Allard v. HMTQ: Expanding the Injunction (Part 1: John Conroy)

The plaintiff’s attorney John Conroy opened with new evidence. Some of these issues were in front of Justice Manson when he issued the injunction, but not the evidence Conroy was going to go over. It was 2pm and Justice Phelan had made a joke about his naptime being at 3. The crowd laughed; it was a different room but the faces were familiar. Conroy wanted a broader injunction from the one Justice Manson ordered. Based on what we know now from the cross-examination of Jocelyn Kula, the MMAR database of growers still existed. As did the number for the police to call—Health Canada still receives calls and emails from the public about the MMAR.

Conroy conceded that the database was only historic information, it couldn’t be manipulated but it could be added to by Health Canada. “It’s not a matter, we say, of having to resurrect the entire bureaucracy [of the MMAR].” Conroy only wanted the March 21st cutoff date by Justice Manson to be backdated to September 30th. Conroy said he had no idea Manson was going pick March 21st. He called it arbitrary.

Instead of backdating to September 30th, when one of major transitions from the MMAR to the MMPR took place, Conroy mentioned that Phelan could just force Health Canada to recognize Section 53 of the Narcotic Controlled Regulations as the authorization to possess. Someone with an expired license under the MMAR could just call Health Canada and let them know they have a valid Section 53 and Health Canada would make a note of it in the database. Conroy was asking Justice Phelan to recognize the doctor-patient relationship as a provisional requirement for a valid Section 53. Under the MMPR, one must use LP cannabis for proof that their medicine is legal.

When Justice Manson ordered the injunction he said that the balance of convenience outweighs the public interest. The balance lies with the applicants – the patients. Justice Manson confined the terms of injunction due to the administration issues with having to resurrect the whole MMAR program. These administrative costs, argued Conroy, were no longer relevant.

But Justice Phelan didn’t buy it. The whole point of finding a balance of convenience was to capture a good number of applicants without totally undoing the recent regulations. It was a balance of interest, where there are some winners and losers. Conroy was nitpicking.

But Conroy compared Justice Manson’s dates with a lottery. Some patients won and lost based on the arbitrary date of March 21st, 2014. It created an issue where there were patients with a license to grow but not to possess. What kind of sense did that make? Conroy argued that Justice Manson made his decision on the balance of convenience having first found that the balance favored the patients. The limits to the injunction were based on perceived problems with resurrecting the MMAR bureaucracy; a task that the government has overblown. Justice Manson did not have the evidence before him that Justice Phelan had; the evidence that showed how the database could be updated. Conroy emphasized how easily Health Canada could keep track of address changes and make notes on Section 53 updates.

Also not before Justice Manson was the issue of a 150-gram limit. The MMPR had the 150-gram limit, but the MMAR had a 30-day limit based on your dosage/number of plants. Conroy didn’t know that Justice Manson would impose a 150-gram limit on the injunction. Had Conroy known, he would have submitted papers to properly object. What if someone was shipping medicine across a provincial border? Must he or she be confined to 150 grams? What if someone’s production and storage site were in different locations? There are still many people in this situation. If one plant produces one pound, are they required to make three different trips to their storage site?

Conroy continued, the 150-gram limit was based on keeping people safe from robbery. There was not a shred of evidence of a patient being robbed of their medicine. Fourteen years of the MMAR and no problems. And besides, none of this impacted the MMPR. Justice Manson balanced sick patients with the economics of the new regime. If you took away the perceived administrative problems, there was no impact.

“We’re not asking to allow new applicants,” Conroy emphasized. They didn’t want to create new profiles in Health Canada’s MMAR database.

“No one left behind,” commented Justice Phelan. That’s what Conroy wanted. He just wanted all MMAR patients covered under the injunction.

Conroy said Justice Phelan could backdate the injunction to September 30th, or force Health Canada to recognize Section 53 as an authorization scheme for MMAR patients with expired licenses. And what would be the problem with that? There was no evidence of the MMAR injunction negatively impacting the MMPR. The economist for the Crown said it might slow them down, but it wouldn’t bankrupt them. And surely, Conroy pleaded, the quasi-legal dispensaries and compassion clubs have a greater impact on the LP market than individual patient gardens.

Conroy summed it up in three points, all predicated on Health Canada being easily able to update the MMAR database:

  1. Predate the injunction to September 30 or declare section 53 to be acceptable.
  2. Delete the 150-gram limit, it didn’t make any sense in the context of production when storage sites might be in a different location. And this tied into,
  3. Allowing address changes.

Those three things, argued Conroy, had a minimal impact on the Office of Medical Cannabis administration or the MMPR and LPs.

Justice Phelan didn’t sound like he was buying it. Conroy basically wanted him to accept the Kula cross-examination as fact before he made his overall ruling on Allard. The situation escalated into Conroy calling out Garis and Holmquist’s affidavit as opinion, which they were, but this wasn’t what Justice Phelan wanted to hear. When Conroy went over the claims made in their affidavit, Justice Phelan answered: “That was their evidence.”

Conroy was asking Justice Phelan to consider the evidence of the trial as a basis for broadening the injunction, but before Justice Phelan had reached a final verdict on the trial itself. It seemed unlikely that this strategy was going to work.