Allard et al v. Canada FCTD T-2030-13 and FCA A-174-2014
A. Status of Trial preparation and developments and interlocutory/interim Appeal and Cross Appeal Updates:
April 2017
As I have stated previously, the Allard final decision of Mr. Justice Phelan of February 24th 2016 contains in the final judgment an Order that the Order Justice Manson dated March 21, 2014 remains in effect until this court orders otherwise. In other words, the injunction order grandfathering many MMAR patients whose authorizations to possess were valid on March 21, 2014, and whose personal production or designated grower licenses were valid on September 30, 2013 continue to be valid at the specified locations and in the specified amounts notwithstanding the expiry dates on them, to ensure that patients continue to get "reasonable access".
Once the ACMPR came into effect on August 24, 2016 I recommended that those of you grandfathered under the MMAR make applications under the ACMPR for the same ability to possess and produce or have a designated grower do so for you to see if you are able to obtain the same dosage, plant count and storage amount so that we have some evidence to present to the court as to whether or not the ACMPR is providing "reasonable access".
I ask you, if you were not getting "reasonable access" and experiencing problems in your ACMPR location and process to please send an email to me, headed "patient communications" at jconroy@johnconroy.com detailing what you had before and providing documents in support and detailing the problems experienced with the ACMPR and its process and supplying any documents in support. This will enable me to produce affidavits attaching your statements of complaint and experiences to counter any effort on the part of the government to end the injunction order if that should occur.
If your problems are with your physician/doctor in relation to authorizing your use of cannabis, or your dosage, this is not caused by the ACMPR, except to the extent that it carries forward the role of doctors as gatekeeper from the MMAR. The Canadian Medical Association and Provincial Colleges of Physicians and Surgeons have not so far endorsed the medical legitimacy of cannabis, and doctors who support patients in the use of cannabis expect to do so under significant professional scrutiny. Many are not willing to take this on. If you feel your reasonable access to cannabis is impeded by not being able to find a doctor willing to authorize your medical use, please send an email statement to my office at jconroy@johnconroy.com indicating the details of your situation. Your statement may suggest whether legal proceedings would be in order, but it may also enable you to get medical assistance by enabling me to share your difficulties with a group of doctors entitled "PMC - Practitioners for Medicinal Cannabis", a nationwide network of physicians who support the informed use of cannabis in patient care. Upon receipt of your email statement I will forward it, with your permission, to the Coordinator of that group to determine whether they can assist you, in your province. This is a preferable route than simply filing a complaint with the College against the doctor as this leads to sympathetic doctors being investigated and threatened and reduces the pool of doctors available to assist.
For your information from my review of the new proposed Cannabis Act, that the government proposes to have in place by July 1, 2018, it appears that by section 158 of the proposed Act that, subject to regulations made under 161(1) of that Act, that "registered persons" (namely patients), if regulations made under subsection 139 (1) that come into force on the commencement date refer to registered persons, then every individual who is a registered person under the ACMPR immediately before the commencement day of the Cannabis Act will continue to be a registered person until the expiry of their registration or unless it's canceled before that and will be subject to any regulations made under s.139(1) and the same applies to designated persons under the ACMPR. In other words, it appears that the plan is to essentially continue the ACMPR regulations as regulations under the Cannabis Act, perhaps with some changes.
The same provision is made for "clients" of licensed producers under the ACMPR and further provides that applications under section 35 for a license under the ACMPR or under section 95 to import section 103 to export will be transitioned into regulations under the new Act and applications that are in process on the commencement date of the new Act will be deemed to be applications under section 62 of the new Cannabis Act. The same will apply to patients applying to be "registered persons" or a person applying to be a "designated person" under the ACMPR, where no final decision has been made on their application on the date of commencement of the new Cannabis Act, if regulations made under subsection 139(1) that come into force on the commencement day provide for the making of such applications.
I suspect that the ACMPR will be transitioned into regulations on this Cannabis Act, but we will have to wait and see exactly what the government does.
November 10th, 2016
The "substantial indemnity" award of costs:
Justice Phelan awarded "substantial indemnity costs" against the Defendant Canada, the federal government, for matters arising out of the trial itself (not all of the other hearings, appeals, etc.).
What does "costs" mean? It does not mean "everything you have paid or owe your lawyers, including all expenses incurred on your behalf, and all of their outstanding unpaid bills." Only certain items and certain expenses are claimable against the other party, according to the rules of court and the court's discretion.
The "costs" that are permissible to be claimed against the opposite party are governed by the Rules of the Federal Court of Canada in Part 11 in Rules 400 through 422, that set out the discretionary powers of the court over the amount and allocation of costs and the factors that may be considered in the exercise of this discretion. The court may fix all or part of any costs by reference to a set tariff or it can award costs on a percentage of the assessed allowable costs on what is known as a "solicitor client" basis. Essentially, that is what the court has done here by ordering that the Plaintiffs recover costs on a "substantial indemnity" basis, which means a substantial but not complete reimbursement of the "solicitor client" costs, the claimable actual legal fees and expenses under the Court Rules.
We prepared written submissions as to what Canada should pay by way of allowable costs and expenses, which we submitted to Canada, and after careful consideration of the government's reply it was ultimately agreed that we should recover the sum of $684,756.80 as legal costs and expenses determined on a "substantial indemnity basis", and we ultimately consented to an Order fixing that amount accordingly, in November, 2016.
While the total billings per lawyer, including taxes by way of GST and PST, exceeds $1,010,363.00 it was initially determined that a claim of $951,523.13 should be advanced by way of allowable costs arising from the trial. However, after analyzing the government's response in detail we agreed to a 15% reduction in our total claim for matters/items that upon review we agreed were not allowable, such as costs for obtaining the injunction where the court ordered that each party bear its own costs, thereby reducing the total costs claim to $808,794.66. We also agreed after due consideration of previous cases that the term "substantial indemnity" is regarded as essentially meaning 80% of total claimable legal fees plus allowable expenses.
Consequently the agreed amount came to the sum of $647,135.73 to which was added the disbursement/expenses as adjusted of $37,625.00 plus a credit for our Federal Court of Appeal costs of $6,706.00 and a debit for the Defendant Canada's costs on 4 motions of $6610.93 to arrive at a final agreed figure of $684,756.80.
Consequently,the amount in the Court Order is the amount agreed upon as representing 80% (substantial indemnity not full indemnity) for allowable costs claims and allowable expenses under the court rules. After taking into account all expenses and the total time and fees billed by all 5 lawyers over the 3-4 years of litigation and funds received through fundraising, this will pay all expenses and a substantial amount of all the lawyers' bills but will leave a shortfall of $112,769.74 from the total amount of legal fees incurred.
These further funds will either be raised through further fundraising or may be realized upon settlement or completion of the class-action suit for the invasion of patient's privacy by the Health Canada letter to patients that is ongoing and in which a number of patients have pledged in writing a percentage of their damages in that case.
October 9th, 2016
Everyone is very grateful for the work of the MMAR Coalition (now Cannabis Rights Coalition) in raising substantial funds initially in late 2013 and throughout to enable us to take the action, obtain the injunction pending trial in March, 2014, obtain the final order in the patient's favor in February, 2016 and requiring the government to restore essentially the MMAR by August 24, 2017. The Task Force on Legalization will report to the government in November, 2016 and the government will apparently commence the legislative process towards legalization in the spring of 2017 and obviously there will be more changes in relation to the "reasonable access for medical purposes" in a legal regime instead of being an exception under a criminal law statute - namely the Controlled Drugs and Substances Act.
Here is the October 9, 2016 update from the MMAR Constitutional Challenge link on my webpage, with some slight modifications and emphasis, and additions that sets out my current opinion and instruction/advice to all "medically approved" patients:
Those of you who are covered by the Allard decision, and in particular the injunction Order of March 21, 2014 of Justice Manson continue to be protected by that Order and the final Order "until this Court orders otherwise" as per Justice Phelan, February 24, 2016 - 2016 FC 237;
Those of you who were not covered by Allard may now apply under Part 2 of the ACMPR since August 24, 2016 to register to produce for yourself or to have a designated person produce for you at the production site that is specified in the application. This enables those of you who wish to change your previous MMAR site to now apply to produce at the new location. The ACMPR application is not a renewal nor a transition and you do not provide any of your old medical documentation in support of your application. You have to get a new "medical document" under the ACMPR and provide the "original" of that document with your application to register;
I recommend that those of you covered by the Allard injunction and Orders also apply under the ACMPR for the same coverage that you have under the MMAR as the provisions of the ACMPR are substantially if not identical to the MMAR in terms of the formulas in relation to dosages per day. You need to get a new " medical document" from your physician/doctor and as under number 2 above, you do not send in MMAR documents but the 'original' of that document. This way you may be covered under both the Allard injunction and the ACMPR before any new changes are made. Further, you will not simply be at the mercy of the Courts further order whatever that might turn out to be;
If you experience problems obtaining the same thing under the ACMPR as you had on the MMAR, please do NOT call my office, but prepare a statement of the problems that you have experienced that limit what you had or continue to have under the MMAR that arise from the ACMPR so we can see what problems the new regulations pose for patients and can submit that to the court to demonstrate the problems when it comes to that court making any further orders. This should be sent by snail mail or email to my office or to the MMAR Coalition at cannabisincanada@gmail.com;
If your problems are with your physician/doctor in relation to authorizing your use of cannabis, or your dosage, this is not caused by the ACMPR, except to the extent that it carries forward the role of doctors as gatekeeper from the MMAR. The Canadian Medical Association and Provincial Colleges of Physicians and Surgeons have not so far endorsed the medical legitimacy of cannabis, and doctors who support patients in the use of cannabis expect to do so under significant professional scrutiny. Many are not willing to take this on. If you feel your reasonable access to cannabis is impeded by not being able to find a doctor willing to authorize your medical use, please send a statement to my office indicating the details of your situation. Your statement may suggest whether legal proceedings would be in order, but it may also enable you to get medical assistance, by being shared with PMC - Practitioners for Medicinal Cannabis, a nationwide network of physicians who support the informed use of cannabis in patient care.
The ACMPR consists essentially of the MMPR in Part 1 and the MMAR and Part 2 with a few changes. The Task Force on Legalization will report in November and new "legalization" legislation is expected in the spring of 2017 that will further address medical "reasonable access" in the context of a legal regime and not the continued prohibition regime that currently exists - this is where further changes will arise.
Consequently, in my opinion, medically approved patients whether grandfathered under the MMAR or new applicants, including old MMAR applicants who were not covered, should apply under the ACMPR to try and obtain the equivalent of what they had under the MMAR and keep a record of any problems they have on obtaining "reasonable access" and provide them to cannabisincanada@gmail.com to keep a record of them for possible introduction into evidence to show the problems with the ACMPR if this matter goes back to court in front of Justice Phelan in a further effort to modify the injunction order, challenge the doctor gatekeeper role or possibly upon the application of the government to end the injunction order. In my opinion, even if you can't obtain your same dosage as before, you should obtain whatever possible dosage the doctor will allow and then worry about trying to get a greater allowance afterwards. Those with current large dosages should be prepared to explain and justify the need and perhaps also obtain the report of an expert/specialist.
I would recommend that a list also be kept of those doctors that are abusing the process by taking kickbacks from the LPs or charging exorbitant fees be kept as well as one that identifies honest and knowledgeable and informed doctors in this area so that other patients can be referred to and treated by knowledgeable physicians and the others are avoided and perhaps reported to the local College of Physicians and Surgeons.
John W. Conroy QC
Conroy & Company
Barrister & Solicitor
2459 Pauline Street
Abbotsford, B.C.
Canada
V2S 3S1
Webpage: www.johnconroy.com
Email: jconroy@johnconroy.com
Tel: (604) 852 5110
Fax: (604)859 3361
September 12th, 2016
A submission to the Federal Task Force on Legalization consisting of a critique of the ACMPR general provisions in those relating to patient personal production or designated grower production for a patient.
August 27th, 2016
Access to Cannabis for Medical Purposes Regulations, pursuant to the Controlled Drugs and Substances Act, in force August 24, 2016 analysis by John W. Conroy QC.
I have now had an opportunity to review the new regulations 'ACMPR' that came into force a few days ago, namely August 24, 2016, and in my opinion they are, with respect to personal production or designated grower production, essentially the same as the old MMAR provisions in relation thereto.
Those medically approved patients covered by the Allard injunction of March 21, 2014 and continued February 24th, 2016. "Until further order of the court" that to do not need to make any changes can either continue under that status or apply under the ACMPR. It might be wise to do the latter to avoid the uncertainty of the former, unless there are particular individual benefits to continuing under the injunction status.
New patients and those medically approved patients who were not covered by the injunction, and we were told that there are approximately 10,000 of you out of the total of 38,000 registered MMAR patients as of March 31, 2014, and those of you who need to make any changes to their MMAR documents, even though otherwise grandfathered by the injunction, such as changing the address of your site or sites, can now do so by applying under the ACMPR and it is recommended that you do this as soon as possible.
The government has stated that this is an interim measure, and things may well change further depending upon the outcome of the ongoing consultations by the Task Force on Legalization that is due to report in November recommending how to legalize that the government said it will commence in the spring of 2017.
Given that the government is saying that they will be making more changes in that these are interim measures it is my opinion that those of you still covered by the injunction and being subject to "further order of the court" may be in a more precarious position that those who have applied and been approved under the a ACMPR when the time for further changes come.
The ACMPR regulations are divided as follows:
A General section (Reg.1 to 17) providing for interpretation containing basic definitions and some basic provisions with respect to, possession generally, healthcare practitioners and some other general provisions detailed below.
Part 1 Commercial Production (Regulations 17 through 171) appears to essentially be a reenactment of the Marihuana for Medical Purposes Regulations (MMPR), with some modifications regulating the LP's substantially similarly to the old MMPR.
Part 2 Production for Medical Purposes in Production by a Designated Person (Regulation 172 through 203 - with 204-2253 being reserved) appears to essentially be a reenactment of the Marihuana Medical Access Regulations (MMAR), with some modifications.
Part 3 Transitional Provisions (Regulation 254 through 260) appear to deal primarily with transitional provisions from the MMPR to the ACMPR.
Part 4 Consequential Amendments, Repeal, Application and Coming into force (Regulations 261-283) deal with matters as the title suggests, primarily affecting the Narcotic Control Regulations and repealing the MMPR and sets out that these regulations (ACMPR) came into force on August 24, 2016. The s. 53 Narcotic Control Regulation "prescription" provision remains essentially the same, except importantly, the source of the fresh or dried marihuana or cannabis oil prescribed must come from a licensed producer under old MMPR that has transitioned to the ACMPR or a new LP under the ACMPR.
This update focuses on and is essentially limited to an analysis of the opening general provisions and Part 2 involving Personal Production (PPL) for oneself as the patient or by a Designated Producer (DGL) for the patient and anything relevant arising out of Parts 3 and 4.
Essentially an adult (18+) person who is ordinarily resident in Canada is eligible to produce cannabis (this includes all forms but limits methods of extraction) for their own medical purposes as a registered person under these regulations. If you meet the requirements of the regulations to register then the Minister must issue a license - it is not a discretionary matter. The amount that you can produce, possess and store is once again determined initially by you and your doctor determining your dosage per day and that is plugged into what appears to be the same old MMAR formula to determine the result. 3 grams a day gets you roughly 13 to 15 plants. You can only register once at a time but it appears that one can hold a maximum of 2 licenses and no more than 4 licenses are permitted at any particular site.
The general opening sections deal with basic definitions, destruction, drying, equivalency in dried marihuana and substances obtained from a licensed producer and other derived products. Section 2 (3) relates specifically to marihuana produced under Part 2 and other products, and specifies the quantity of any marihuana that is produced under Part 2 or the quantity of any products originating from that marihuana that is equivalent to a given quantity of dried marihuana must be calculated by (a) considering 5 g of fresh marihuana is equivalent to 1 g of dried marihuana; and (b) in the case of products that originated from the marihuana, taking into account the weight of the fresh or dried marihuana that was used to make them.
These opening sections deal with general possession rules and limits, healthcare practitioners, the new "medical document" (s.8) content, the application of Narcotic Control Regulations, police enforcement and the duty to demonstrate to the police on demand that you are lawfully licensed .
These sections also deal with possession, obtaining the substance, fresh or dried marihuana or cannabis oil, who can possess cannabis and who may alter the chemical and physical properties of such substance and contains the general prohibition against the use of organic solvents such as butane, among others. While there is provision that one can obtain one's first seed, etc. from a licensed producer I do not see any obligation to do so if you have been producing for yourself or had a DG do so for you.
Because your permit essentially exempts you from the provisions of the Controlled Drugs and Substances Act (CDSA), so you are required to be able to prove that you are so exempted to a police officer upon demand (Reg.15), just as you have to produce a driver's license to show that you are authorized to drive.
The limitation with respect to prior record within the last 10 years, in relation to a PPL is not as broad a prohibition as it is for one who wishes to be a DGL and pertains only to those who, committed a designated Cannabis offense or designated marihuana offense while they were authorized to produce cannabis under the Act, other than under the former MMAR, or such an offense committed while they were authorized to produce marihuana under the Act, other than these Regulations or by virtue of an injunction order issued by a court. You cannot be a DGL however, if you have been convicted within the preceding 10 years of essentially committing any designated cannabis or marihuana offense, including when you were a youth.
You have to apply to the Minister to be a PPL or DGL, and the application must include the new "medical document" together with other documents and information required as set out in the Regulations. A person who is "responsible for an applicant" can apply on the patient's behalf. The details required are set out in regulation 177 (3) and (4) and includes basic tombstone data as well as the name and type of establishment where it is proposed to produce if it is not a private residence. You or the person responsible for you will have to attest that you or that person will comply with the possession limits set out in s. 6 that appears once again to allow for possession of an equivalency of up to a 30 day supply or 150 g of dried marihuana, whichever is less.
If these basic requirements are met, the Minister must register the applicant. s 178 sets out the detail that must be included in the registration, and includes setting out the maximum quantity of dried marihuana, in grams, that the registered person may possess under the registration, which is the lesser of 30 times the daily quantity of dried marihuana and 150 g of dried marihuana, as well as the maximum number of marihuana plants that may be underproduction at the site and if the production is partly indoors and party outdoors then the maximum number of plants for each production period.
If the proposed site for production is not the ordinary place of residence of the applicant or DG and is not owned by either of them, then the signed consent and personal details of the owner are required.
To renew a registration one simply reapplies with all of the required information and including the previous registration number. Provision is made for cancellation of registrations and notices to those affected and to apply to make amendments. Grounds for refusal of a registration are set out in regulation 183.
Grounds for refusal of registration to produce for one's own medical purposes or to renew or amend such as set out in section 184, and it appears that a person can be authorized to produce under 2 registrations and a production site can contain up to 4 registrations, no more.
Provision is made for changes in sites for production of marihuana plants or the authorized site for the storage of cannabis and the Minister may specify a period within which you may transport cannabis from the old site to the new.
Once you are authorized to produce for yourself, Reg.187 sets out what you can or cannot do in terms of transportation between production sites and storage sites and quantities permitted to be so transported and Reg. 189 sets out those provisions for a DG.
A patient who has a designated grower DG may, if they are an adult, participate in the activities that the DG is doing for them (reg. 188).
Regulation 190 - 191 set out the formula with respect to the maximum number of plants allowed to be produced, and the maximum quantity of dried marihuana or cannabis allowed to be stored. The formulas appear to be identical to those in the former MMAR.
It appears that one might be allowed to produce a quantity of "cannabis, other than marihuana plants" at a different site to the production or storage site as long as the quantity does not exceed the maximum permitted to be possessed.
Once again, there is a prohibition against the cultivation, harvesting, are propagating of marihuana partly indoors and party outdoors simultaneously. I do not understand this provision as certainly in parts of southern BC one would want to start the plants indoors and move them outdoors, perhaps first through a greenhouse, but then finish them indoors to avoid a mold problem arising from heavy dew by mid-August.
Provision is made once again for inspection, allowing an inspector to enter any place where he believes on reasonable grounds cannabis is being produced or stored and a warrant is not required, but the inspector cannot enter a "dwelling place," without the consent of the "occupant".
The balance of the regulations appear to do with security, reporting loss or theft, canceling registrations, the effect and notice requirements and provision for destruction.
The Minister is once again authorized to provide certain information to the police upon request in relation to an investigation and that information can only be used for the purposes of that investigation or for the proper administration, or enforcement of the Act and regulations. The Minister has similar powers to provide information to healthcare practitioner licensing authorities.
John W. Conroy QC
August 27,2016
August 13th, 2016
The announcements with respect to the proposed new Access to Cannabis for Medical Purposes Regulations - ACMPR.
The Federal government announced today what they plan to do, at least on an interim basis to meet the August 24, 2016 deadline, with respect to the new medical marihuana regulations, the ACMPR (Access to Cannabis for Medical Purposes Regulations), but have yet to provide us with the actual regulations, and it is therefore difficult to be sure about the details of announcements until we see ultimate final format in regulations.
Clearly this announcement takes place at a time when the same government is said that they are going to "legalize" access to cannabis and have appointed a Task Force to determine how to do it right. That Task Force mandate includes a consideration of the medical marihuana situation and they are expected to report in November. Legalization is supposed to start in the spring of 2017. Consequently, further changes can be expected.
It is therefore important for all medical patients to make their positions known to the Task Force to ensure that the particular requirements of medical patients are met and are not subsumed and lost as they had been in our neighboring Washington State USA.
Generally, the announcements appear to be a very good response to meet the minimum requirements of the Allard case allowing for the creation of regulations that will continue to enable patients and designated grower or caregivers to continue to produce for themselves or as I understand it, for up to 2 people, and there can be 4 production licenses at one site. The announcement indicates that a 1 g dosage equates to either 5 indoor plants or 2 outdoors or a partial in and out situation and that is similar to the prior formula under the MMAR, but it is not completely clear.
The Allard injunction that grandfathered some 28,000 patients under the MMAR continues until "further order of the court" and it's my understanding that the Federal government is not going to seek to have it discontinued until they are satisfied that all transitioning has taken place that is going to take place and it may be that they will allow it to continue forever if the new regulations would prejudice the MMAR permit holders situation.
So generally, they appear to be good announcements, although the fact that it took them almost 6 months to the deadline to simply modify the MMPR to meet the minimum requirements of the Allard judgment with respect to patient and designated grower production and have left intact some of the restrictive aspects of the MMAR or the injunction, is a further indication that this is an interim measure, and there is more to come.
To answer the most often questioned asked - can I move my license under the MMAR the answer remains that you cannot as these announcements do not modify the injunction in any way and the Court has not acceeded to our multiple requests in that regard. It would appear that if you need to move your site from your MMAR site, you will need to apply under the new regulations ACMPR and have your sites registered under the ACMPR. Once the new regulations are in place, we will hopefully be able to see if that will result in any prejudice or limits to the MMAR license conditions. If not, then the change of address can occur that way without prejudice.
There are 7 areas of preliminary consideration that I have noted below, in no particular order of importance, as follows:
Requiring patients to obtain their starter seeds are clones from an LP is a nonstarter, unless the LP establishes a reputation of producing a particularly good strain. As when Health Canada insisted that patients had to obtain seeds from them I expect that most patients will buy the seeds from the LP, but then either put them in a drawer or throw them out and acquire high-quality seeds from the many seed distributors that now exist in the market. LPs selling seeds will have a booming business for a while, but it will remain to be seen if any of their seed products are accepted by the marketplace. You cannot expect the government to encourage you to buy seeds in the illicit market hence the direction that they must be acquired from the only legal source that currently exists, namely the LPs is perfectly understandable. MMAR producers are not authorized to sell seeds;
It is unclear how the dosage will translate into plant count and storage at the production site, etc., as well as what the patient can store at his or her residence - more information is needed here to see if this limits plant counts and interferes with reasonable access hopefully a person transitioning from the MMAR to the ACMPR will not be prejudiced in relation to their existing situations in that regard;
While Registered Producers and Designated Growers under the a ACMPR will be entitled to assist each other in production I continue to fail to understand how it is an offense to aid and abet or assist somebody who is doing something legal. Producers need to be able to have caretakers for when they go away or are on holidays or that sort of thing, and husbands should be able to help wives and vice versa. So this needs to be clarified. Presumably once legalization occurs this problem should disappear;
They have made no provision to enable patients and designated growers to test their products that I can see. While I think this is not important as some bearing in mind what we do with our other fruit and vegetables that are produced for ourselves, nevertheless, many would like to be able to do this and know what they are producing and specially designated producers supplying their patients. Hopefully the new regulations will enable them to test and again the development of legalization may remove this issue. I remain unaware of any patients who have suffered as a result of their home production for the production for them by designated drawer or from the attendance at the dispensary for that matter - where are the bodies?;
They have continued to impose the 150 g possession maximum on patients imposed in the Allard injunction that was not in the MMAR and which the Court declined to vary after trial. While this limit is fine if it applies to those with low dosage prescriptions when they are out and about from their production or residence it needs to be clarified that it does not apply to the amount they are entitled to store. Furthermore, allowance has to be made for the designated grower who has to get rid of his crop because he's starting another one and needs the storage space and normally ships to the patient by mail. While the 150 g limit does not apply to the DG under the MMAR, the patient who picks it up at the post office would have to make potentially many trips if they can only transport 150 g at a time from the post office back to the residence. Similarly, there is no provision for people working out-of-town or otherwise traveling for longer periods and how they go about accessing the medicine in such circumstances. These types of limits are not placed upon prescribed drugs when people travel or get sent someplace to work far away from the sites. The basis for this limit was to avoid people being accosted on the streets and their marihuana stolen, but I have yet to hear of such a case, and think that scenario is far-fetched, particularly in the existing market where are the bodies?;
They have not addressed the deficiencies in the MMPR LP process that led to the patients "voting with their feet" and going to the dispensaries that in turn resulted in a huge increase in dispensaries in Vancouver and Toronto in particular. Patients have made it clear that the LP system was not providing them with "reasonable access" and the Court agreed but those deficiencies have not been addressed. The Allard case did not seek a declaration in this regard because those developments occurred after Allard was commenced and came out in the evidence at trial as evidence came in about the MMPR process deficiencies. None of the Plaintiffs were persons who were dependent upon a particular LP. They were all Plaintiffs who wish to produce for themselves and have a caregiver do so for them and the deficiencies in the LP MMPR system proved that they should be allowed to continue to produce for themselves, etc. in order to achieve "reasonable access" because the MMPR was not doing so.;
They have not addressed the Dispensary issue that Judge Phelan said was "at the heart of 'reasonable access' for patients". No relief was sought in Allard in relation to dispensaries as no Plaintiffs were dependent upon a particular dispensary that had been closed, thereby denying them, "reasonable access". The evidence demonstrated what was going on in the market and the Court simply recognized that most people don't want to grow for themselves or have somebody grow for them. Nor do they wish to simply look at a webpage and make a mail-order. Patients want to be able to go into a dispensary/ pharmacy/retail store to obtain information and access to varieties of medication. Expanding LPs to include craft growers and to enable all of them to market their product in independent dispensaries may yet occur as we towards legalization. If not, I would see medical patients who are dependent upon dispensaries and who are unable to get what they want or afford what they want from LPs might have an action based on denial of "reasonable access". Remember it is the patients who are entitled to "reasonable access" not the Dispensaries who choose to try and be part of "reasonable access".
Those are my preliminary initial thoughts on reading the government announcements and subject to seeing the actual new regulations on or before August 24, 2016.
July 2016
It is now July 10th, 2016, which means Canada has less than 2 months to go to meet the August 24, 2016 deadline (6 months from February 24th, 2016 when Phelan J. declared the MMPR to be unconstitutional and suspended that declaration for 6 months) to enable Canada to make constitutional Medical Marihuana Regulations that provide "reasonable access" in accordance with his decision.
Attached Is a Copy of the "Judgment" that contains the Order making the declaration and ordering its suspension and importantly ordering that the injunction of March 21, 2014 "remains in effect until this court orders otherwise."
While it is unlikely that Canada will allow the MMPR to become unconstitutional, in effect, by doing nothing by the deadline due the consequences that this would have for all MMPR licensed producers and patients, they might seek an extension of the deadline, possibly based on their intention to commence the "legalization" process by the spring. We have not received such a request, and if we do we would not be inclined to agree unless, at a minimum, provision is made to enable existing patients, covered by the injunction, to move their sites to accommodate their current situations. Arguably, given that section 267 of the MMPR repealed the MMAR, that section would also be unconstitutional if the government does nothing and it may be that the MMAR would be back in force and it has provision for changes to licenses being able to be made, however this is an unlikely scenario.
While counsel has had the opportunity to have considerable discussion with Bill Blair MP and Parliamentary Sec. to the Minister of Justice primarily with respect to the "legalization" issue, counsel for Canada have declined, on instructions from their client, to sit down with counsel for the Plaintiffs to discuss the possible content of the proposed new medical regulations as a way to avoid or minimize further court proceedings on the question of whether or not they meet the test of "reasonable access" as defined and reflected in Phelan J's judgment. We were told that they did not consider a meeting to be necessary at this tiime.
Consequently, whatever the Government of Canada promulgates by way of new regulations will have to be reviewed by counsel, and we will have to go back before Justice Phelan to review them and determine whether or not they provide "reasonable access" and what should occur to the extent that they do or don't.
Importantly, the injunction order of Justice Manson of March 21, 2014 will remain in effect until Justice Phelan, "orders otherwise."
We will be attempting to arrange to get back in front of Judge Phelan at an early time after we receive a draft of the new regulations."
Then on the main webpage under Elliott please post that Canada has appealed that decision and I attach a copy of the notice of appeal to be posted. Also, I attach a copy of the decision in Neary Sask QB to be inserted above Elliott and together with the notice of appeal that Canada has just filed in that case. The heading above Neary should read "Sentencing for Cannabis Offenses when Legalization is Looming".
We await the new Medical Regs on or before August 24, 2016, and if we don't like them I guess we'll be going back to court as the decision is still "until further order of the court". He has declined to expand the injunction terms to cover all medically approved patients and he has declined to allow anyone to change their addresses of any sites pending the new regulations, which should provide for such.
He also refused to make any further declarations with respect to section 53 or the 150 g limit.
The Government of Canada has publicly announced through the Minister of Health that they will not be appealing the decision of Mr. Justice Phelan rendered February 24th, 2016.
This means that the Government accepts that the MMPR is unconstitutional to the extent that it failed to provide "reasonable access" to medically approved patients by taking away their ability to produce for themselves or have a caregiver do so for them. The court found that the constitutional rights of such medically approved patients to liberty and security of their person was deprived in a manner that was inconsistent with the principles of fundamental justice of arbitrariness overbreadth, contrary to S. 7 of the Canadian Charter Rights and Freedoms. In other words, the government acted arbitrarily and went too far or further than necessary.
Following a protocol in constitutional litigation, the Court declared the MMPR to be unconstitutional and has given the government 6 months, from February 24th, 2016 to amend the regulations to make them constitutional.
By not appealing and not seeking an extension of the six-month period this means that the Government will have to amend the regulations by August 25, 2016, and in this regard I expect them to reintroduce the ability of the medically approved patient to produce for him or herself or to have a true caregiver do so for him or her.
While Justice Phelan made reference to the dispensaries being at the heart of the issue and the problems of the current LP system it is too early to tell whether the government is likely to address those issues in its new regulations. Hopefully they will.
As part of his reasons for judgment, Justice Phelan ordered the continuation of the injunctive order of Justice Manson of March 21, 2014 until further Order of the court. It appears to us that this is inconsistent with his reasons in that he omitted or accidentally overlooked ensuring that all medically approved patients would be covered by interim relief and not just those covered by the past injunction.
Further, he made no provision for changes in addresses of production or storage sites pending the new regulations nor make any adjustments or clarifications with respect to the terms of the injunctive order in relation to "dried marihuana" or the 150 g limit and similarly made no reference to the "dried marihuana" limitation in the Narcotic Control Regulation section 53 only the MMPR. Smith addressed the MMAR.
We propose to go back to court on April 22, 2016 before Mr. Justice Phelan in Vancouver, asking him to reconsider and vary his final order pending the new regulations and to take into account the items specified in 6 and 7.above. We will be filing our materials by Thursday, March 31, 2016.
John W Conroy QC
March 24th, 2016
While not official we are advised that the Minister of Health advised a representative of the media (the Globe and Mail) this morning that the government will not be appealing Allard and will be putting new regulations in place within a few months.
Please go to www.johnconroy.com and click on the "MMAR constitutional challenge" link on the left and then scroll down to C. 4 and go to page 43 of the reasons for judgment of Justice Manson and if your authorization to possess (ATP) was valid on March 21, 2014 and your personal production or designated grow permit (PPL/DGL) was valid on September 30, 2013 then they remain valid "until further order of the court" notwithstanding any expiry dates on the face of the documents. However, you can only continue to produce at the site specified and still cannot move and the patient is still subject to 150 g limit when out and about.
The decision of Mr. Justice Phelan of February 24th, 2016 declared the MMPR to be unconstitutional to the extent that it failed to provide for personal production or caregiver production, however, that declaration of unconstitutionality has been suspended for 6 months to enable the Defendant Federal government to fix up the MMPR to comply and make it constitutional. In the meantime his order continues the injunction until further order of the court.
We are considering what remedy to take on behalf of all of those "medically approved patients" who were negatively affected by the MMPR, but who did not fall within the injunction terms and will post an update on the webpage once we have decided what the appropriate remedy is.
Currently, the government has up to 30 days to file an appeal. I am optimistic that they will not do so because of Mr. Justice Phelan's findings of fact, undercutting the basis for any appeal on a question of law and because the current government has promised to legalize. If they do appeal that might delay the 6 month they have to fix up the MMPR.
If they do not appeal the federal government is required to amend the MMPR regulations within 6 months to include an ability on the part of the medically approved patient to produce for themselves or have a caregiver do so for them.
The limitation to "dried marihuana" in the MMAR was struck down in R v Smith in June 2015 and it is now struck down by this decision in the MMPR as well, and arguably in the NCR ( s.53 Narcotic Control Regulations) as it was amended by the MMPR in that regard.
It appears that the 150 g limit on patients when they are out and about continues to apply, but hopefully the government will return it to a 30 day supply in their amendments.
If the government doesn't appeal, we are considering a submission to them to make appropriate modifications in the short term with respect to those who fell through the cracks of the injunction and who need to move their production sites or in the alternative, we will go back to court to seek some remedy in that regard.
The Reasons for Judgment of Mr. Justice Phelan in Allard v. Canada will be made available by the Federal Court on its website at 9 AM on Wednesday, February 24, 2016.
THE 150GRM POSSESSION LIMIT IMPOSED BY MANSON J. ONLY APPLIES TO ATP HOLDERS OR PATIENTS AND NOT DG'S GETTING IT TO THE STORAGE SITE OR PATIENT IF THE PATIENT HAS THE STORAGE SITE.
Regretfully Phelan J. dismissed our motion to vary the injunction and a copy of the Order can be reviewed at this link (see attachment).
I am and expect all of you will also be very disappointed in the ruling as he does not expressly address the ability to change production or other addresses due to unforeseen circumstances and does not set out fully what happened and I obviously failed to persuade him as to the facts and circumstances warranting an ability on the part of approved patients to make changes pending the final decision.
While this decision is probably subject to appeal, at present I believe the best course is to finish the submissions on the relevance and impact of Smith this month and await the court's final decision which will hopefully come soon in the fall.
Consequently :
YOU STILL CANNOT MAKE ANY CHANGES TO YOUR MMAR LICENCES, INCLUDING CHANGING SITES OR ADDRESSES COVERED BY THE INJUNCTION UNLESS AND UNTIL FURTHER ORDER OF THE COURT.
The motion to vary the injunction to enable the change of production or other sites and eliminate the 150 g possession limit that we sought to make as part of our final arguments on May 1, was adjourned to enable Canada to file a response to our materials which they did by way of an affidavit from Eric Costen, the Executive Director Of the Office of Medical Cannabis (formerly the Bureau of Medical Cannabis) at Health Canada. We then cross examined Mr. Costen on his affidavit and the motion was heard on June 3, 2015. Justice Phelan reserved decision, but indicated that the decision on this motion would obviously come before his final decision in the case. We are hopeful that we will have decisions by the fall.
On June 11, 2015 the Supreme Court of Canada unanimously dismissed the government of Canada's appeal from the decision of the British Columbia Court of Appeal (2014 BCCA 322) that had essentially upheld (except as to remedy) the decision of Mr. Justice Johnson of the British Columbia Supreme Court (2012 BCSC 544) striking out the limitation to "dried marihuana" in the Marihuana Medical Access Regulations (MMAR). The SCC decision takes immediate effect, so there is no suspension of the declaration of unconstitutionality and it applies across the country. The effect of the decision is as follows:
all MMAR approved patients across Canada can now legally possess cannabis in all of its forms for medical purposes;
all others, as long as medically approved under either the Marihuana for Medical Purposes Regulations (MMPR) or Narcotic Control Regulations (NCR) can use this decision in their defense to challenge the constitutionality of the limitation that continues in the MMPR and NCR if they possess other forms besides dried and are arrested and charged, or
await the decision of Mr. Justice Phelan of the Federal Court Trial Division in the case of Allard v. The Queen that directly challenges the same limitation in the MMAR, MMPR and NCR, whereas Smith was limited to the MMAR.
When the Smith decision came down we sought permission from Justice Phelan to make a submission with respect to its relevance in Allard, and the Plaintiff’s submission was due June 25 and is linked below. The Defendant Canada has until July 8 to make its submission on this issue.
1. The Motion to vary the injunction to allow for changes is now set for Federal Court in Vancouver, BC for Wednesday June 3rd,2015 probably at 9:30am;
2. John Conroy will be cross examining Eric Costen on his reply affidavit on May 28th,2015 at the Department of Justice Offices(this proceeding is not open to the pubic) in Vancouver and that transcript will be before the court on June 3rd,2015;
3. The motion itself is set out below in the previous update. However the materials relied upon at p.4 need to have the dates corrected to show reliance not only on Jason Wilcox affidavit of August 1st,2014(Ex.23at trial) but also Mike King of January 8th,2015(Ex.20) and Danielle Lukiv of January 7th (Ex.21) and April 24th,2015.
May 20th, 2015
1. No you cannot move your production site locations until the court says so;
2. There is no scheduled hearing date in court on the motion to vary the injunction as yet and when known we will advise by posting;
3. The new appeal arising out of the cross appeal in relation to the injunction was discontinued in favor of proceeding with the motion to vary before Justice Phelan, as the trial judge who has heard all the evidence and because the evidence (the affidavits of Jason Wilcox and Danielle Lukiv) were not allowed to be adduced in the Record in the Court of Appeal as new evidence and that evidence is in the Record before Justice Phelan and the government chose not to cross examine on it. Changes to the injunction will be dealt with by Justice Phelan on the motion to vary.
May 11th, 2015
As set out below Final Oral Submissions commence on Thursday morning April 30th, 2015 at 9:30 AM in the Federal Court Trial Division in Vancouver, BC, before Mr. Justice Phelan and continue May 1st, 2015.
The Plaintiffs will commence with their submissions in accordance with their written Memorandum of Argument as follows;
The Defendant Canada will then present their oral submissions in accordance with their written Memorandum of Argument as follows;
The Plaintiffs then get a Reply in accordance with their written Reply as follows.
In addition, the Plaintiffs have filed a Motion to Vary the terms of the injunction of Manson J. of March 21, 2014 to allow in particular for the modification of that order to enable changes in production sites and other changes for existing MMAR patients seeking the same modifications or remedies as in the Written Argument above, at paragraph 389.
The government said our materials (affidavits as to the call in data line) do not tell the complete story regarding the data line so they have been given until May 15th to file an affidavit and then we have to decide if we are going to cross examine on it or have the matter herd in writing, by May 22 so it will probably be heard in June sometime.
The Government of Canada's appeal, trying to undo the interlocutory injunction pending trial granted March 21st,2014 was dismissed and our cross-appeal was allowed to the extent of sending it back to the case management judge to address the situation of the 2 Plaintiffs/Applicants Beamish and Hebert (the wife patient and husband caregiver) whose possession license expired before the cutoff date that the court below set (March 21, 2014) and had to move their production site before the other cutoff date (Sept. 2013), but were unable to do so until afterwards so he lost his production license. To fix that situation, the judge below will have to 1st backdate eligibility to either March 2013 or September 2013, and also come up with a way for them to change their production site, pending trial.
This should be done for all medically approved patients who are still under the MMAR so hopefully we will be able to get back in front of Manson J. ASAP to move the possession date back to March 2013 or September 2013 at the latest and to enable a procedure to change production sites - we will suggest by filing with Health Canada in order to maintain a national data base pending completion of the trial.
This does mean that those currently grandfathered by the injunction and hopefully the others above will be able to continue until probably at least June 2015 and maybe longer before we get a final decision.
John W. Conroy QC
Conroy & Company
Barrister & Solicitor
2459 Pauline Street
Abbotsford, B.C.
Canada
V2S 3S1
Webpage: www.johnconroy.com
Email: jconroy@johnconroy.com
Tel: (604) 852 5110
Fax: (604)859 3361
The Appeal by the Government and our Cross Appeal was heard on November 24 and the court dismissed the application to adduce no evidence but reserved judgment on the appeal and cross-appeal. This means that they are thinking about it and will advise of their decision in due course. I expect that will not be very long, because of the pending trial starting February 23rd. I hope to have further expert reports in over the next few weeks.
August 27th, 2014
June 6th, 2014
INJUNCTION APPEAL
This will confirm that as a result of the gaps in the Allard injunction that does not allow for a change in "production site" addresses and imposes 150 g limit on possession, we have been exploring ways and means to try and fix these problems.
The following options have been or are being considered:
1. Try and get back in front of Manson J. to have him fill the gaps. This seems to be precluded by the Federal Court rules because a trial date has been set, and there is an interim appeal pending;
2. Start a new application on behalf of a patient with this particular problem. Unfortunately, given the Federal Crown position they will take advantage of the times set out in the rules and we won't be able to request a hearing date for at least 120 days from the commencement of the proceedings. Therefore, this solution is not practical;
3. Phelan J. in the other F.C.T.D. cases, groups them into 5 categories with the 1st two being covered by Allard, and the last 2 not fitting within Allard at all, leaving the 3rd group as those who fell between the cracks for one reason or another in Allard. I am trying to determine if any, in that 3rd group are production site change or 150 g limit situations so that we could make an application on behalf of one of them in writing before that judge expeditiously to try and solve the problem. I understand the crown is supposed to categorize the different plaintiffs into the 5 groups and I'm still trying to get information in that regard. This is taking longer than expected.
4. Deal with the matter on appeal as it is our primary ground in the cross-appeal. We have received the appeal books and the crown has 30 days, which are almost up, to file their written argument and we then have 30 days to respond and submit our cross-appeal. So we might get this heard in the fall if we can get an early date.
There is provision for us seeking leave to introduce new evidence with respect to the facts on the appeal. Consequently I am proposing that I obtain an affidavit from Jason Wilcox, as the coordinator of the Coalition from each of the persons who has sent us their contact information indicating that they have fallen through the cracks primarily as a result of the inability to change their production site but also in some cases because of the possession limit.
Consequently I would ask all those persons who have indicated to Jason Wilcox that they need to change their production site and can't do so because of the Allard injunction makes no provision for same to send Jason a one-page document that sets out the following:
their name, address, etc. and contact information;
their ATP and PPL or DG permit numbers and dates of expiry;
the details as to why they have to change their site or can no longer continue with the existing site and whether or not they have a new site to move it to where they can lawfully continue, i.e. in the correct zone, etc.;
If applicable, the details as to how the 150 g limit is problematic in their situation and any suggested solutions specific to their situation.
I will then plan to put an affidavit together from Jason attaching all of these documents as exhibits and will seek leave to have this evidence introduced on the appeal to show the problem in that regard.
Those of you who had your ATP expire before March 21, 2014, in my opinion, need to remedy your "possession" situation (as opposed to your "production" situation) by going back to your doctor or a doctor and obtaining from him or her a document or note of some kind that stands alone or is attached to your previous MMAR Physician Application portion that prescribes or authorizes you to possess cannabis pursuant to section 53 of the Narcotic Control regulations(see paragraphs [7] and[8] of the reasons for judgment of Manson J.). While there is no limit as to what you can possess on your person under that regulation, in my opinion, one should try and adhere to it, if at all possible. Those who need more than 150 g on their person when they are out and about might consider getting a similar document from their doctor to that effect as a possible interim way to cover off that problem as well. Please understand and make your doctor understand that you are NOT asking for a "medical document" pursuant to the MMPR, but a note under the NCR.
April 2nd, 2014
Those who have "possession" ATP expiry before March 21, 2014 should get an authorization from their doctor under reg 53 of the Narcotic Control regs to the same effect (dosage) to cover them if they still have valid Ppl/DG September 30, 2013. I think Health Canada is correct in their interpretation and we will need to consider trying to fix this on cross appeal;
March 24th, 2014
1. Do I currently(now until March 31st) hold a valid Authorization to Possess(ATP) or Personal Production License(PPL) or ATP and have a Designated Grower(DG)?; If the answer is 'yes' then you are grandfathered until further Order of the court the only change being the 150gm possession limit;
2. Did I hold a valid ATP/PPL or ATP/DG on September 30th, 2013?; If you had one then and didn't renew later you are still covered as above as long as you had valid documents on the key date;
3. Do I hold a valid ATP/PPL or ATP/DG issued after September 30th, 2013 whether a new one or amended one? If you managed to renew after that date you are covered.
It seems to me that this covers everyone except those who expired before September 30, 2013 and didn't renew at all. The key is the status of the license on September 30th or currently and you can ignore the expiry date and do not have to renew but possession is limited to 150grms.
Your PPL or DG plant count and storage numbers remain the same.
Reasons for Judgment [126]
In effect, the Applicants seek the regulatory scheme as it was under the MMAR and do not object to the provisions of the MMPR that relate to private growers. The way in which this can be accomplished in a manner least intrusive to the legislative sphere is to exempt those who currently hold a valid ATP, who held a valid DPL or PPL as of September 30, 2013, or hold a valid amended or new DPL or PPL that was issued after September 30, 2013, from the repeal of the MMAR and any provisions of the MMPR which are inconsistent with the relevant provisions of the MMAR, pending an expeditious trial and a decision of this case on its merits. Relief or Order 3. The Applicants who held, as of September 30, 2013, or were issued thereafter a valid Personal-use Production Licence pursuant to section 24 of the Marihuana Medical Access Regulations, or a Designated-person Production Licence pursuant to section 34 of the Marihuana Medical Access Regulations, are exempt from the repeal of the Marihuana Medical Access Regulations and any other operation of the Marihuana for Medical Purposes Regulations, which is inconsistent with the operation of the Marihuana Medical Access Regulations, to the extent that the Designated - person Production License or Personal-use Production License held by the Applicant shall remain valid until such time as a decision in this case is rendered at trial, and subject to the terms of paragraph 4 of this Order; 4. The terms of the exemption for an Applicant who held, as of September 30, 2013, or was issued thereafter a valid Personal-use Production License pursuant to section 24 of the Marihuana Medical Access Regulations or a Designated-person Production License pursuant to section 34 of the Marihuana Medical Access Regulations, shall be in accordance with the terms of their license, notwithstanding the expiry date stated on that license.
February 4th, 2014
NOTICE TO ALL MMAR LICENSE HOLDERS AS TO STATUS OF THE CONSTITUTIONAL CHALLENGE AND WHAT TO DO BETWEEN NOW AND MARCH 18TH, 2014 and BETWEEN THEN AND MARCH 31st, 2014 and THEREAFTER
I expect a decision from the Federal Court on the exemption/injunction application sometime between March 18th, when it will be heard and March 31st, 2014. Sorry but I cannot predict how long a Judge will take to decide the issue, especially when I do not even know who it is going to be, but even then it is always hard to say or predict.
It will be before March 31st, 2014 I can say that.
We are asking the court to compel Health Canada to process all Applications coming in, whether new or old, and any changes requested since September 30th,2013, and to exempt everyone who is 'medically approved' from the CDSA provisions pending trial where we will seek a permanent such exemption.
Everyone who is "medically approved" to use Cannabis has a right to reasonable access to it as medicine for their health. This right arises as a result of s.7 of the Charter.
The federal government, so long as it is exercising jurisdiction over cannabis using the criminal law power, must provide a viable exemption to the criminal law to 'medically approved patients'.
Legalization will substantially change this picture and open things up for the Provinces potentially. Vote for the Liberal Party of Canada's Justin Trudeau who is willing to "legalize". Remember it was his father Pierre and his then Justice Minister Jean Chretien who brought us the Charter without which we would have no argument. The NDP are still talking ³decriminalization² or want another study, and the Conservatives have no respect for the Canadian Constitution and want mandatory minimums and forfeiture. Vote against Harper whatever you do and get all your friends to do so and don't split the vote. If you are usually NDP, hold your nose this time and vote against Harper so we can finally get this thing done!!!
The MMAR despite its defects is/was a viable exemption as it enabled a safe continuous supply at reasonable cost to patients.
The MMPR is not, we say, a viable exemption because, as in the case of Terry Parker, it will cause those who cannot afford black market or licensed producer prices to have to choose between their liberty (being arrested and charged with production of marihuana after March 31st,2014) and their health( accessing the medicine that works for their health issue approved by their doctor and continuing after March 31st,2014).
This amounts to a violation of that patient's constitutional right, under s.7 of the Charter of Rights, to "liberty" and the "security of the person" and the right not to have those rights taken away or deprived except in accordance with "the principles of fundamental justice". That s.7 is engaged is clear from Parker and then last year was affirmed in Mernagh, again by the Ontario Court of Appeal, with leave to appeal to the Supreme Court of Canada having been refused.
In order to reasonably limit a s.7 Charter right the government bears the heavy burden of proving that the limit is, prescribed by law, and is reasonable and demonstrably justified in a free and democratic society under s.1 of the Charter. Here is where the fire, mold and public safety arguments come in to try and justify the changes. They will also come up at the injunction/exemption argument to try and oppose that application.
Any patient who continues to grow their own medicine because they cannot afford the black market, including dispensary/compassion club prices, nor licensed producer prices, and to control quality and continuous supply, and to avoid going back to prior debilitating drugs with massive side effects or simply because this works for your health better than anything else, should be prepared to do the following, if the court does not grant an exemption/injunction to you and you are visited by the police or other authorities:
1. Make sure you have, preferably the originals and certified copies of your "Authorization to Possess"(ATP) available to produce to the police if they attend, to show them that you are "medically approved". It might help to have a copy of that part of the application that was signed by the doctor setting out your "grams per day" and support and copies of at least a summary of your medical situation from your doctor or a copy of the last medical report that has a diagnosis and prognosis etc. WAIVE YOUR RIGHT TO REMAIN SILENT AND TELL THEM YOUR MEDICAL STORY THAT HAS MEDICAL SUPPORT UNDER THE MMAR. Out of an abundance of caution you may want to get something in writing from your doctor that authorizes/approves your use under Narcotic Control regulation 53 so you are Oauthorized¹ under that regulation to possess.
2. Remember the offence under the Controlled Drugs and Substances Act is to possess otherwise than as authorized or in accordance with the regulations so if they abolish the MMAR March 31st but you have a note under the NCR you are still legal to possess, in my opinion. Under the MMPR you have to register with an LP and it is the label of their product that determines legality of possession.
3. Be polite and co-operative, but assert that your constitutional rights are being violated by the failure, on the part of the government to provide a viable exemption from the criminal law available to you that includes one that is affordable at reasonable cost within the means of most patients or at least does not preclude patients from accessing at the best price they can and one in which that can exercise some control over what goes into the making of their medicine and its effective quality for them.
4. DO NOT PLEAD GUILTY to any offence. You are not committing one!! Your defense is that you are exercising your constitutional rights under s.7 of the Charter to the security of your person by making a decision of fundamental personal importance about your health to ensure a safe continuous supply of the medicine that works for your health because you cannot afford the only licensed suppliers and the only alternative would be to return to drugs that do not work at least as effectively and/or allow your health to be impaired.
5. Tell them your whole story and then be ready to back it up with documents etc. I think we will be surprised at how sympathetic most members of the public will be once they know the real stories and many police officers, Crown prosecutors and Judges are also sympathetic, in my experience.
6. The best thing that could happen between now and March 18th, 2014 is a barrage of heartbreaking stories all over the National, Provincial and local television and social media news. I have read the many impact statements sent to me and to the Coalition and would love to be able to make them public. Let me know if I can do so in your case if you sent me one. Others please contact your local, provincial and national media and tell them how this 'drug' has made a difference in your life and what the consequences will be to you if you cannot afford the new LP prices and cannot control the quality and quantity of your production and the effectiveness of the strains that have been working for you.
January 26th, 2014
We have delivered the Motion and supporting materials for the injunction/exemption to the government lawyers and hope to have a schedule agreed to leading up to the hearing date in place, hopefully next week.
It is not necessary to register to be covered by this lawsuit. All that is required is that you are a "medically approved" patient with a PPL or have a designated caregiver producing for you because you are unable to do so.
You do not have to register for the privacy class action lawsuit either as you are automatically included unless you opt out. You will be contacted in that regard by the court or lawyers involved.
Please consider pledging some portion or all of the damages that you will be awarded in the privacy action class action suit to help fund this constitutional challenge, which is currently being funded by donations and fundraising events.;
Archived 2013 Updates
December 25th, 2013
All medically approved patients ordinarily resident in Canada are affected and included and the government will be bound by any decision that the law is unconstitutional without the need to bring their own separate actions. If the court finds that the government is violating the Constitution it may suspend the declaration for a period of time to enable the Government to make the law constitutional with patients continuing to be exempt until that is done. If the law is held to be unconstitutional in relation to our chosen Plaintiffs then it is unconstitutional for all similarly situated;
December 10th, 2013
Statement of Claim filed;
November 29th, 2013
FEDERAL CLASS ACTION LAUNCHED CHALLENGING HEALTH CANADA'S CHANGES TO THE MEDICAL MARIHUANA LAWS ON BEHALF OF PATIENTS AND CAREGIVERS
Class Action Suit alleges that the changes to the Medical Marihuana laws taking away the right to personally produce or have a caregiver do so, prohibiting dwelling house and outdoor production and limiting possession to "dried marihuana" only and other restrictions violate the constitutional rights of patients.
VANCOUVER (November 29, 2013) - A proposed national class action suit has been filed in the Federal Court of Canada in Vancouver against the Federal government (Health Canada) seeking various declarations as to the unconstitutionality of the proposed changes to the medical marihuana laws amending the Narcotic Control Regulations, repealing the Medical Marihuana Access Regulations and implementing the Marihuana for Medical Purposes Regulations under the Controlled Drugs and Substances Act.
The representative proposed Class Action was commenced November 29th, 2013 by four representative Plaintiffs on behalf of all persons ordinarily resident in Canada who have been medically approved to use cannabis as medicine whether under the Narcotic Control Regulations, the Medical Marihuana Access Regulations or the Marihuana for Medical Purposes Regulations.
The action seeks constitutional declarations that all medically approved patients have the constitutional right to not only produce their medicine for themselves but if they are unable to do so, to have a caregiver do so for them, and to use Cannabis in any of its effective forms and not be limited to just "dried marihuana". Also that patients or caregivers can continue to produce in a 'dwelling house' and outdoors and should not be limited in other proposed respects such as limiting the maximum amount that a patient can possess to 150 grams. The suit alleges that the new Marihuana for Medical Purposes Regulations (MMPR) are unconstitutional to the extent that they omit the right to continue to personally produce or have a caregiver do so and unreasonably limit the s.7 Charter constitutional rights of medically approved patients in the Narcotic Control Regulations, as in the Medical Marihuana Access Regulations and the Marihuana for Medical Purposes Regulations by limiting possession, sale and provision to "dried marihuana" only, contrary to the decision of the British Columbia Supreme Court in R. v. Smith 2012 BCSC 544 (on appeal to the BCCA) as well as other aspects. Orders in the nature of interim and permanent exemption/injunctions will be sought to exempt individuals medically approved from the change in the law pending the hearing of this matter and thereafter or alternatively restraining and preserving the provisions of the MMAR until such time as the government makes appropriate amendments to ensure the full ambit and scope of the patient's constitutional right is protected without any unreasonable, inconsistent and unnecessary restrictions.
Health Canada as of April 2013 authorized the production of 188,189 kilograms of cannabis marihuana to be produced under the MMAR under the various licences during 2012. As of November 1st there were only three licenced producers approved to produce and supply patients with cannabis marihuana. The MMPR repeals the MMAR personal production and designated grower provisions effective March 31st, 2014, a mere 4 months from now. It is anticipated that these licenced producers and any others that come into existence between now and March 31st, 2014 will not be able to produce a sufficient quantity to ensure that all of the approved patients have a safe continuous access and supply as of March 31st, 2014.
According to Health Canada as of July 15th, 2013, there were 35,445 persons authorized to possess cannabis for medical purposes in Canada broken down into 24,185 holding personal production licences, 4,251 holding designated grower licences and 6,027 accessing Health Canada's supply through the government contractor Prairie Plant Systems. While 27,000 of the licences are issued to produce entirely indoors, 3,000 of them were issued to produce entirely outdoors and 2,670 to produce indoors in the winter and outdoors in the summer. Producing outdoors is a substantial cost saver in terms of electricity and some 60-70% of the permit holders are indicated to be on disability pensions. The Plaintiffs say they will not be able to afford the estimated price of the medicine from the licenced producers created under the Marihuana for Medical Purposes Regulations as the sole producers. Most of those with personal production licences produce in their dwelling house as they cannot afford to rent space elsewhere, and they save substantially on electricity costs by partial outdoor production.
Consequently the Class seeks to maintain its ability of each of its members to produce for themselves or have a caregiver to produce for them or, if they can afford it, to purchase their medicine from a licenced producer and that to force patients to access their medicine at a price they cannot afford from only licenced producers does not constitute a "viable constitutional exemption" that ensures a reasonable safe and continuous supply of medicine for the patients. The Class also seeks to ensure access to juicing and other extracts by patients across the country and to maintain their ability to grow in a 'dwelling house' as well as outdoors, and to not be otherwise unreasonably limited in terms of possession.
All persons who have been medically approved in Canada for the possession and use of cannabis whether under the Narcotic Control Regulations, the Marihuana Medical Access Regulations as a patient and producer or more recently under the Marihuana for Medical Purposes Regulations are asked to go to www.johnconroy.com and click on the "MMAR" button and register by the completion of a victim impact statement so that we can assess whether or not to introduce your case and evidence into the action or email reception@johnconroy.com to be added to the list of members of the Class wishing to participate in this Class Action.
October 7th, 2013
Conroy & Company is currently in the process of putting together a representative action to be launched in the Federal Court of Canada (Trial Division) on behalf of all medical marijuana patients approved under the MMAR who were producing their own medicine and those who have a specific caregiver who is authorized to produce and provide their medicine.
This litigation was undertaken at the behest of both individuals and a Coalition put together by Jason Wilcox, who sought to unite members of the community who were not in a financial position to retain private counsel individually.
Procedurally, our firm has undertaken a comprehensive review of the case law and sought the opinions of many leading experts in the field, while sifting through thousands of victim impact statements that were received through either the Coalition website or directly through JohnConroy.com. Being a representative action, it is integral to find 15 of the best candidates to most appropriately represent the issues.
We are now in the drafting phase of the pleadings. It is our intention to work carefully and collaboratively to ensure that all aspects of this litigation are properly articulated.
It is our intention to file these pleadings as soon as we are confident that all aspects have been fully considered. Our goal is to file these pleadings and then seek a form of injunction to maintain the status quo pending a decision of the court.
While we had originally hoped to have the pleadings filed by September 30th, 2013, this litigation is a massive, complex, and costly undertaking for any firm to take on.
While recognizing the vulnerability and financial limitations of the majority of the 35,000 MMAR stakeholders our action represents, the reality is that this needs to have adequate financial support to move forward. If every permit holder (ATP) with a personal production license (PPL) or using a limited form of designated grower caregiver (limited DG), kicked in $5 or $10 per person or those who can afford it, donate $5 or $10 per person per month, or make a commitment, or pledge to do so there should be more than enough to cover not just legal fees but all of the other expenses involved. We are in Abbotsford. The action will probably be brought in the Federal court trial division in Vancouver. Arrangements will have to be made for the out-of-town plaintiffs to either attend or give their evidence on discovery, and at trial via videoconferencing. Transcripts cost more than a dollar per page. The costs and expenses of mounting this type of a representative action are huge. We therefore ask whoever is able to support this worthwhile litigation in whatever capacity they can.
February 16th, 2013
B. The Constitutional Challenge Action FCTD File No. T- 2030 -13 -Pleadings -proceeding as a 'simplified action' pursuant to rules 295 - 299 of the Federal Court Rules, with exceptions regarding discovery and pretrial motions arising under Rules 295 and 298:
The Order of Justice Manson setting out the schedule and timelines for the action and other matters, including the trial date of February 23rd 2015 commencing at 9:30 AM in Vancouver, B.C. and continuing for 3 weeks until March 13, 2015 with written Memorandums of Fact and Law due within 7 days of completion of the trial. The Schedule and status of matters is set out below:
July 15, 2014 - the Parties list of documents due:
The Defendants answers to some of the questions and their objections to others; (Not posted due to implied undertaking of confidentiality unless and until entered at trial.)
The Defendants written questions of the individual Plaintiffs for discovery;
The Plaintiffs answers to some of the questions and their objections to others; (Not posted due to implied undertaking of confidentiality unless and until entered at trial.)
Note: Due to the detailed medical/personal information with respect to each Plaintiff their answers will not be posted on this Internet webpage.
September 12, 2014 Motions arising from Examinations for Discovery
The Notice of Motion seeking leave to introduce New Evidence on the Appeal;
The affidavit of Jason Wilcox in support of the motion sworn the 1st of August 2014 and exhibits "A" through "BBB";
The affidavit of Danielle Lukiv in support of motion;
The affidavit of Mike King in support of the motion sworn the 24th their July, 2014; (Not posted due to implied undertaking of confidentiality unless and until entered at trial.)
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