• TURMEL: Crown Reply to challenges against 150-gram and 1-year caps (1/2

    From John KingofthePaupers Turmel@1:229/2 to All on Wed Feb 27 20:21:45 2019
    From: johnturmel@gmail.com

    TURMEL: Crown Reply to challenges against 150-gram and 1-year caps

    JCT: Remember, we've Responded to their arguments at: https://groups.google.com/forum/#!topic/alt.fan.john-

    turmel/6yhsDQT9ArY

    Points addressed there:

    1. Other drugs all get 30 days
    2. Garber precedent get 10 days
    7. "Few if any" means some.
    12. Caps never argued
    15. Phelan ruled "moot."
    [28] can claim against new regime!
    16. No 150-gram ruling
    19. Believe Court continued with mooted issues?
    21. Garber undermines 150 gram
    28. Phelan not deal with under-medicated
    33. Allard against "150 gram or 30x"
    35. Cullen found irreparable harm
    43. What different tests?
    47. Harris has D.P.
    51. Equal Treatment not raised by Harris before, others now
    61. Other courts affirmed need for doctor, not annual
    65. Spottiswood on MMAR, so Harris filed. Do they reply?

    So here's the Reply of the Crown to our points:

    WRITTEN REPRESENTATIONS IN REPLY
    DEFENDANT'S MOTION TO STRIKE

    CR: A. OVERVIEW

    1. Of the plaintiffs in these proceedings, only the
    plaintiff in the Harris claim has opposed Canada's motion to
    strike.

    JCT: Only Allan Jeff Harris has opposed the motion because
    he's the Lead Plaintiff.

    CR: However, he has failed to address the fundamental
    defects in the claims that are identified in Canada's
    motion. The claims should accordingly be struck without
    leave to amend.

    JCT: Yes, he's sticking with the fact he is authorized for
    100 grams per day and the 150 grams is as inconvenient for
    him as it was for the Garber defendant. And that no court
    has ever affirmed the annual doctor visits.

    CR: B. THE PLAINTIFFS' PRIOR CLAIMS WERE STRUCK FOR NO CAUSE
    OF ACTION AND AS FRIVOLOUS AND VEXATIOUS

    2. In his response to Canada's motion, the plaintiff
    acknowledges that this Court previously struck
    constitutional challenges by Harris and Spottiswood to the
    150 gram possession and shipping limits and annual medical
    authorization requirement in the former Marihuana for
    Medical Purposes Regulations ("MMPR"). He argues however
    that the prior claims were dismissed as moot and never
    litigated. This is a clear mischaracterization of this
    Court's prior decision.

    JCT: All they have to do is show us where Phelan analysed
    the 150 gram limit with respect to high dosages, not to
    travel and inconvenience, and can't. Since no argument was
    allowed, how could be it mischaracterization to say it was
    never litigated?

    CR: 3. In striking the prior claims, Phelan J. noted first
    that the MMPR had been declared invalid in Allard v Canada
    ("Allard") and had since been repealed and replaced by the
    Access to Cannabis for Medical Purposes Regulations. He
    found that the claims were therefore moot. However, Phelan
    J. then proceeded to consider whether the claims should also
    be struck on other grounds, and found as follows:

    JCT: Without allowing any argument on it, he found:
    [38] I need not go into great detail that the claims
    disclose no reasonable cause of action. I noted that
    neither the users of the Turmel Kit nor Hunt have filed
    claims that contain details of their personal
    circumstances and personal infringement of their rights.
    These pleadings are in marked contrast to the pleadings
    in Allard.

    JCT: Justice Phelan had no right to want to see why the
    doctor prescribed the medication. He had no right to insist
    on playing doctor for which he was not qualified. Sure, the
    Allard plaintiffs were ready to drop their pants when the
    judge wanted to personally check them but we would not do
    what was none of his business.

    [39] This Court in its stay decision referred to the
    "dearth of detail", the vague generalities and hyperbole
    of the Turmel Kit, and the paucity of information on
    personal circumstances. Nothing has changed and no party
    took advantage of the opportunity provided by the Court
    to amend and provide further details. It would be unjust
    to allow amendments at this stage.
    [40] Along the same lines and with respect to the
    "frivolous, vexatious and abuse of process" argument,
    the pleadings fail on this ground also. A pleading is
    frivolous and vexatious if it is argumentative or
    includes statements that are irrelevant,
    incomprehensible, or inserted for colour, as if it seeks
    relief that the Court clearly cannot grant (Simon v
    Canada, 2011 FCA 6, 197 ACWS (3d)485).
    [41] The pleadings, as noted above, suffer from such a
    lack of specificity that it is difficult to respond or
    to regulate the proceedings. Comments in the Turmel Kit
    are overblown, insulting, and argumentative.3

    JCT: Who cares about his opinion on issues he did not permit
    to be litigated. Our point is that he did not permit
    litigation even if he gave an opinion without hearing us.

    CR: 4. It is clear from these statements that the
    plaintiffs' prior claims were struck not only as moot but
    also for failure to disclose a reasonable cause of action
    and as frivolous and vexatious. The plaintiff has identified
    no reason why this Court should depart from those
    conclusions here.

    JCT: It is also clear that they were struck without any
    argument being presented. We made that point, hope Judge
    Brown remembers it.

    CR: C. THE HARRIS CLAIM CONCERNING PUBLIC POSSESSION AND
    SHIPPING LIMITS SHOULD BE STRUCK

    5, The plaintiff suggests that this Court should not follow
    its trial decision in Allard concerning the
    constitutionality of the 150 gram possession limit because
    (1) it has been overtaken by the Garber decision of the
    British Columbia Supreme Court, (2) Allard does not address
    the same issues at this case, (3) the plaintiffs in Allard
    sought much broader relief than is sought here, and (4) the
    judge in Allard was unaware that the 150 gram possession
    limit the was based on "fraudulent" Health Canada data.
    These arguments mischaracterize both Allard and the present
    claims.

    6. First, the plaintiff suggests that Canada relies on the
    Allard trial decision but fails to note the "subsequent"
    Garber decision.4 Garber was issued on October 2, 2015, and
    Allard was issued on February 24, 2016.5 Allard is thus
    clearly the more recent decision, and as a trial decision of
    this Court, it is more authoritative than the injunction
    decision of another court in a matter that did not proceed
    to trial.6

    7. Second, the plaintiff suggests that Allard was not
    concerned with "life and death under-medication," but only
    with whether the 150 gram possession limit restricted
    patients' ability to travel and forced them to purchase
    cannabis more often, which the plaintiff describes as
    "trivial inconveniences." This argument is puzzling in that
    the plaintiffs claim relies on these same inconveniences.8
    JCT: Allard did not consider the fraudulent surveys even if
    we too raise the inconvenience issues herein.

    CR: Moreover, the claim does not contain facts to show that
    the possession limits result in under-medication in the
    plaintiffs case.

    JCT: We do include the surveys and the quotes from there
    but it's just more government shysters lawying.

    CR: The Cannabis Act and Cannabis Regulations do not limit
    the quantity of cannabis that the plaintiff may possess
    except in a public place where he may possess up to 180
    grams of dried cannabis or its non-dried equivalent.

    JCT: So Jeff can't leave home with even a 2-day supply.

    CR: While this may have practical implications for the
    plaintiffs ability to travel, the claim does not allege that
    the ability to travel is a matter of life and death, and the
    plaintiff has not explained why he cannot access cannabis
    while traveling via the various other methods identified in
    Canada's motion.10

    JCT: Sure, he can alert his L.P. to mail it to where he's
    going. But can can't take it there himself.

    CR: 8. Third, the plaintiff suggests that the Allard claim
    sought to eliminate possession limits entirely, whereas the
    plaintiff seeks a much narrower 30-day possession limit.11


    JCT: The Allard claim did try to strike the "30x daily or
    150 gram" cap. It was overbroad.

    CR: This is a mischaracterization of both claims.

    JCT: Don't these lawying shysters make you want to puke?

    CR: The plaintiffs prayer for relief does not request a 30-
    day possession limit, but only a general declaration that
    the 150 gram possession limit is unconstitutional.12

    JCT: Right, it was Allard that tried to strike both.

    CR: While the Allard claim sought a similar declaration,

    JCT: Strike the 150 gram cap and strike the 150 gram or 30
    day cap are not similar.

    CR: it also requested the reinstatement of the former
    Marihuana Medical Access Regulations, which included a 30-
    day possession limit.13

    JCT: But it actually sought to strike 150 or 30x!! No matter
    what else it said. x

    CR: Both forms of relief were rejected in Allard, and
    judicial comity favours the same result here.

    JCT: Just because striking both caps was rejected in Allard
    is no reason to reject striking just the one cap now.

    CR: 9. Fourth, the plaintiff suggests that the judge in
    Allard was unaware that the 150 gram possession limit was
    based on "fraudulent" Health Canada data. 14 However, at the
    time Phelan J. decided Allard, he was also seized of the
    plaintiffs prior claim which included similar allegations of
    fraud. Phelan J. was therefore well aware of these
    allegations. He nevertheless affirmed the constitutionality
    of the possession limit in Allard and proceeded to also
    strike the plaintiffs prior claim.16 There is once again no
    reason to depart from these decisions here.

    JCT: Yes, Judge Phelan was aware of the fraudulent surveys
    backing the 150 gram limit when he didn't overruled his
    fellow judge. But he was just following judicial comity, it
    Manson wanted to under-medicate the patients by a factor of
    9, he must have had good reasons for wanting them dead. But
    yes, Phelan knew about the fraud and let it stand. Nice of
    the Crown to point out he too has blood on his hands.

    CR: 10. The plaintiff also now suggests that the possession
    limits violate section 15 of the Charter in that users of
    narcotics may possess a longer supply of medication than
    cannabis users. This has not been pleaded.

    JCT: It has been pleaded in Paragraph 50. Guess they didn't
    notice the last point in the Statement of Claim. Or they're
    just lawying again.

    CR: In any event, the claim contains no facts to show that
    the use of cannabis as opposed to narcotics is an analogous
    ground or that any distinctions drawn on this basis are
    discriminatory in the proscribed sense.18 Narcotics are
    subject to an entirely different regulatory regime and
    several strict regulatory controls.19 The mere fact that
    this regime may not include an identical limit on public
    possession, in and of itself, cannot render the public
    possession limits on cannabis discriminatory.

    JCT: Showing that the possession limit is worse for non-
    toxic cannabis than killer fentanyl does make a point
    they're rather not see.

    D. THE SPOTTISWOOD CLAIM CONCERNING ANNUAL MEDICAL
    AUTHORIZATION SHOULD BE STRUCK

    11. The plaintiff in the Spottiswood claim has not responded
    to Canada's motion.

    JCT: Jeff who filed the same Statement of Claim has once
    they said Spottiswood had no beef since he was still under
    the MMAR. Guess they didn't notice that they suggested Jeff
    be dealt with Spottiswood!

    CR: Although Harris suggests that his response is filed on
    behalf of himself and Spottiswood,20 Spottiswood has not
    indicated support for Harris' arguments.

    JCT: Who cares? Jeff now speaks for those suffering the 1-
    year cap.

    CR: In any event, the Federal Courts Rules do not permit
    representation by persons other than a solicitor and
    expressly require that individuals seeking to act in a
    representative capacity be represented by a solicitor.21

    JCT: Who cares if Jeff can't speak for Spottiswood though he
    was named Lead Plaintiff for the group.

    CR: Nevertheless, as Harris has recently filed a new claim
    that is substantially identical to the Spottiswood claim,
    Canada will address Harris' arguments relating to the
    Spottiswood claim.

    12. The plaintiff notes that the Spottiswood claim does not
    challenge medical authorization requirements generally, but
    only the requirement that medical authorization be renewed
    annually. He suggests that courts have never addressed this
    issue.22

    JCT: All the cases cited by the Crown only affirm the need
    for a doctor, not annual need! Har har har.

    CR: However, the medical authorization regimes affirmed in
    prior cases have all included similar annual renewal
    requirements,23 and the annual renewal requirement was
    expressly and unsuccessfully challenged in R v Beren.4

    JCT: And not dealt with.

    CR: As noted above, the plaintiffs in the Harris and
    Spottiswood claim also expressly raised the requirement for
    annual renewal in their prior claims, which were struck for
    no reasonable cause of action.

    JCT: For being moot. Judge Phelan did not say that annual
    check-ups for permanently-ill patients was necessary. Or
    they'd show the citation.

    CR: There is once again no reason to depart from these
    decisions here, 13.

    JCT: They can keep lawying all they want but they can't show
    that Judge Phelan found annual check-ups for permanently-ill
    patients was necessary.

    CR: The plaintiff also argues that Beren "offers no
    justification" for the annual renewal requirement and that
    no court has "affirmed the need" for ongoing medical
    oversight.25

    JCT: No court has affirmed the need for ongoing medical
    oversight! They only affirmed the need for original medical
    oversight. After all, cannabis is completely non-toxic. What
    kind of idiot thinks it needs ongoing oversight? Shysters!

    CR: This argument fundamentally misconstrues the nature of
    Charter analysis. It is incumbent on the plaintiff to
    demonstrate that the impugned provision violates his section
    7 rights.

    JCT: Making him do stuff that's unnecessary does violate his
    S.7 rights.

    CR: It is only if he demonstrates such a violation that the
    onus shifts to Canada to justify the provision under section
    1.

    JCT: We have shown no need for it, let Canada justify it.

    CR: The Spottiswood claim contains no facts to demonstrate a
    section 7 violation. The requirement to visit a health care
    practitioner annually is at most an inconvenience.

    JCT: If it takes away your food money, it's more than a
    mere inconvenience.

    CR: As the British Columbia Supreme Court has recently
    affirmed, while laws must allow for reasonable access to a
    lawful supply of cannabis for medical purposes, section 7
    does not require unrestricted access, and mere
    "inconvenience does not engage s. 7."26

    JCT: Making the patient waste financial resources is more
    than mere inconvenience.

    E. THE MOTION SHOULD PROCEED IN WRITING


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