Thursday, May 7, 2015

Allard Continued: The Plaintiffs’ Rebuttal

Also available at Cannabis in

At this point, looking at the Charter infringement in Section 7 lost all power. The Crown had argued all day that since the MMPR allowed for reasonable access to dried cannabis (assuming one limits their dosage to the international standard of 1-3 grams per day), it was a matter of “plugging the same analysis” but with the burden of proof reversed. The objective and rational connections were clear: reasonable limits equal reasonable access. What the Crown likely failed in was proving the minimal impairment step. Since there was “extensive evidence of real risks associated with medical cannabis” the MMPR supply restriction minimally impaired Section 7 rights and therefore did not provoke section 1. “The salutary effects of the MMPR outweigh the deleterious effects of individuals not being able to grow.” In other words, we're taking your gardens for the public good.

            After a twenty-minute break, the plaintiffs’ attorney, Kirk Tousaw, was up to rebuke the Crown's closing argument. He had forty-five minutes. He began with pointing out that in Parker, the medicine wasn't the dried cannabis plant matter, it was the compounds that made it such an effective medication. He also clarified that the courts have routinely sided with the supply sources in the MMAR and have never enacted complete prohibition on medical patients who may happen to fall outside those regulations.

            Tousaw lambasted the Crown for wasting time criticizing the MMAR and promoting the MMPR. That was not the issue. The issue was the limitation of supply sources. Previous courts had ruled that the supply scheme where patients had someone grow for them or did it themselves was too restrictive and violated Section 7. Reducing the program to one supplier did not increase access. The plaintiffs were not attacking the MMPR as a regulatory scheme; the issue was the prohibition of cannabis under Controlled Drug and Substances Act. That was the issue because according to the rule of law, there are at least 40,000 (estimated to be in the millions by the 2020s) of Canadians who use cannabis for medical purposes. The exemption scheme for them as expressed by the MMPR, have effects that “run counter to the objective.” It didn't reduce risk since that risk never existed to begin with and the MMPR certainly did not “significantly” improve access. “It's one thing to say there's risk, it's another thing entirely to say the risks are real and substantive and warrant actions taken,” Tousaw told Justice Phelan.

            Tousaw also corrected the language the Crown's lawyer had been using throughout his closing statement. The old regime was not a “home cultivation” or “residential cultivation” scheme. It was a personal production scheme. Tousaw explained greenhouses, outfitted shops and barns where people grew cannabis. All of which are criminally prohibited under the MMPR. He said the Crown's Section 7 analysis of public goods belonged in Section 1.

            Tousaw cited Canada (AG) v. Bedford, the Supreme Court case that liberated sex workers from the tyranny of arbitrary laws. Bedford, like Allard, dealt with the principles of arbitrariness, overbreadth, and gross disproportionality. Were the laws surrounding sex work arbitrary? Were the laws so broad that they dealt with conduct bearing no relation to the supposed purposes? Were the laws' effect on life, liberty and security of the person so grossly disproportionate to their purposes that they could not be rationally supported? If the answer were “yes” to those questions, then under Section 7 the court would not consider the beneficial effects “for society.” It would balance the negative effects on the individual against the purpose of the law and disregard any social benefits that might flow from that law.

            That was the argument Tousaw was making. Like sex-workers, cannabis farmers were subject to an arbitrary law that did not establish a rational connection between its purpose and the impugned effect on the individual. The question of “public good” did not belong in the Section 7 analysis. Tousaw emphasized that the case of the plaintiffs was not “quantitative,” that is how many people were impacted. But “qualitative” and even the violation of one person was enough to provoke Charter infringements. “Look to the object,” said Tousaw, “look to the effects and if they are overbreadth, arbitrary, and disproportional for even one person in Canada, then the law violates Section 7 and has to be justified by Section 1.”

            The key to debunking the Crown's argument was assessing the “inherent risks” of cannabis cultivation. So, Tousaw said, let's look at the risks. The legality of cultivating incentivizes people to do things by the book. It's fair to infer that the elimination of the MMAR will drive patients back underground where the incentives are to take larger risks. Furthermore, there was no actual evidence of enhanced risk. No statistics or any examples of someone being harmed by cannabis or cannabis cultivation. Same with mold. “You can get mold on anything,” said Tousaw, naming off common fruits and vegetables that are susceptible to mold. “You'd think in 14 years, where the Minister can strip licenses... you'd think there would be some statistics collected.” But Health Canada had nothing but complaints of smell. Not a single case of “diversion” into the black market. Witness Remo Colasanti had admitted to “sharing” his medication, but sharing is not the same as diversion. Tousaw used the example of sharing Tylenol with another lawyer to illustrate how irrational equating black market trafficking with passing a joint really was.

            “Again,” said Tousaw, “no evidence.”

            Tousaw said it was “stark and clear” that removing supply options didn't improve access. It was the 'if it ain't broken, don't fix it' idiom. Patients already had reasonable access under the old regime and were self-sustainable. The Crown accused the plaintiffs of not “trusting” the LPs and therefore had accessibility and could afford LP prices; they just chose not to use the system out of personal preference. “That's not evidence,” replied Tousaw. The Crown didn't cross-examine Mr. Allard on his trust issues with LPs, it was not enough to build the accessibility/affordability argument on. And furthermore, Tousaw continued, the Crown “has to imply” that Canadian doctors are corrupt and/or inefficient. Doctors routinely approve more than the globally recommended 5 grams per day. “The argument that the patients need less cannabis than they are prescribed is not a proper argument,” said Tousaw. He added that attacking the plaintiffs credibility now in the closing argument – that is “without putting it to them” during the cross-examination – violated Brown and Dunn.

            Nevertheless, even if a majority of cannabis users are able to afford LPs without breaking the bank, even if they are able to limit their medication to no more than 5 grams per day – the constitutional effect on one person is enough to show a Charter breach. Justice Phelan asked why there was a discrepancy between the “medical norm” of 5 grams per day and the Canadian average of 18-grams per day. Tousaw explained that oral consumption often requires a larger dose and even Health Canada's documents admit to that. As well, juicing is a method that requires large dosages but with the benefit of no psychoactive effects. So someone could juice ten grams and get all the necessary medical compounds without feeling like you just inhaled ten grams of dried plant matter. Tousaw echoed the example of the plaintiff Mr. Davey. He has a 14-gram cookie before bed because without it, he wakes up in the middle of the night in excruciating pain. It was not reasonable to expect Mr. Davey to wake up every couple hours to smoke a joint.

            Cannabis also won't kill you. As Dr. Ferris, an expert for the plaintiffs, suggested: “dosage” is a complex question because typically doctors prescribe medication that will kill you in higher amounts. The whole point of dosage was to mitigate the risks of powerful medication. While cannabis is a powerful medicine, there is no lethal dosage. It's not like oxycodone, Tousaw reminded Justice Phelan. And unless the Crown was attacking the credibility of every doctor who prescribed cannabis (and Tousaw argued that according to their logic, they had to be doing this), the average 18-gram dosage was a result of doctors listening to their patients, trying out different amounts, and finding something that works.

            Onto the issue of affordability: the Crown had assumed that the plaintiffs and all medical cannabis patients only need 5-grams-a-day. But even with the LPs selling the low-end $5-a-gram, the costs were still too much to bear. For someone like Ms. Beemish, even reducing her dosage wouldn't put her into the affordability category. Her husband and former designated grower, Mr. Hebert, got a discount on cannabis from the black market and still could barely afford it. These two fell outside the injunction and thus lost their garden. Once that happened, Ms. Beemish's quality of life dropped drastically.

            Mr. Allard looked like he would be fine. The Crown had criticized how much he spent on building gardens throughout the years. They pointed out how he was debt free, mortgage free and on a public pension. They didn't mention how his income will drop when he reached 65. Tousaw brought this up in his rebuttal, and he pointed out all the absurdities in the Crown's argument. If Mr. Allard reduced his dosage to six grams a day, even with $1000 discretionary spending a month, over the course of 5 years he'll give $60,000 to an LP for something he is literally growing for .38-a-gram right now. So when his income drops and that discretionary spending (which was supposed to be his life savings) was gone? “Take out a mortgage” was the Crown's answer. Tousaw was disgusted. “Surely that's not affordability,” he told Justice Phelan, “that's not what affordability means.” The government's answer to Mr. Allard was basically: spend your life savings on cannabis. That, Tousaw argued, was not an improvement of Mr. Allard's access to cannabis for medical purposes. Tousaw explained the amortization of the costs as gardens start producing medical cannabis. Justice Phelan agreed. It's surprising the Crown left this basic notion untouched. Instead they had focused on calculating “opportunity costs.” In any event, under the MMAR the plaintiffs were self-sufficient and had access. Under the MMPR, their access would not improve.

            Tousaw continued developing this idea that the plaintiffs could really afford LPs. He roasted the comparison the Crown made to Mr. Davey and a college student. A college student wants a car, but being a poor college student, he must reduce his income. Like eating out less, not buying a new t-shirt, etc. “But we are talking about critically ill people going without food or shelter,” said Tousaw. The comparison was not valid.

            The MMPR supply restriction was arbitrary because it not further its goals stated in the objective. Reasonable access was reduced and in most cases actually eliminated. There was no direct connection between eliminating personal cultivation and the health and safety of both the individual and the public. Furthermore, the question of “public good” did not even enter the equation. “Look to the object,” reiterated Tousaw, “look to the effects and if they are overbreadth, arbitrary, and disproportional for even one person in Canada, then the law violates section 7 and has to be justified by Section 1.”

            Pending some affidavits and paperwork, Justice Phelan said his decision regarding Justice Manson's injunction would likely be made in early June.

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