John KingofthePaupers Turmel
2020-09-22 21:58:46 UTC
TURMEL: Harris 150-gram cap exemption to Supreme Court
JCT: In 2014, Federal Court Justice Manson changed the
possession limit from "30-day supply" like all other drugs
to "30-day supply to a max of 150 grams."
In 2015, 4 high-dosers from BC were granted an exemption to
carry a 10-day supply in "Garber."
Last year, Federal Court Judge Brown dismissed a Crown
motion to strike Lead Plaintiff Jeff Barris' action to
strike the 150-gram cap leaving the 30-day supply and
granted Jeff an interim exemption to carry a 10-day supply
This year, the Federal Court of Appeal (Woods, Pelletier,
Gauthier) overturned the decision to allow the action to
strike the cap to proceed and cancelled the interim 10-day
So here is my draft of the Memorandum for Jeff's Application
for Leave to Appeal. Because all deadlines were suspended
for Covid and the suspension was lifted on Sep 14, it means
the 60 day appeal period ends on Dec 13!
So lots of time to make any changes.
Judge Brown's original decision:
The Court of Appeal judgment discussed herein:
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
Allan J. Harris
Appellant in appeal
Her Majesty The Queen
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
(Pursuant to Rule 25 of the Supreme Court Rules)
TAKE NOTICE that Allan H. Harris applies for leave to the
Supreme Court of Canada, under Rule 25 of the Supreme Court
Rules from the judgment of the Federal Court of Appeal A-
175-19 made on July 21 2020 and for an Order:
A) dismissing the Crown Motion to strike the action;
B) re-instating the interim constitutional exemption to
permit the Applicant to carry a 10-day cannabis supply
pending the resolution of the action.
AND FURTHER TAKE NOTICE that this application for leave is
made on the following grounds:
1) Respondent failure to give Notice of Constitutional
2) Facts were sufficient to show violations;
3) Brown J. correct to follow "Garber."
Dated at Burnaby on Sep _______ 2020
For the Applicant:
Allan J. Harris,
ORIGINAL TO: THE REGISTRAR
COPY TO: Jon.Bricker
Attorney General for Canada
PART I - STATEMENT OF FACTS
1. Under the MMAR, medpot exemptees could possess and
transport a 30-day supply just like any heavy narcotic.
2. Upon enactment of the MMPR, the same 30-day carry was
retained but a 150-gram cap was added thereby causing a new
distinction between low-dose and high-dose patients where
the days of supply limited by the cap is determined by the
equation: Cap (grams) / Dose (grams/day) = # days
3. If patients can carry a 30-day supply of Methadone or
Vicodin or any heavy narcotic, why the distinction for
cannabis? Why do all other drug users get to carry a 30-day
supply but cannabis users only get to carry
4. Pending the adjudication of the "Allard" action to strike
the MMPR, Federal Court Justice Manson extended the MMAR but
imposed the 150-gram cap on MMAR patients. Parliament did
not impose the new cap, Judge Manson did. Then, in striking
the MMPR, Judge Phelan kept the 150-gram cap imposed on MMAR
patients by Justice Manson. The cap was then retained in the
later ACMPR legislation and is herein now challenged under
the Cannabis Regulations regime.
5. In the B.C. Supreme Court Garber challenge to the 150-
gram cap, Chief Justice Cullen granted constitutional
exemptions to possess and ship a 10-day supply to 4 high-
6. Applicant, with other plaintiffs, used a template for an
action to strike the 150-gram cap leaving only the old 30-
day cap. As Lead Plaintiff, Applicant moved for an interim
remedy for the same 10-day carry as granted the Garbers
pending the adjudication of the action for the old MMAR 30-
day supply cap.
7. The Crown filed a motion to strike for no cause of action
due to insufficient facts and opposed the motion for 10-day
interim relief. The Crown failed to file a Notice of
Constitutional Question to strike a constitutional action.
8. On May May 7 2019, Judge Brown dismissed the Crown motion
to strike the action and, citing the Garber precedent,
granted Harris the same interim 10-day cap on possession and
 Harris submits (for himself and others, a point to
which I will return) their claims raise sufficient
facts. While the Defendant criticizes their alleged
"dearth" of facts, the Plaintiffs submit the real issue
is whether the facts are "enough" to support the
essential elements of the constitutional causes of
action. The facts in the Harris claim are the same
necessary facts found sufficient in Garber: (a) the
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 and needs 20 costly couriers a
month, 240 per year. These were the same facts relied
upon by Garber plaintiff Boivin (who likewise had
permission to use 100 grams per day) which was
sufficient to establish a possible violation of Boivin's
section 7 and 15 rights.
 In effect Harris is under a form of home arrest
brought about solely because of the inadequately low
cumulative total possession limit manifesting itself in
the circumstances of his particular case. With respect,
this is an injustice, and more to the point on the
motion to strike, this fact likely establishes a
material breach of Harris' rights to liberty guaranteed
by section 7 of the Charter....
 The restrictions imposed on Harris' right to travel
outside his home town affect important and fundamental
 Harris does not ask to possess any amount "over 150
grams", but seeks only enough for ten days' worth of
use. In other words, he seeks substantially the same
exemption granted to the plaintiff Boivin in Garber who
was granted the right to possess 1,000 grams. Another
plaintiff in the Garber case, with a prescription for
167 grams a day, was granted an exemption entitling him
to possess up to 1,670 grams. Both exemptions were based
on a ten-day supply. Associate Chief Justice Cullen in
Garber found these figures would "strike a balance
between the public interest in limiting the risks to
public safety and public health by avoiding the right to
possess an overabundance of marihuana, and it will limit
the number of medical cannabis users who would benefit
from a challenge to the 150-gram possession cap, while
at the same time ameliorating the restrictions on the
applicants' ability to travel with their medications. It
will also avoid the need for frequent replenishments of
supply": Garber at para 138. I respectfully agree with
9. Judge Brown asked the Crown about extending the remedy to
other high-dose plaintiffs. The Crown appealed.
10. At the Nov 19 2019 appeal hearing, Justice Pelletier
asked whether a Notice of Constitutional Question had been
given since this is a S.52 constitutional issue. Justice
Gauthier noted: "the constitutionality must be argued to
some extent if you say it's frivolous" and concluded "if we
need more submissions, we'll get in touch with you."
11. On July 21 2020, the Federal Court of Appeal Woods J.A.
relays relevant facts:
 The Crown appeals from an order of the Federal Court
(2019 FC 553) which dismissed the Crown's motion to
strike out a claim instituted by Allan J. Harris.
Similar claims filed by other individuals were also
dealt with in the order, but these are not relevant to
 Mr. Harris filed an amended statement of claim which
challenges the constitutionality of certain provisions
in the Cannabis Regulations, S.O.R./2018-144 relating to
medical cannabis. In particular, Mr. Harris alleged the
provisions in question violated the section 7 and
section 15 Charter rights of individuals with large
prescriptions for medical cannabis. Mr. Harris also
sought a personal constitutional exemption from these
provisions until a final decision was rendered.
 The Crown brought a motion to strike out Mr. Harris'
claim in its entirety without leave to amend, and
opposed his motion for interim relief. The Federal Court
dismissed the Crown's motion, but deleted parts of the
claim that used inflammatory language as well as Mr.
Harris' reference to "life" under his section 7 claim.
It otherwise allowed Mr. Harris' claim to proceed and
granted him the interim relief requested.
 In this appeal, the Crown submits that the Federal
Court erred in not striking out the claim in its
entirety. It requests that the claim be struck without
leave to amend, with costs.
 For the reasons that follow, I would allow the
Summary of claim
 Mr. Harris is one of the lead plaintiffs in a group
of similar cases involving self-represented plaintiffs
who are authorized to use large amounts of medical
cannabis each day. Mr. Harris himself states he is
authorized to use 100 grams of cannabis for medical
purposes each day.
 In his amended statement of claim, Mr. Harris takes
issue with the public possession and shipping limits on
medical cannabis set out in the Cannabis Regulations as
applicable to individuals who are prescribed higher
doses of cannabis. These limits allow individuals with
medical authorization to possess in public or to ship
the lesser of 150 grams or 30 times their daily dosage.
 In particular, Mr. Harris seeks "a declaration that
Sections S.266(2)(b), (3)(b), (4)(b), (6)(b), (7),
S.267(b), (3)(b), (4)(b), (5), S.290(e), S.293(1),
S.297(e)(iii), S. 348(a)(ii), in the Cannabis
Regulations (SOR 2018-144) imposing a 150-gram cap on
possessing and shipping cannabis marijuana [.] are
unconstitutional on the grounds they pose a threat of
fines or incarceration to the lives of patients with
larger prescriptions, some in excess of 150 grams per
day, that violate their S.7 & S.15 Charter Rights to
Life, Liberty, Security and Equality not in accordance
with principles of fundamental justice to not be
arbitrary, grossly disproportional, conscience-shocking,
 Citing his section 15 rights, Mr. Harris also seeks
"the right to carry the same 30-day supply as smaller
dosers by striking down the 150 gram cap on possession
and shipping and leaving the 30-day supply cap in
 Mr. Harris claims the possession and shipping
limits cause the following problems for individuals with
large prescriptions for medical cannabis:
- Mobility: The limit restricts the mobility of
individuals with large prescriptions. While individuals
prescribed under 5 grams a day can carry enough
medication to leave their homes for 30 days, an
individual prescribed 10 grams may only possess enough
for 15 days. Similarly, an individual prescribed 20
grams may only leave her home for a week; 50 grams, for
only three days; and 100 grams, a day and a half.
Finally, individuals prescribed 150 grams may carry only
a day's worth of medication. An individual with a 300
gram prescription may only possess enough for 12 hours.
- Shipping: The limit imposes higher shipping
costs on individuals, by requiring more frequent
- Bulk Discounts: The limit precludes access to
bulk discounts from licensed producers.
 In a separate motion, Mr. Harris sought interim
relief by way of a personal constitutional exemption
from the 150 gram public possession and shipping limits
set out in the Cannabis Regulations, such that he could
ship and possess a 10-day supply of medical cannabis.
The Crown's motion
 The Crown moved to strike Mr. Harris' amended
statement of claim on a number of grounds, including
1. It was an attempt to relitigate matters decided in
two other decisions: In "re numerous filings" seeking a
declaration pursuant to s 52(1) of the Canadian Charter
of Rights and Freedoms, 2014 FC 537 [Re Numerous
Filings], and Allard v. Canada, 2016 FC 236, 394 D.L.R.
(4th) 694 [Allard], which affirmed the constitutionality
of the 150 gram limit under the previous medical
cannabis regime. Mr. Harris was one of the plaintiffs in
Re Numerous Filings;
2. The Court's previous affirmation of the
constitutionality of the possession limits is binding;
3. The action failed to disclose a reasonable cause of
4. The claim was scandalous, frivolous and vexatious.
 Before the Federal Court, the Crown also argued
against granting Mr. Harris the interim relief sought.
Federal Court decision
 The motions judge declined to find that Mr. Harris'
claim attempted to relitigate previous issues, and
disagreed that he was bound by the previous
jurisprudence to affirm the constitutionality of the
 He determined that the facts pled by Mr. Harris
differed significantly from those before the Court in
Allard and the Re Numerous Filings decisions as those
decisions did not focus on high-dose medical cannabis
users like Mr. Harris. Further, he noted these cases
concerned an entirely different access to cannabis
regime. Finally, the motions judge referenced Garber v.
Canada (Attorney General), 2015 BCSC 1797, 389 D.L.R.
(4th) 517, in which the British Columbia Supreme Court
granted the plaintiffs a constitutional exemption from
the 150 gram limit under a previous medical cannabis
regime on an interim basis pending trial. According to
the motions judge, Garber attenuated the effect of both
Allard and Re Numerous Filings.
 With respect to Mr. Harris' section 7 claim, the
motions judge determined that Mr. Harris had pleaded
sufficient facts such that it was not plain and obvious
that the claim should fail. The motions judge found that
the possession and shipping limits likely engaged Mr.
Harris' liberty interest, as he was unable to carry
enough medication away from his home to permit more than
a day and a half of travel. He found that the limits
likely engaged Mr. Harris's security of the person
because Mr. Harris could be subject to fines or
imprisonment if he chose to exercise "his Charter-
protected right to travel more than a day and a half
from his home" (at para. 72). The motions judge
expressed concern that imprisonment would likely
infringe Mr. Harris's right to security of the person,
given his circumstances. However, he declined to find
that Mr. Harris' right to life was engaged and struck
 With respect to Mr. Harris' section 15 claim, the
motions judge determined there was a possibility that
the section 15 claim could succeed. He noted that the
limit appeared to create a distinction based on
disability, and stated that the distinction may be found
 Finally, the motions judge determined that Mr.
Harris' motion for interim relief should be granted.
With reference to the three-part interlocutory
injunction test set out in R.J.R. MacDonald v. Canada
(Attorney General),  1 S.C.R. 311 at 334, 111
D.L.R. (4th) 385, he concluded that Mr. Harris had
established a serious issue as he could not travel for
more than a day and a half from his home. Irreparable
harm, according the motions judge, was made out by the
possibility that Mr. Harris's section 7 and section 15
rights were likely infringed by the restrictions he
faced under the Regulations. Finally, on a balance of
convenience, the motions judge found the public interest
favoured Mr. Harris' "Charter-protected right to travel
more than a day and a half from his home" (at para. 87).
Issues and standard of review
 The central issue in this appeal is whether the
Federal Court erred in failing to strike Mr. Harris'
claim in its entirety. If no such error was made, the
Court must also consider whether the Federal Court erred
in granting Mr. Harris an interim exemption....
 The test on a motion to strike an action is
generous to plaintiffs: a claim will only be struck if
it is plain and obvious, assuming the facts pleaded to
be true, that the pleading discloses no reasonable cause
of action (R. v. Imperial Tobacco Canada Ltd., 2011 SCC
42 at para. 17,  3 S.C.R. 45)...
 In my view, and in light of these requirements, the
Federal Court made palpable and overriding errors in
finding that Mr. Harris pleaded sufficient facts to
support either his section 7 or section 15 claim.
Construing his claims as generously as possible, Mr.
Harris's amended statement of claim fails to disclose
sufficient facts to support that
(1) the law deprives individuals with large
prescriptions of their liberty or security interests;
(2) any deprivation of these rights under section
7 is not in accordance with the principles of
fundamental justice; or
(3) that the impugned provisions create a
distinction based on disability, and that distinction is
discriminatory such that section 15 is engaged.
 The motions judge found Mr. Harris had pled
sufficient facts to establish a potential deprivation of
both his liberty and security interests. In particular,
he found that Mr. Harris "was under a form of house
arrest" (at para. 62) as the limits leave him "unable to
travel anywhere more than a day and a half from his
home" (at para. 62). Similarly, he suggested Mr. Harris'
security of the person could be infringed if Mr. Harris
were to travel and subsequently face imprisonment (at
 Respectfully, the facts pleaded were insufficient
to allow the motions judge to draw these conclusions.
Mr. Harris offers an inadequate factual basis to support
the contention that the shipping and possession limits
actually operate to preclude Mr. Harris or other
individuals with large prescriptions from travel.
Similarly, there are insufficient facts to conclude the
limits force Mr. Harris or other large-prescription
patients to choose between their health and
 Put simply, there is very little in the amended
statement of claim on which the Federal Court could
reasonably assess whether a deprivation could be made
out. At this juncture, I would pause to contrast the
current case with other medical cannabis cases such as R
v. Parker, 49 O.R. (3d) 481, 188 D.L.R. (4th) 385 (C.A.)
and Allard v. Canada, 2016 FC 237. Advancing similar
claims regarding the constitutionality of medical
cannabis regulations, the plaintiffs in those cases
provided the Court with ample detail on which to
evaluate their claims. Such detail is not present here.
 In my view, the motions judge further erred when he
failed to consider whether Mr. Harris had pled
sufficient facts to support the claim that any
deprivation was not in accordance with the principles of
fundamental justice. Plainly, Mr. Harris's amended
statement of claim does not.
 The motions judge gave little to no comment on this
issue, aside from suggesting the unspecified impact of
the limit was "grossly disproportional for a person with
approval to use [large] amounts of medical cannabis",
with no reference to Mr. Harris' amended statement of
claim. Again, the amended statement of claim does not
present sufficient facts to support such a conclusion,
even on a generous reading.
 Mr. Harris also pleads insufficient facts to
- the law is at odds with its purpose, such that
it is arbitrary;
- the law's impact on the section 7 interests of
individuals with large prescriptions of medical cannabis
is so extreme as to be completely out of sync with the
objective, such that it is grossly disproportional; or
- that the law would "shock the conscience" of
 I conclude that Mr. Harris has not provided
sufficient support for his claim that the law deprives
individuals with large prescriptions for medical
cannabis of their liberty or security of the person, nor
that any such deprivation offends the principles of
fundamental justice. Without these elements, his claim
cannot go forward. I would strike the claim.
 In my view, the motions judge erred in finding
there were sufficient facts to show that the possession
and shipping limits draw a distinction based on
disability or that the limits are discriminatory. The
limits treat users differently based on the amount of
cannabis they require to treat their condition. Mr.
Harris' claim alleges as such: his section 15 claim
seeks "the right to carry the same 30-day supply as
smaller dosers." The amended statement of claim is
devoid of pleaded facts to support that the limits
distinguish between users based on a disability or an
analogous ground. Mr. Harris has also failed to provide
a factual foundation for a finding of discrimination.
 Accordingly, Mr. Harris has not pled sufficient
facts to support a section 15 claim. I would strike this
claim as well.
 Claims based on the Charter are often complex and
require a strong factual basis.... But his claim was
almost totally devoid of any factual foundation.
 As this appeal can be resolved on these errors
alone, I find it unnecessary to engage with the Crown's
arguments that Mr. Harris' claim forms an abuse of
process or violates judicial comity. Similarly, I
decline to comment on the Federal Court's remarks
regarding a "Charter-protected right to travel." I will
leave the issue whether such a right exists for another
 Given the above conclusion, it follows that the
Federal Court erred in granting interlocutory relief.
Mr. Harris' motion for interlocutory relief should be
 I would allow the appeal, and set aside the
decision of the Federal Court. Giving the order the
Federal Court should have given, I would strike Mr.
Harris's claim in its entirety without leave to amend
and dismiss Mr. Harris' motion for interlocutory relief.
"Judith Woods" J.A.
"I agree. J.D. Denis Pelletier J.A."
"I agree. Johanne Gauthier J.A."
PART II - QUESTIONS IN ISSUE
12. A) Did the Motion to Strike lack a Notice of
B) Were the Authorization and Dosage sufficient facts to
show unconstitutional deprivation in violation of Charter
S.7 and unconstitutional distinction in violation of Charter
S.15 not in accordance with fundamental justice?
C) Was Brown J. correct to follow to the "Garber" precedent?
PART III- STATEMENT OF ARGUMENT
A) NO NOTICE OF CONSTITUTIONAL QUESTION
13. Though Justice Gauthier noted "the constitutionality
must be argued to some extent if the Crown says the claim of
unconstitutionality is frivolous" and asked why no Notice of
Constitutional Question had been filed, upon receiving no
answer, the Court moved on and have now failed to adjudicate
14. The Crown arguing that the facts do not show a
constitutional violation is as constitutional an argument as
Applicant arguing that they facts do. In moving to strike a
S.52 claim of constitutional violation, Respondent submits
Justice Pelletier was correct and that a Notice of
Constitutional Question should have been given herein as
well. The Appellant failed to file a Notice of
Constitutional Question below and therefore, Judge Brown's
dismissal of the motion was therefore justified for other
reasons unraised and now known.
B) "AUTHORIZATION" AND "DOSAGE" ARE SUFFICIENT FACTS
15. Judge Brown noted that he only needed to know that
Harris was Authorized for 100 grams/day like Boivin to find
the relevant facts were the same.
C) GARBER V. HMTQ IS VALID PRECEDENT
16. The purpose of a precedent is to set out how a situation
should be handled. Brown accepted Garber as a valid
precedent with the same facts and thus ruled the same.
17. Sadly, the Court of Appeal could not the documentation
of the Parker and Allard cases which have nothing to do with
the dosage cap but could not comment on the Garber case
which was on all fours with this case.
18. The Crown noted in their Memorandum Para. 93:
93. The Motions Judge also noted the requested exemption
was "substantially the same" as the exemption granted in
Garber. However, Garber is distinguishable. It was based
on extensive evidence from the Garber plaintiffs
concerning their medical circumstances, their experience
using cannabis and other treatments, and how they were
personally affected by the possession limits pending
trial. There was no similar evidence in this case.
19. Though the requested exemption was "substantially the
same" as the exemption granted in Garber which was based on
extensive evidence showing their medical circumstances,
etc., Judge Brown did not need to hear about the same
effects of the cap on the same dosage prescription again.
Knowing the equation works the same for both sets of facts,
he could rule the same.
20. Garber provided all the evidence and patient testimony
to show the unconstitutional deprivations from the cap on
high-dosers. Garber had the Manson Allard interim decision
stating the actual average Canadian dosage was 17.7
grams/day though Judge Manson imposed the 150 gram cap based
on Health Canada estimates of between 1-3 grams/day! The cap
was based on an average 6 times too low.
21. Judge Brown did not need to hear all the woes again
though the Court of Appeal rules failure to give evidence of
those woes is fatal to the cause. When they could have read
about all the woes caused to Boivin in exactly the same
situation as Harris, why do they need to have Harris repeat
the same woes over the same dosage to the Court again? What
use are precedents if they have to be repeated completely?
22. Justices Woods, Pelletier and Gauthier say Justices
Cullen and Brown are completely wrong with zero chance of
showing any violation. Justice Cullen looked at patient
evidence and found the cap an unconstitutional violation not
in accordance with fundamental justice which he remedied.
Justice Brown looked at the same relevant facts (minus the
same woes) and found the cap an unconstitutional violation
not in accordance with fundamental justice which he remedied
in exactly the same way as in Garber. But it seems the Court
of Appeal did not look at Garber.
PART IV - SUBMISSIONS CONCERNING COSTS
23. This is a question of national import. Applicant
accepted to be lead plaintiff for many other high-dose
plaintiffs and prays the savings for the Crown of dealing
with only one file already outweigh any costs sought
PART V - ORDER SOUGHT
A) dismissing the Crown Motion to strike the action;
B) re-instating the interim constitutional exemption to
permit the Applicant to carry a 10-day cannabis supply
pending the resolution of the action.
Dated at Burnaby on Sep ______ 2020
For the Applicant:
Allan J. Harris,
JCT: So what more could I do but publish what Brown said,
what they said, and let the laughter begin.
1) They ducked the Constitutional Question issue they
2) They said they didn't seen enough facts after the first
judges said they did;
3) They focused on Parker and Allard and missed Garber.
If you can add to the arguments, now's the time to let us