time ripped off being not trivial to
    victims including Steve Vetricek whose application wasn't
    started until 9 months after he'd sent it!

    CR: Jon Bricker and Wendy Wright

    PART I- OVERVIEW

    PART II-STATEMENT OF FACTS

    A. The Regulation of cannabis for medical purposes
    1) The former Access to Cannabis for Medical Purposes
    Regulations
    2) The current Cannabis Act and Cannabis Regulations
    3) The registration process for personal and designated
    production
    B. The present claim
    C. Other claims
    D. The motions judge partially grants Canada's motion
    E. Other motions
    PART III - POINTS IN ISSUE
    PART IV - SUBMISSIONS
    A. Standard of appellate review
    B. The principles on a motion to strike
    C. The Motions Judge erred in failing to strike the claim
    concerning the registration processing time
    1) No constitutional right to produce cannabis,
    2) No violation of section 7
    a) No deprivation of life, liberty or security of the person
    b) The claim concerning renewal is speculative and now moot
    c) No violation of a principle of fundamental justice
    3) The Motions Judge erred in failing to strike the claim
    for Charter damages
    D. No reasonable cause of action concerning the period of
    registration
    2) The claim concerning the period of registration is now
    moot
    E. Leave to amend should be refused
    PART V-ORDER SOUGHT
    PART VI-LIST OF AUTHORITIES
    APPENDIX A-STATUTES AND REGULATIONS

    CR: PART I-OVERVIEW

    1. It is plain and obvious that this claim fails to disclose
    a reasonable cause of action.

    JCT: Imagine saying it's plain and obvious when you're
    calling a judge unreasonable!! "It's not even hard, it's
    plain and obvious, and he didn't see it." Says the Crown.
    I'd bet many defendants in criminal matters may raise that
    but it must be rare to say it's "plain and obvious" he was
    wrong. Usually, you're more apologetic with some a peek at
    your cards.

    CR: The claim alleges that the processing time for
    registration to personally produce cannabis for medical
    purposes violates section 7 of the Charter. However, it
    contains no material facts to show that the processing time
    for registration deprived the plaintiff of life, liberty or
    security of the person, or that the processing time in his
    case was inconsistent with the principles of fundamental
    justice.

    JCT: And wants damages for the losses incurred during the
    unconscionable delay. Did she forget?

    CR: 2. Canada brought a motion to strike. The Motions Judge
    largely dismissed the motion and in so doing, made three
    legal errors. First, he erred in finding that courts had
    already confirmed a constitutional right for patients to
    produce cannabis.

    JCT: It does say that if the patient fulfils the condition,
    the Minister must register the license. What else can that
    mean?

    CR: Second, having incorrectly held that a constitutional
    right to produce cannabis was already established, the
    Motions Judge failed to consider whether the claim contained
    material facts to demonstrate a violation of the plaintiffs
    section 7 rights. Third, in allowing the claim for Charter
    damages to proceed, the Motions Judge failed to consider the
    absence of any material facts to show that damages would be
    appropriate and just.

    JCT: Even if Plaintiffs hadn't already asked? Or because
    they asked for damages officially did the Crown appeal his
    decision to allowing the showing of damages would be
    appropriate.

    CR: 3. However, the Motions Judge properly struck the other
    portion of the claim, which concerned the period of
    registration.

    JCT: It actually converned restitution of the period of
    registration. But why focus on the right issue when you're
    trying to muddy the water.

    CR: He acknowledged that the period of registration was
    shorter than the period of use authorized by the plaintiffs
    health care practitioner. However, he found that this merely
    resulted in the plaintiff having to renew his registration
    sooner, which was perhaps inconvenient but did not violate
    the Charter.

    JCT: All he had to do was order them to give what they'd
    stopped ripping off from newbies back to those who'd been
    ripped off. Order them to restitute the time stolen. And he
    says it wasn't big enough a rip-off to warrant Charter
    protection? Is why we're appealing.

    CR: The plaintiff has identified no error in this
    conclusion, and subsequent legislation has rendered this
    aspect of the claim moot.

    JCT: Only because the old legislation with the flaws is gone
    and we're now stuck with the new legislation with the old
    flaws back on without having been resolved by the courts
    last time.

    CR: The claim should therefore be struck in its entirety,
    without leave to amend.

    So their 3 reasons are
    1) finding that courts had already confirmed a
    constitutional right for patients to produce cannabis.
    2) failed to consider whether the claim contained material
    facts to demonstrate a violation of rights.

    JCT: They asked the judge to adeem Medical License "Start
    Date and "Expiry Date as insufficient facts to demonstrate a
    too-short "period" of time. Wants these three judges to say
    those aren't facts enough.

    CR: Third, in allowing the claim for Charter damages to
    proceed,

    JCT: The part of the claim she forgot to introduce earlier.
    CR: the Motions Judge failed to consider the absence of any
    material facts to show that damages would be appropriate and
    just.

    JCT: Damages for delays in obtaining medication by screw-ups
    in government bureaucracy was asked for and not deemed
    inappropriate. This isn't damages over bad legislation, it's
    damages over bad administration. No need to show malice.
    Just incompetence.

    PART II - STATEMENT OF FACTS

    A. THE REGULATION OF CANNABIS FOR MEDICAL PURPOSES

    1) The former Access to Cannabis for Medical Purposes
    Regulations

    4. The plaintiff filed his statement of claim in September
    2017. At the time, the Controlled Drugs and Substances Act
    ("CDSA") generally prohibited the possession and production,
    of cannabis, except for medical purposes in accordance with
    the Access to Cannabis for Medical Purposes Regulations
    ("ACMPR").1

    5. Under the ACMPR, patients could access, cannabis by (1)
    purchasing it from a commercial licensed producer ("LP"),
    (2) registering with Health Canada to
    personally produce cannabis, or (3) registering with Health
    Canada and designating another individual to produce
    cannabis on the patient's behalf.2

    6. The ACMPR required that patients wishing to purchase or
    produce cannabis by any of these methods obtain a medical
    document signed by a qualified health care practitioner. The
    medical document: had to specify the daily quantity of
    cannabis authorized by the health care practitioner and the
    period of use, which could not exceed one year to allow for
    ongoing review of the patient's needs.3

    JCT: That's none of their business. Making permanetnly-ill
    patients fill out license permit applications annually. It's
    not their job to review the patient's needs, it's his
    doctor's bailiwick.

    CR: The ACMPR also permitted the issuance of multiple
    medical documents, which patients could use to purchase
    cannabis from multiple LPs, or to purchase it from one or
    more LPs while also registering or awaiting registration
    with Health Canada for personal or designated production.4

    2) The current Cannabis Act and Cannabis Regulations

    7. On October 17, 2018, the Cannabis Act ("Act") replaced
    the CDSA as the primary federal Act governing cannabis. The
    purpose of the Act" is to protect public health and safety,
    including by restricting youth access to cannabis, limiting
    { opportunities for organized crime to profit from the
    illicit sale of cannabis, providing access to a quality-
    controlled supply of commercially produced cannabis, and
    enhancing public awareness of the health risks posed by
    cannabis.6

    JCT: They don't have many left to show... Har har har.

    CR: 8. The Act provides that adults may possess a limited
    quantity of cannabis while in a public place.7 Adults may
    access cannabis by producing up to four cannabis plants at
    home, and/or by purchasing a limited quantity of cannabis
    from a provincially regulated online store or, where
    currently available, a retail outlet.8

    9. In conjunction with the Act, Canada introduced the new
    Cannabis Regulations ("Regulations").9 The Regulations
    establish a medical cannabis regulatory regime that closely
    mirrors the former ACMPR, but operates in parallel with the
    new non-medical cannabis regulatory regime.10 Like the
    ACMPR, the Regulations provide that patients with a medical
    document may access cannabis by purchasing it from an LP
    and/or by registering with Health Canada for personal or
    designated production. This is in addition to the cannabis
    that an adult patient may personally produce or purchase
    from a provincially regulated online store or retail outlet
    under the Act.

    3) The registration process for personal and designated
    production

    10. Patients purchasing cannabis from an LP may do so
    directly and are not required to register with Health
    Canada. However, patients choosing personal or designated
    production must register with Health Canada and are subject
    to strict regulatory requirements. These controls aim to
    ensure that the cannabis produced is consumed only with the
    approval of and in quantities authorized by a health care
    practitioner, and is not easily diverted to the illicit
    market or accessed by youth for non medical purposes.

    11. To register for personal or designated production, or to
    amend or renew an existing registration, a patient must
    apply to the Minister of Health ("Minister") and provide the
    following information:

    JCT: They describe all the information sought on the form.

    CR: 14. Registration certificates are valid from the date of
    issuance and expire at the conclusion of the period of use
    specified in the patient's medical document.

    JCT: The Statement of Claim for damages was because their
    registration certificates are NOT valid from the date of
    issuance and expire at the conclusion of the period of use
    specified in the patient's medical document. The Claim for
    damages was because their registration certificates were
    valid from the date the doctor signed and expire at the
    conclusion of the period of use specified in the patient's
    medical document.

    CR: Under the ACMPR, this period was calculated from the
    date that a health care practitioner signed the patient's
    medical document.18

    JCT: And that's what the Claims are about! Paragraph Two,
    not One.

    CR: Following the coming into force of the ACMPR, some
    patients expressed concern that, because Health Canada
    requires time to process applications after the medical
    document is signed, patients were not receiving the benefit
    of the full period of use indicated in their medical
    document.

    JCT: It was the hundreds of patients who filed actions that
    got their notice, patients expressing their concerns pretty
    potently.

    CR: On March 2,2018, the Minister responded to this concern
    by issuing several class exemptions pursuant to section 56
    of the CDSA.19

    15. The class exemptions allowed Health Canada to issue
    registration certificates with expiry dates corresponding to
    the period of use specified in the medical document, as
    calculated from the date of registration instead of from the
    date of the medical document. The exemptions were applied by
    Health Canada to all registration certificates issued after
    March 2, 2018.20

    JCT: Neat that those Class Exemptions said nothing about the
    S.8 still ordering it from the date of the doctors even if
    they just did it from the issuance date from now on to stop
    our beefing. until they could pass the new legislation;

    CR; These exemptions have since been substantively
    incorporated info the new Regulations, which provide that
    registration expires at the conclusion of the period
    specified in the medical document as calculated from the
    date of registration.21

    JCT: They admit H.C. has stopped doing it without mention
    our case if for damages while asking them to order them to
    stop. But we won our point and made them stop. So the last
    issue was getting back what we were shorted.

    16. The Regulations also provide that if a patient submits a
    renewal application prior to the expiry of their existing
    registration, the existing registration remains valid until
    the renewal application is granted or refused.22 This
    addresses the concern raised under the former ACMPR that a
    patient whose existing registration expired and whose 1
    renewal application had not yet been processed, was required
    to destroy their existing cannabis plants.23

    JCT: "A patient!" I think it was closer to 80 patients who
    filed motions for interim relief 270 who filed their
    Statement of Claim.

    On Jan 31 2019, Marco Cruz got tired waiting and took out a
    Statement of Claim to get their attenion, waited a week and
    hit them with a Motion. Judge Brown has ordered the Crown to
    explain why it's taking so long by Feb 15 and he has until
    Feb 22 to Reply. Usually, they "Hop-to-it" to issue the
    permit and mooten the hearing.

    CR: B. THE PRESENT CLAIM

    17. The plaintiff filed his initial statement of claim on
    September 11, 2017.24 On January 24, 2018, Canada brought a
    motion to strike on the grounds that the claim failed to
    disclose a reasonable cause of action and was so bereft of
    material facts as to be scandalous, frivolous and
    vexatious.25

    JCT: It's not enough for the court to know when his
    registration started and ended.

    CR: 18. Rather than respond to Canada's motion, the
    plaintiff filed a motion for leave to amend his claim to
    address the issues raised in Canada's motion and to seek
    additional relief. Canada consented to the proposed
    amendments and the case management judge in Federal Court,
    the Honourable Mr. Justice Brown, granted leave to amend.26
    The plaintiff subsequently filed an amended statement of
    claim. Although the amendments went far beyond those
    proposed in his motion for leave to amend, Brown J. accepted
    the amended claim for filing and granted Canada leave to

    [continued in next message]

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