Cannabis in Canada
The Crown had three arguments. They began:
1) The Plaintiffs didn't raise any new issues. All the evidence was considered by Justice Manson, and in his clarification order Manson said he was fully aware of the consequences of Tanya Beemish losing her garden.
2) If the court found this as new evidence, the balance of convenience would shift to the Queen's favour. The injunction order was purposefully limited as to not impact the MMPR. The MMAR was repealed and now its administration was gone. Conroy's proposals to update the database would shift the balance back to the Crown's favour because it would cost money, time and resources.
3) Most importantly, said the Crown, the MMAR requirements on an address change required more than making a phone call to Health Canada and notifying them. John Conroy's suggestions would require Health Canada to overlook the strict requirements that existed under the old regime.
The Crown was stern about March 21st not being an arbitrary choice; it was the cutoff date because that was the date of the injunction. Backdating the injunction to September 30th would be unprecedented and act as a judicial intrusion into Parliament's legislative sphere.
Justice Manson established that there was no reputable harm with the 150-gram limit. The plaintiffs were adding the same type of evidence to “bolster” their case. “The 150 gram limit was certainly and squarely before Justice Manson,” the Crown said.
The MMAR regime was gone. The bureaucracy itself had been gutted. There was a new office, with all new staff: Three full-time employees who answer calls and emails from the public and police. They provided information based on both regimes, but that was all. “There are a different set of mandates under the MMPR,” said the Crown. Under the old MMAR the office had clerical staff, and it was a different skill-set than what is required of the office under the MMPR.
Justice Phelan commented that both regimes and offices seem pretty similar. But the Crown said at a “high level” how Health Canada administrates medical cannabis was totally different and that there is no way the old regime can be brought back. She went on to say how addresses were viewed “like a PDF” and couldn't be changed. How certain parts of the database were unsearchable, and thus inefficient for Conroy's intended uses.
“I appreciate it may be a problem,” said Justice Phelan, “but it's not some instrumental obstacle.” Phelan wasn't buying any of it and isn't wowed by the technology. If it required some “genius in Ottawa” to change the system, they would write the necessary code.
The Crown conceded, but noted the amount of time to do this would once against balance the weight in the Crown's favour. Updating the database wouldn't take into account the regulatory safeguards of the former MMAR. It was either to reinstate the entire regime, or it was a no-go. This was for safety, of course.
The Crown also attacked Conroy's Section 53 proposal, saying it must be read in context of the MMPR: “Those two work together.” It applied to practitioners and not to patients, and it kept practitioners from getting charged with trafficking. There was nothing about possession for individuals. The only way to do that was to buy cannabis from an LP. Section 53, according to the Crown, “can't be read in a vacuum.”
Conroy was back up. He found it hard to believe that the Government of Canada – with all of its resources – were unable to create an address change mechanism for a patient under the MMAR. The Crown's evidence in front of Justice Manson was that the MMAR was dead, but we know that's not entirely the case. There was the operational staff of the Office of Medical Cannabis that could update the existing database.
Conroy echoed Justice Phelan's sentiments that the bureaucratic and technological hurdles of updating the database were nonsensical: “A clerical skill-set is a clerical skill-set. It's called picking up the phone, making a note and making a record of it... It's not that complicated.”
The balance of convenience, said Conroy, should stay with the patients to avoid violating their constitutional rights. He reiterated that the 150-gram limit was a surprise by Justice Manson. There was no clear answer either way. The Court of Appeal didn't know about modifying the Health Canada database as they thought it was frozen, or “mothballed”. They also weren't told about the call-line police can use to find out if a garden is legal or not.
Conroy's rebuttal looked healthier than his original remarks. But the Crown had a tight argument regarding the simplicity of Conroy's “call in with an address update” vis-à-vis the old regulations that required rigorous paperwork. Nevertheless, the Crown's claim that it would be too hard for Health Canada to revert back, so hard that it would in fact tip the balance of convenience back to the government, was entirely bunk. For starters, the government collects it money forcibly from taxpayers. So there is no true objective cost-benefit analysis. There is no reason why Health Canada can't spend a couple hundred thousand updating databases and handing out old MMAR address-change paperwork.
Or better yet, why not let the market keep MMAR gardens safe and secure? After all, they called the MMPR a “free market”, so why not free MMAR gardens from the confines of the federal bureaucracy? According to the Crown, the MMAR regime doesn't exist for any practical purposes, but since the injunction there have been no problems – no reports of fire, mold, or theft, and no issues with public health and safety. Without the MMAR bureaucracy, medical cannabis gardens are getting along just fine. Since Justice Manson ruled the balance first weighed in the favour of the patients, the Crown may have inadvertently proven Health Canada's uselessness.