Harris v. Canada

Harris v. Canada
Court (s) Database
Federal Court Decisions
Date
2019-05-07
Neutral citation
2019 FC 553
File numbers
T-1716-18, T-1765-18, T-1913-18
Decision Content
Date: 20190507
Dockets: T-1765-18
T-1716-18
T-1913-18
Citation: 2019 FC 553
Ottawa, Ontario, May 7, 2019
PRESENT: The Honourable Mr. Justice Brown
Docket: T-1765-18
BETWEEN:
ALLAN J. HARRIS
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
Docket: T-1716-18
AND BETWEEN:
RAYMOND LEE HATHAWAY
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
Docket: T-1913-18
AND BETWEEN:
MIKE SPOTTISWOOD
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
ORDER AND REASONS
I. Nature of matters
[1] These reasons deal with the Crown’s motion to strike the action brought by the Plaintiff Allan J Harris [Harris], and a motion brought by Harris for an order granting him interim relief against the possession and shipping limit of 150 grams of medical cannabis. These reasons also deal with related actions brought by the Plaintiffs Raymond Lee Hathaway [Hathaway], and Mike Spottiswood [Spottiswood], whose actions have been case-managed together with that of Harris. Harris and Hathaway are the lead cases in this group. Each Plaintiff seeks a declaration regarding the unconstitutionality of provisions relating to medical cannabis.
A. Summary re Harris action
[2] Harris is authorized to use 100 grams of cannabis for medical purposes each day, which works out to a kilogram every 10 days and approximately three kilograms a month. He seeks a declaration that various provisions of the Cannabis Regulations, SOR/2018-144 [Cannabis Regulations] which impose a 150-gram cap on possession and shipment of cannabis in a public place are unconstitutional because they pose a threat of fines or incarceration on him and others with large prescriptions like his. Harris claims the 150-gram cap violates his rights to life, liberty, and security of the person under section 7, and discriminates against him contrary to his equality rights under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. Harris submits that because of this cap he is unable to travel more than a day and a half away from his home.
[3] In summary, I am dismissing the Crown’s motion to strike, save certain phrases in Harris’ claim. In addition, I am granting Harris a ten-day exemption to the 150-gram possession and shipping cap, such that he may possess and ship 1,000 grams of medical cannabis.
B. Summary re Hathaway action
[4] Hathaway claims he is disabled by an inoperable tumour on the spine and has ACMPR Authorization to use 100 grams of cannabis each day. He seeks a declaration that various provisions of the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 [ACMPR] imposing a 150-gram cap on possessing and shipping cannabis are unconstitutional on the ground that they pose a threat of fines or incarceration to patients with larger prescriptions. The regulations Hathaway relies upon were repealed in 2018, he was given an opportunity to amend but did not and therefore his action is dismissed as moot.
C. Summary re Spottiswood action
[5] Spottiswood claims he has authorization to use cannabis for a “permanent medical condition” without further detail. He seeks a declaration that subsection 273(2) of the Cannabis Regulations, requiring that the period of use of a prescription, or “medical document”, must not exceed one year, violates section 7 Charter rights to life and security of permanently ill patients such as himself. He claims that patients affected by the Marihuana Medical Access Regulations, SOR/2001-227 [MMAR] (the regulatory part of the medical marijuana regime in place between 2001 and 2014) whose permits were extended since 2014 have no problems remaining authorized without renewing their permits. In summary, I am striking Spottiswood’s action as well without leave to amend.
II. History and basis of right to medical marijuana
[6] I outlined the basis of the right to medical marijuana in Harris v Canada, 2018 FC 765 [Harris I] at paras 11-12, and in doing so relied on the decision of Allard v Canada, 2016 FC 236, per Phelan J [Allard action]:
[11] The right to possess and cultivate marijuana for medical purposes has been litigated in Canada for almost two decades. A brief overview of this history is provided by Phelan J. of this Court in Allard v Canada, 2016 FC 236, from which I take the following:
1 This is a Charter challenge to the current medical marihuana regime under the Marihuana for Medical Purposes Regulations, SOR/2013-119 [MMPR] brought by four individuals. It is important to bear in mind what this litigation is about, and equally, what it is not about.
2 This case is not about the legalization of marihuana generally or the liberalization of its recreational or life-style use. Nor is it about the commercialization of marihuana for such purposes.
3 This case is about the access to marihuana for medical purposes by persons who are ill, including those suffering severe pain, and/or life-threatening neurological conditions. Such persons also encompass those in the very last stages of their life.
4 This is another decision in a line of cases starting with R v Parker, (2000) 49 OR (3d) 481, 188 DLR (4th) 385 (ONCA) [Parker], and culminating in R v Smith, 2015 SCC 34, [2015] 2 SCR 602 [Smith], that have examined, often with a critical eye, the efforts of government to regulate the use of marihuana for medical purposes and the various barriers and impediments to accessing this necessary drug.
5 Like other cases, this most recent attempt at restricting access founders on the shoals of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter], particularly s 7, and is not saved by s 1.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.
…
…
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
6 The Court has concluded that the Plaintiffs’ liberty and security interest are engaged by the access restrictions imposed by the MMPR and that the access restrictions have not been proven to be in accordance with the principles of fundamental justice.
[12] Suffice it to say that the right to access marijuana and cannabis for medical purposes is guaranteed by the Charter, an undoubted legal matter having been decided by this Court, the Supreme Court of Canada, and as well, by Superior Courts in the provinces. In addition, the right of access to marijuana and other cannabis products for medical purposes is a right conferred upon individuals, on application, by the Governor in Council in subordinate legislation, i.e., regulations issued pursuant to the relevant legislation.
[7] The following relevant jurisprudence, legislation, and regulations set out the context for the parties’ submissions and the Court’s analysis:
R v Parker (2000), 49 OR (3d) 481(CA), per Rosenberg JA [Parker] declared the marijuana prohibition in section 4 of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA] invalid because it infringed the respondent’s section 7 Charter rights to security of the person and liberty.
Canada enacted the MMAR in 2001 in response to Parker. The 2014 pre-repeal version of the MMAR authorized possession of dried marijuana at 30 times the prescribed daily dosage; and provided the Authorization to Possess which expired 12 months after its date of issue: section 11, subsection 13(1). Notably there was no cap at that time.
Canada introduced the Marihuana for Medical Purposes Regulations, SOR/2013-119 [MMPR] in 2013, which soon after repealed the MMAR. MMPR introduced a 150-gram possession cap on dried marijuana to the lesser of 30 times the daily dosage or 150 grams.
Four Allard plaintiffs with daily dosages not exceeding 25 grams commenced actions in this Court to determine whether the then-new MMPR regime limited their Charter rights. They sought pre-trial relief to preserve their rights under the repealed MMAR provisions, including the absence of the cap on possession enacted in the MMPR regime. The cases were decided in Allard v Canada, 2014 FC 280, per Manson J, aff’d 2014 FCA 298 [Allard motion]. Justice Manson granted an interim pre-trial constitutional exemption to the Allard plaintiffs, based on section 7 of the Charter. Justice Manson allowed them to continue to rely on the Authorizations to Possess issued under the MMAR, and to continue to grow their own cannabis under the Personal Use Production Licenses or the licences of other designated persons issued under the repealed MMAR regime. However, Justice Manson, on the facts before him, did not relieve the Allard plaintiffs from the new 150-gram possession cap created by the MMPR because he was unconvinced it would subject the Allard plaintiffs to irreparable harm until trial: Allard motion at paras 126, 128.
After Justice Manson’s decision in the Allard motion, numerous claimants, including Spottiswood and a Plaintiff named in Schedule “A” in this proceeding (Arthur Jackes), brought actions in this Court based on “kits” downloaded from a website, claiming that both the repealed MMAR and the then-newly enacted MMPR regimes violated their section 7 Charter rights. Many of them moved for interim relief seeking constitutional exemptions from the prohibition against marijuana in the CDSA for personal use: In re numerous filings seeking a declaration pursuant to s 52(1) of the Canadian Charter of Rights and Freedoms, 2014 FC 537, per Phelan J [Kit Case motion] at paras 9, 10. Justice Phelan’s Order dated June 4, 2014 stayed these actions pending a decision in the trial of the Allard action.
In British Columbia, four plaintiffs challenged the validity of the MMPR as infringing their sections 6, 7, and 15 Charter rights. They had been prescribed daily dosages of 36, 60, 100, and 167 grams per day. They brought an application for an interim injunction/exemption to preserve and extend their authorization to produce, transport, store, and possess cannabis: Garber v Canada (Attorney General), 2015 BCSC 1797, per Cullen ACJSC [Garber] at paras 1-3. The Associate Chief Justice made an Order on the same terms as had Justice Manson in the Allard motion, except that Garber went on to exempt the plaintiffs from the 150-gram possession cap imposed by the MMPR: Garber at para 148. The Associate Chief Justice said that “a determination of irreparable harm is case-specific” and found that the Garber plaintiffs are “constrained in their ability to travel for any reason [emphasis in original]” possibly contrary to sections 7 and 15 of the Charter: Garber at para 127. The Garber decision was not appealed.
In 2016, Justice Phelan made a final determination regarding the Allard action plaintiffs’ actions (daily dosages not exceeding 25 grams) and found the MMPR contrary to section 7 of the Charter and unconstitutional. However, Justice Phelan found the 150-gram possession cap to be constitutional: Allard action at paras 286-88. Allard’s motion for reconsideration was dismissed in Davey v Canada, 2016 FC 492, by Phelan J [Davey]. This decision was not appealed.
In response to the Allard action, Canada enacted a new medical cannabis regime in 2016, the ACMPR. The ACMPR retained the 150-gram possession cap.
In 2017, Justice Phelan rendered his judgment In re subsection 52(1) of the Canadian Charter of Rights and Freedoms, 2017 FC 30 [Kit Case judgment]. All 316 actions were dismissed without leave to amend because the claims were moot, in that they relied on the repealed MMAR and MMPR regulations which by then had been repealed, the pleadings were deficient, the claims disclosed no reasonable cause of action, and were frivolous, vexatious, and an abuse of process.
In 2018, Parliament enacted the Cannabis Act, SC 2018, c 16 [Cannabis Act] to generally legalize cannabis possession. However, the Cannabis Act continues to provide restrictions on the medical use of cannabis. Under the Cannabis Act, adults may possess up to 30 grams of dried cannabis in public.
Also in 2018, the Governor in Council enacted the Cannabis Regulations, which replaced the ACMPR. In the result, clients registered on the basis of a “medical document” (which I liken to a prescription) and registered persons, among others, that is, users of cannabis for medical purposes are allowed to possess in public of the lesser of 150 grams or 30 times the daily quantity of dried cannabis authorized by their health care practitioner in a medical document. The Cannabis Act and Cannabis Regulations place no limits on possession in a non-public place. A health care practitioner is a medical practitioner or a nurse practitioner, as defined by reference to provincial legislation.
III. Issues
[8] The issues of Harris’ Amended Statement of Claim [Harris claim] and Spottiswood’s Statement of Claim [Spottiswood claim] will be discussed together. This Court will determine:
Hathaway
Harris and Spottiswood
Should Harris be granted interim relief?
i. Should Hathaway’s Statement of Claim be struck?
ii. Should the Harris claim and or the Spottiswood claim be struck?
IV. Relevant legislation including regulations
[9] Subsection 272(1) of the Cannabis Regulations sets out who may authorize a “medical document” (prescription) for medical cannabis:
Authorization — health care practitioner
Autorisation — praticien de la santé
272 (1) A health care practitioner is authorized, in respect of an individual who is under their professional treatment and if cannabis is required for the condition for which the individual is receiving treatment,
272 (1) Si le cannabis est nécessaire en raison de l’état de santé d’un individu qui est soumis à ses soins professionnels, le praticien de la santé est autorisé, à l’égard de cet individu :
(a) to provide a medical document;
a) à fournir un document médical;
…
…
[10] A “health care practitioner” is defined as “except as otherwise provided, a medical practitioner or a nurse practitioner.” A medical practitioner generally means an individual who is entitled under the laws of a province to practise medicine in that province. A nurse practitioner generally means an individual who is entitled under the laws of a province to practise as a nurse practitioner or an equivalent designation and is practising as a nurse practitioner or an equivalent designation in that province. See: Cannabis Regulations, subsection 264(1).
[11] A “medical document” is defined as “a document provided by a health care practitioner to support the use of cannabis for medical purposes”: Cannabis Regulations, subsection 264(1).
A. 30- and 150-gram possession limits
[12] Harris claims relief against the possession and shipping limits set out in the Cannabis Regulations.
[13] Paragraph 8(1)(a) of the Cannabis Act authorizes adults to possess cannabis in the amount equivalent to 30 grams of dried cannabis in a public place:
Possession
Possession
8 (1) Unless authorized under this Act, it is prohibited
8 (1) Sauf autorisation prévue sous le régime de la présente loi :
(a) for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;
a) il est interdit à tout individu âgé de dix-huit ans ou plus de posséder, dans un lieu public, une quantité totale de cannabis, d’une ou de plusieurs catégories, équivalant, selon l’annexe 3, à plus de trente grammes de cannabis séché;
...
...
[14] Sections 266 and 267 of the Cannabis Regulations set out limits on possession in a public place for individuals in different circumstances. The limit is set at 150 grams of dried cannabis: for adults such as Harris: see paragraph 266(2)(b) (Client registered on basis of medical document), (3)(b) (Registered person). Harris also claims relief with reference to subsections 290(e) (Refusal – purchase order), 293(1) (Replacement of returned cannabis), paragraph 297(e)(iii) (Monthly reports), and subparagraph 348(3)(a)(ii) (Requirements – distribution or sale) of the Cannabis Regulations, however in my view his claim falls under paragraph 266(3)(b) as a Registered person. As such he is entitled to possess “150 g of dried cannabis” in public.
[15] The 150-gram limit in the Cannabis Regulations referred to above is in addition to the amount authorized in the Cannabis Act: see section 268 of the Cannabis Regulations:
Cumulative quantities
Cumul des quantités
268 Any quantity of cannabis that an individual is authorized to possess under section 266 or 267 is in addition to any other quantity of cannabis that the individual may possess under the Act.
268 La quantité de cannabis qu’un individu est autorisé à avoir en sa possession au titre des articles 266 ou 267 s’ajoute à toute autre quantité de cannabis qu’il peut avoir en sa possession sous le régime de la Loi.
[16] Therefore the total cannabis limit for Harris is 180 grams in a public place. A “public place” is defined as “any place to which the public has access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view”: Cannabis Act, subsection 2(1).
[17] There is no prescribed limit to possession of cannabis in a non-“public place” such as a home or private dwelling, in either the Cannabis Act or the Cannabis Regulations.
B. 150-gram limit on shipping
[18] Harris also claims relief with reference to a 150-gram cap on shipping cannabis. The provisions of the Cannabis Regulations that impose this limit in relation to shipping are: paragraph 290(1)(e) (Refusal – purchase order); subsection 293(1) (Replacement of returned cannabis); and subparagraphs 297(1)(e)(iii) (Monthly reports) and 348(3)(a)(ii) (Requirements – distribution or sale).
C. Duration of prescription or medical document
[19] Spottiswood claims relief with reference to subsection 273(2) of the Cannabis Regulations, which prescribes the maximum period of use of a medical document:
Maximum period
Période maximale
273 (2) The period of use specified in a medical document must not exceed one year.
273 (2) La période d’usage indiquée dans le document médical ne peut excéder un an.
V. Law on a motion to strike
[20] I reviewed the law on a motion to strike in Harris I referred to above, at paras 14-18:
[14] In Lee v Canada, 2018 FC 504, at para 7, Heneghan J stated the following in respect of the test for motions to strike:
The test upon a motion to strike a pleading is set out in the decision in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, that is whether it is plain and obvious that the pleading discloses no reasonable cause of action. According to the decision in Bérubé v. Canada (2009), [2009 FC 43] at paragraph 24, a claim must show the following three elements in order to disclose a reasonable cause of action
i. Allege facts that are capable of giving rise to a cause of action
ii. Indicate the nature of the action which is to be founded on those facts, and
iii. Indicate the relief sought, which must be of a type that the action could produce and that the court has jurisdiction to grant
[15] The moving party bears the onus of meeting the test set out by the Supreme Court of Canada in Hunt v Carey Canada Inc, [1990] 2 SCR 959 [Hunt]: Al Omani v Canada, 2017 FC 786 per Roy J. at paras 12-16:
[12] The test to strike a claim under Rule 221 sets a high bar. First, it is assumed that the facts stated in the statement of claim can be proven. The Court must be satisfied that it is plain and obvious that the pleading discloses no reasonable cause of action assuming the facts pleaded are true: R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45 at para 17; Hunt v Carey Canada Inc, [1990] 2 SCR 959 [Hunt] at p 980. The Defendant bears the onus of meeting this test: Sivak v Canada, 2012 FC 272, 406 FTR 115 [Sivak] at para 25.
[13] In Hunt, the Supreme Court sided with the articulation of the rule in England to the effect that “if there is a chance that the plaintiff may succeed, then the plaintiff should not be “driven from the judgment seat” (p. 980). A high bar indeed to succeed on a motion to strike. Some chance of success will suffice or, as Justice Estey said in Att. Gen. of Can. v Inuit Tapirisat et al, [1980] 2 SCR 735, “(o)n a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that “the case is beyond doubt” (p.740).
[14] To show a plaintiff has a reasonable cause of action, the statement of claim must plead material facts satisfying every element of the alleged causes of action: Mancuso v Canada (National Health and Welfare), 2015 FCA 227, 476 NR 219 [Mancuso] at para 19; Benaissa v Canada (Attorney General), 2005 FC 1220 [Benaissa] at para 15. The plaintiff needs to explain the “who, when, where, how and what” giving rise to the Defendant’s liability (Mancuso, para 19, Baird v Canada, 2006 FC 205 at paras 9-11, affirmed in 2007 FCA 48).
[15] Thus, there appears to be a balance. On one hand, a chance of success is enough for the matter to proceed. On the other, the material facts must be pleaded in sufficient detail such that the cause of action may exist. The purpose of pleadings is to give notice to the opposing party and define the issues in such a way that it can understand how the facts support the various causes of action. As the Court of Appeal put it in Mancuso, “(i)t is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought” (para 16). The Plaintiffs note that pleadings can still proceed despite being “far from models of legal clarity” (Manuge v Canada, 2010 SCC 67, [2010] 3 SCR 672 at para 23). But it remains that adequate material facts must be pleaded. Parties cannot make broad allegations in their statement of claim in the hope of later going on a “fishing expedition” to discover the facts: Kastner v Painblanc (1994), 176 NR 68, 51 ACWS (3d) 428 (FCA) at p.2.
[16] On motions to strike, no evidence outside the pleadings may be considered (except in limited instances that do not apply here). This is expressly enacted by Rule 221(2) and confirmed by the authorities: Pelletier v Canada, 2016 FC 1356 [Pelletier] per Leblanc J. at para 6:
[6] As is well-settled too, no evidence outside the pleadings may be considered on such motions and although allegations that are capable of being proven must be taken as true, the same does not apply to pleadings which are based on assumptions and speculation and to those that are incapable of proof (Imperial Tobacco, at para 22; Operation Dismantle v The Queen, [1985] 1 SCR 441, at p. 455 [Operation Dismantle]; AstraZeneca Canada Inc. v Novopharm Ltd., 2009 FC 1209 at paras 10-12).
[17] In Pelletier, Leblanc J. also stated that while a Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies due to drafting deficiencies, the claimant must plead the facts upon which he makes his claim and is not entitled to rely on the possibility of new facts turning up as the case progresses:
[7] In this regard, while the Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies due to drafting deficiencies (Operation Dismantle, at p. 451), it is incumbent on the claimant to clearly plead the facts at the basis of its claim:
[22] […] It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted”. (Imperial Tobacco) (My emphasis)
[18] In Mancuso v Canada (National Health and Welfare), 2015 FCA 227, the Federal Court of Appeal said at paras 16-17 that plaintiffs must plead material facts in sufficient detail to support the claim and relief sought:
[16] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought. As the judge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.”
VI. Parties’ positions and analysis
A. The Hathaway claim
[21] I will deal with the Hathaway claim first. It is based on statutory and regulatory frameworks that have been repealed. It discloses no cause of action because the requested relief cannot be granted. I allowed Hathaway to amend his claim, so that he could refer to the current Cannabis Act and Cannabis Regulations. He chose not to do so. Nor did he file any material in support of his claim. I see no point in granting leave to amend again, and decline to do so. The Hathaway claim will be dismissed without leave to amend.
B. The Harris and Spottiswood claims
[22] The Defendant submits several bases for striking the Harris and Spottiswood claims. I will review the following issues to determine whether the Harris and/or Spottiswood claims should be struck: (1) Are the Plaintiffs attempting to relitigate their prior claims? (2) Is the Court’s previous affirmation of the constitutionality of possession limits and the annual medical authorization requirement binding? (3) Do theses actions fail to disclose a reasonable cause of action? (4) Are the actions scandalous, frivolous, and vexatious?
(1) Are the Plaintiffs attempting to relitigate their prior claims?
Defendant’s position
[23] The Defendant submits these Plaintiffs are attempting to relitigate prior claims contrary to judicial comity being an abuse of process. Rule 221(1)(f) of the Federal Courts Rules, SOR/98-106 provides:
Motion to strike
Requête en radiation
221(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
221 (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :
...
...
(f) is otherwise an abuse of the process of the Court,
…
f) qu’il constitue autrement un abus de procédure.
…
[24] The Defendant submits that the Federal Court of Appeal characterizes judicial comity as an aspect of stare decisis, only to be departed from where there are strong/cogent reasons for doing so: Apotex Inc v Pfizer Canada Inc, 2013 FC 493, per O’Reilly J, aff’d 2014 FCA 54 [Apotex] at paras 11-15. Strong reasons means the Plaintiffs must establish either subsequent decisions have affected its validity; the prior decision failed to address some binding case law or statute; or the prior decision was unconsidered or given in circumstances where trial exigencies did not allow for full argument: Apotex at para 14.
[25] Further, the Defendant submits abuse of process bars proceedings where res judicata requirements are not met but a party nevertheless attempts to relitigate issues in a manner, potentially undermining the integrity of the administration of justice: Toronto (City) v CUPE, Local 79, 2003 SCC 63 [CUPE] at para 35. If a matter is relitigated and the same result is reached, relitigation will have been a waste of resources and judicial economy will be undermined. Conversely, if a different result is reached, the inconsistency will undermine the entire judicial process by diminishing its authority, credibility and aim of finality: CUPE at para 51.
[26] Harris and Spottiswood brought prior kit claims alleging MMAR and MMPR provisions infringed patients’ section 7 Charter rights. Like the current claims, their prior claims challenged the constitutionality of the prohibition on the 150-gram possession cap and requirements for the annual medical authorization to use cannabis. The prior claims were adjudicated in the Kit Case judgment, which struck the claims because they contained a “dearth of detail” concerning the plaintiffs’ personal circumstances, the pleadings were frivolous and vexatious, and raised matters of settled law, and for judicial comity of the Allard action.
[27] The Defendant also submits there is no suggestion prior proceedings are tainted by fraud or that it would be unfair to apply the prior findings to this case. Moreover, the claims are an abuse of process because it was open to the Plaintiffs to appeal their prior claims, but they declined to do so. And there is no reason Harris could not have raised his section 15 of the Charter claims before, which the Defendant submits is a further abuse of process.
Plaintiffs’ position
[28] 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.
[29] As I understand them, the Plaintiffs agree the 150-gram possession cap and one-year medical document renewal requirement (raised by Spottiswood) were raised previously, but they distinguish their cases on the facts. The Court notes that the 150-gram possession cap was upheld by Justice Manson in the Allard motion and by Justice Phelan in the Allard action. The Court also notes that the one-year medical authorization renewal requirement was upheld in R v Beren, 2009 BCSC 429, leave to appeal refused 2009 SCCA No 272 [Beren] at paras 33(e), 94-95; see also the Kit Case judgment by Justice Phelan at para 36 who held the general requirement for medical authorization is constitutional.
[30] The Plaintiffs submit the Allard action did not consider an allegation of “fraudulent scientific evidence leading to genocidal undermedication.”
[31] Regarding the necessity of “cogent reasons”, the Plaintiffs note that Garber granted high-dose users (like Harris) a ten-day supply by way of constitutional exemption in excess of the 150-gram possession cap, resulting in one 167-gram-per-day patient having a possession limit over 1.6 kilograms every ten days. There is a difference the Plaintiffs submit, in the evidence and patient dosage from the motion before Justice Manson, who heard from low-dose users, i.e. those with medical authorizations for 5 to 25 grams per day.
[32] As for not raising section 15 before, the Plaintiffs submit there are more plaintiffs now who were not present then, and that they are raising section 15 equality rights for the first time right now. They submit there is no reason not to allow others to rely on section 15.
Analysis
[33] In my view and based on the facts pleaded in his Statement of Claim, which as required I accept as true, Harris has a medical document entitling him to a very high dose of medical cannabis-100 grams per day. It is clear to me that Harris and others like him are in a very different factual situation from the Plaintiffs before the Court in the Allard motion and Allard action: they only had permission to use between 5 and 25 grams per day. Harris has permission to use far more medical cannabis—between four and twenty times that amount every day.
[34] Frankly, the amount Harris has been prescribed is extraordinarily high: it is in some months more than 3 kilograms. Harris does not state the nature of his illness, nor why he needs so much medical cannabis. At one point the Defendant suggests such a high dose might only be justified by a terminal medical condition. But the Defendant does not submit that Harris must plead the nature of his illness or why so much is required, nor am I persuaded Harris or Spottiswood should be required to do so. The determination of what is required to treat Harris’ medical condition is for the prescribing health care professional to decide, not the Court, at least for the purposes of a motion to strike or for interim relief.
[35] The 2018 Cannabis Regulations enacted by the Governor in Council allow “medical practitioners” and “nurse practitioners” as defined in the province concerned to issue prescriptions for medical cannabis; these prescriptions are called “medical documents.” I take it as a given on the motion to strike—as I must—that Harris’ medical practitioner or nurse practitioner, whichever signed his medical document, approved his very large prescription. If the Defendant seeks to challenge the amount prescribed, contrary evidence is required. However, the Defendant didn’t file contrary evidence to that effect, nor is such evidence generally allowed on a motion to strike.
[36] I conclude the facts pleaded here significantly depart from those before Justices Manson and Phelan in the Allard matters.
[37] Another distinguishing factor between the case at bar and the Allard matters is that the Harris action is brought within a completely new access to cannabis regime, enacted by Parliament in 2018 to generally legalize possession and use, within limits. Access to medical cannabis is no longer a carve-out from a highly restricted criminal law regime set up by the CDSA; the current medical cannabis regime now fits within an entirely new framework and context of generally legalized access to cannabis.
[38] I also note that the Kit Case judgment did not deal with or focus upon high dose profile medical cannabis users such as Harris.
[39] The effect of the previous jurisprudence is also attenuated because in the interim, a constitutional exemption from the 150-gram possession cap was granted by the Associate Chief Justice of the Supreme Court of British Columbia in the Garber case, albeit on an interim basis (as is sought here on the interim motion). The Garber case involved high-dose users with authorization to use between 36 and 167 grams per day for medical purposes, the latter being an even higher dose than prescribed to Harris in the case at bar. Garber changed the legal environment; Garber does not seem to have been appealed.
[40] Given these factors I am not persuaded the Harris claim involves a relitigation of either the Allard or Kit Case matters. Thus, and with respect, I have concluded comity does not apply. In addition, I am not satisfied the Defendant has established an abuse of process; with respect there is no merit to that submission.
(2) Is the Court’s previous affirmation of the constitutionality of possession limits and the annual medical authorization requirement binding?
Defendant’s position
[41] The Defendant says that this Court previously affirmed the constitutionality of the 150-gram possession cap in the Allard action and did so again in Davey, which dismissed the motion for reconsideration of the Allard action: Davey at para 28. The Defendant submits the Plaintiffs do not raise a cogent reason why the Court should depart from the Allard action.
[42] Further, regarding the Plaintiffs’ argument on the high- versus low-dose users of medical cannabis, the Defendant submits that while the four Allard plaintiffs were authorized to use 5 to 25 grams per day, there was evidence in Allard of patients authorized to use larger quantities, some in excess of 100 grams. Nevertheless this Court deemed the 150-gram possession cap constitutional.
[43] Moreover, the Defendant says no weight should be given to Garber on a motion to strike. The Defendant submits 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: Coca-Cola Ltd v Pardhan (1999), 172 DLR (4th) 31 (FCA), per Strayer JA at para 30. Even if the interlocutory injunction decisions were relevant, Justice Manson rejected a similar request for interlocutory exemption from the 150-gram possession cap, and the decision was affirmed on appeal.
[44] The requirement for medical authorization to use cannabis has consistently been held constitutional: Hitzig v Canada (2003), 231 DLR (4th) 104 (Ont CA) [Hitzig] at paras 138-45, leave to appeal refused 2004 SCCA No 5 (“[j]ust as physicians are relied on to determine the need for prescription drugs, it is reasonable for the state to require the medical opinion of physicians here” at para 139); Beren (“we conclude that the MMAR implicate the right of security of the person of those with the medical need to take marihuana” at para 95); Kit Case judgment (“It is settled law ... that the requirement for medical authorization is constitutionally sound” at para 36). Hitzig notes its holding may be revisited if physician participation ever declined to a point that a medical exemption was practically unavailable: at para 139. However, Spottiswood does not raise this, but instead appears to take issue with patients needing to annually visit a health care practitioner. Beren rejects a similar argument that the requirement for annual renewal was arbitrary as applied to terminally ill patients and those with prescribed chronic conditions.
Plaintiffs’ position
[45] The Plaintiff Harris says that the Allard action’s discussion of the 150-gram possession cap considered relatively trivial inconveniences. For a 25-gram patient to not leave home for more than six days and replenish five times a month seems minor. However the 150-gram possession cap is grossly disproportional for a person with approval to use far larger amounts of medical cannabis. This is evidenced where Justice Phelan said in his reasons, “[t]he possession cap still allows one to possess more than their necessary amount of marijuana”: Allard action at para 288. This is not true of those allowed to use far larger amounts for medical purposes.
[46] Further, the Allard plaintiffs sought a declaration to strike the 150 gram per day possession in a public place cap so as to leave no maximum cap; however, the court would not grant such an overbroad remedy. Here, however the Plaintiffs only seek to strike the “150 gram maximum”; but not the “30-day maximum” cap.
[47] Regarding reliance on Garber, the Plaintiffs submit the decision’s finding that high-dose users would suffer irreparable harm is now in evidence; and there have been no decisions in this Court dealing with high-dose medical cannabis users and dying pati