Update-February 13th, 2014
Click Here to view the Notice of Motion and Affidavits
Update-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 Oauthorizedı 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 you local, provincial and national media and tell them how this 'drug' has made a difference in you 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.
Click Here to download the Notice of Constitutional Question
Update-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 thehearing 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.
Please download, sign, and mail to:
Conroy & Company
2459 Pauline Street
Abbotsford, British Columbia
Canada V2S 3S1
Click Here to download the Pledge
Update-December 25th, 2013
All medically approved patient 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.
Click Here to download the Federal Class Action suit modified to a Constitutional Challenge
Update-December 10th, 2013
Click Here to download the MMAR Statement of Claim
Update-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. For more information please contact:
JOHN W. CONROY, Q.C.
Conroy & Company
2459 Pauline Street
Abbotsford, BC V2S 3S1
reception@johnconroy.com
Telephone: 604-852-5110
Facsimile: 604-859-3361
Update-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.
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