Court File and Parties
COURT FILE NO.: CV-17-6796 DATE: 2018/10/26 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
REVEREND BROTHER MICHEL D. ETHIER Acting in person Plaintiff
- and -
ATTORNEY GENERAL OF CANADA Jennifer Bond, for the Defendant Defendant
HEARD: October 1, 2018
ELLIES J.
Reasons for Decision
Overview
[1] Michel Ethier has sued the Attorney General of Canada for infringing his right to freedom of religion in contravention of s. 2(a) the Canadian Charter of Rights and Freedoms. In his statement of claim, he asserts that he is a minister with the Assembly of the Church of the Universe, a religious group for whom cannabis is a sacrament. He alleges that he has had a number of "confrontations with the Administration of Justice" in the past relating to cannabis, some of which have resulted in criminal convictions. He seeks to put an end to those confrontations through his lawsuit.
[2] The plaintiff moves for an interim injunction directing the defendant not to prosecute him for violations of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) or the Cannabis Act, S.C. 2018, c. 16 (the "CA") with respect to cannabis pending the outcome of the trial of his action.
[3] For the following reasons, the plaintiff's motion is dismissed. He has failed to establish that there is any longer a serious issue to be tried since the passage of the CA, that he will suffer irreparable harm if the injunction is not granted, and that the balance of convenience favours granting the injunction.
Background
[4] The plaintiff commenced his action against the defendant in July 2017. In March 2018, the defendant brought a motion seeking to strike out all or at least portions of the statement of claim as disclosing no reasonable cause of action. For reasons released on May 9, 2018 I granted the motion in part (see 2018 ONSC 2215). Although I struck out a number of the plaintiff's claims without leave to amend, I left intact his claim for a constitutional exemption under s. 24(1) of the Canadian Charter of Rights and Freedoms and granted leave to amend that portion of his claim based on the allegation that his rights under s. 2(a) of the Charter were being infringed.
[5] The plaintiff has now served and filed an amended statement of claim. Whereas the original statement of claim referred only to the CDSA, the amended claim now also refers to the newly enacted CA. In the statement of claim, the plaintiff seeks an interim and permanent injunction preventing the defendant from prosecuting him under either statute.
Issues
[6] The plaintiff's motion raises a single issue:
(1) Should an interlocutory injunction be issued prohibiting the defendant from prosecuting the plaintiff under the CDSA and the CA?
[7] However, the defendant has raised two preliminary issues:
(2) Is a constitutional exemption available as a permanent remedy? If it is not, then the defendant submits that it cannot be available as an interlocutory remedy.
(3) Can an injunction be issued against the Crown?
[8] I propose to deal with the issues in the opposite order to that in which they are listed above.
Analysis
Can an Injunction Be Issued Against the Crown?
[9] The defendant submits that an injunction is generally not available against the Crown except in certain limited circumstances, none of which apply to the case at bar. While I agree with the first part of this submission, I disagree with the last.
[10] It is correct to say that the Crown is protected from injunctive relief both at common law and pursuant to statute: see Sharpe, Robert J., Injunctions and Specific Performance, loose-leaf (2017-Rel. 26), 4th ed. (Aurora, Ont.: Canada Law Book, 2017), at para. 3.1040; Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 22(1).
[11] However, as counsel for the defendant concedes, there are exceptions to this Crown immunity. One of them relates to the very type of relief sought in this case: a claim for relief under the Charter. This was the situation in Kadhr v. Canada, 2005 FC 1076, [2006] 2 F.C.R. 505, in which the applicant was a Canadian citizen who was detained by the United States government in a facility in Guantanamo Bay. He commenced an action against the Crown in which he alleged that Canadian authorities who had been questioning him were violating his Charter rights. He sought an interlocutory injunction to restrain Crown agents from further interrogating him pending the trial. The court granted the plaintiff's request. After reviewing cases in which courts had granted interlocutory injunctions where the constitutional validity of legislation was challenged, the motion judge, von Finckenstein J., wrote: "I fail to see why an injunction would lie when the constitutional validity of a statute is challenged, but not when the constitutionality of conduct under a valid statute is challenged" (para. 20). See also R. v. Lee, 82 O.R. (3d) 142 (S.C.), at para. 22.
[12] The defendant argues that the decision in Kadhr is distinguishable in that the court in Kadhr restrained acts that were undertaken in an unconstitutional way, whereas the plaintiff in this case seeks to restrain constitutionally compliant acts that have the incidental effect of violating the plaintiff's Charter rights. I believe that this is a distinction without a difference.
[13] In Kadhr, as in this case, the plaintiff sought relief from constitutionally challenged conduct under constitutionally unchallenged legislation. In Kadhr, as in the case at bar, the plaintiff alleged that the acts complained of violated his Charter rights. It matters not whether the violation is a result of Charter-compliant conduct under a constitutionally invalid statute or from Charter-infringing conduct under a constitutionally valid statute. In either case, there is a violation of the plaintiff’s Charter rights. To hold otherwise is to permit the violation of a person's Charter rights as long as the violation results from Charter-compliant enforcement of a Charter-infringing statute.
[14] For these reasons, I conclude that the relief requested by the plaintiff in this motion is available against the Crown on both an interlocutory and a permanent basis.
Is a Constitutional Exemption Available to the Plaintiff as a Permanent Remedy?
[15] Counsel for the defendant submits that it is no longer possible to obtain a stand-alone constitutional exemption under s. 24(1) of the Charter following the decision of the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. I am not able to accept this submission. In my view, while the decision in Ferguson certainly sounds a cautionary note on the use of constitutional exemptions to cure the unconstitutional effect of legislation, it did not rule out the use of such a remedy in cases other than those in which minimum mandatory penalties are challenged under the Charter.
[16] The accused in Ferguson was a police officer who was convicted of using a firearm while committing manslaughter after a detainee was shot and killed during a struggle in a holding cell. He argued that the four year minimum penalty required by s. 236(a) of the Criminal Code violated his right under s. 12 of the Charter to be free from cruel and unusual punishment in the circumstances of his case. Like the plaintiff in the case before me, rather than seeking to strike the impugned section under s. 52 of the Constitution Act, 1982, the accused in Ferguson sought a constitutional exemption under s. 24(1) of the Charter. The Supreme Court refused to grant it.
[17] After first finding that the minimum mandatory penalty did not contravene the accused's rights under s. 12 of the Charter, the court went on to consider the use of constitutional exemptions as a remedy under s. 24(1). Writing for the court, McLachlan C.J. highlighted the distinction between the remedial provisions of ss. 24(1) of the Charter and 52 of the Constitution Act, 1982. She wrote (at paras. 59-61):
[59] When a law produces an unconstitutional effect, the usual remedy lies under s. 52(1), which provides that the law is of no force or effect to the extent that it is inconsistent with the Charter. A law may be inconsistent with the Charter either because of its purpose or its effect… Section 52 does not create a personal remedy.
[60] Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under the authority of legal regimes which are accepted as fully constitutional...
[61] It thus becomes apparent that ss. 52(1) and 24(1) serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1), by contrast, provides a remedy for government acts that violate Charter rights. It provides a personal remedy against unconstitutional government action and so, unlike s. 52(1), can be invoked only by a party alleging a violation of that party's own constitutional rights… [Emphasis in original. Citations omitted.]
[18] After setting out the policy reasons weighing against granting constitutional exemptions in general, McLachlin C.J. held (at para. 74):
[74] I conclude that constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a minimum sentence. If a law providing for a mandatory minimum sentence is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and effect under s. 52 of the Constitution Act, 1982. [Emphasis added.]
[19] As this paragraph clearly demonstrates, the decision in Ferguson dealt specifically, and only, with the availability of constitutional exemptions in cases in which the challenge is to a minimum mandatory penalty under s. 12 of the Charter. It did not deal with, nor purport to deal with, a challenge to legislation under s. 2(a) of the Charter.
[20] On the other hand, the Supreme Court of Canada did deal with a challenge under s. 2(a) in the earlier case of R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As the name of the case suggests, the accused in Big M Drug Mart was a corporation. The corporation was charged with unlawfully carrying on business contrary to the Lord's Day Act, R.S.C. 1970, c. L-13. It challenged the legislation under both s. 24(1) of the Charter and s. 52 of the Constitution Act, 1982, asserting that it infringed s. 2(a) of the Charter. One of the issues raised in the case was whether a corporation could obtain relief under s. 24(1). The court held that recourse to s. 24(1) was not necessary because relief under s. 52 was available to any accused, corporate or individual, who wishes to argue that the law under which the charge was laid is constitutionally invalid (p. 313). Writing for the court, Dickson J. (as he then was) wrote (at p. 315):
As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself unconstitutional, it is quite another to claim a "constitutional exemption” from otherwise valid legislation which offends one's religious tenets.
[21] As I read this passage, the Supreme Court left open the possibility that an individual might seek a constitutional exemption from legislation that infringes his freedom of religion. The court in Ferguson did not foreclose that possibility. Ferguson held only that a constitutional exemption is not available as a remedy to a minimum mandatory penalty challenged under s. 12 of the Charter. In my opinion, absent a clear indication that the decision in Ferguson applies outside of the context of minimum mandatory penalties, it should be restricted to that context. The ratio of a case that restricts the availability of a remedy should not be extended beyond the factual context in which it was decided, unless it is clear from the case or from subsequent cases that it was intended to apply outside of that context. That is certainly not clear from the decision in Ferguson, nor has counsel for the defendant cited any cases subsequent to Ferguson in which it has been held that constitutional exemptions are not available to remedy the infringement of Charter rights other than those at issue in Ferguson.
[22] I conclude, therefore, without deciding the issue at this point, that a constitutional exemption may be available as a remedy at trial.
Should an Interlocutory Injunction be Issued?
[23] With the preliminary issues out of the way, I turn to the issue raised by the plaintiff: should he be granted a temporary exemption from prosecution under the CDSA and the CA? I have concluded that he should not.
[24] In RJR-MacDonald Inc. v. Canada, [1994] 1 S.C.R. 311, the Supreme Court held that the same test applied by the court in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 to determine whether a stay of proceedings should be ordered pending the outcome of a Charter challenge to governing legislation should also be used to determine whether to order a stay of the execution and enforcement of the legislation itself. That now-familiar test requires the court to answer three questions:
(1) Is there is a serious issue to be tried? (2) Will the plaintiff suffer irreparable harm if the injunction is not issued? and (3) Does the balance of convenience favour issuing the injunction?
[25] All three questions must be answered in favour of the plaintiff before an injunction will be ordered.
Is There a Serious Issue to Be Tried?
[26] The first question relates to the merits of the plaintiff's claim. The threshold at this stage is a low one: RJR-MacDonald, at p. 337. In Metropolitan Stores, the Supreme Court held that the threshold will be met as long as the plaintiff's claim is not frivolous or vexatious (p. 128).
[27] In my decision on the motion to strike, I held that it was not obvious to me that the plaintiff's claim relating to the infringement of his rights under s. 2(a) could not succeed. I wrote (at para. 33):
To be arrested and prosecuted for possessing a sacrament of one's faith could constitute interference with one's freedom of religion, in my view.
[28] However, that was before the passage of the CA. Now, as a result of the passage of that legislation, there is good reason to doubt the merits of the plaintiff's claim.
[29] Before the passage of the CA, it was an offence under the CDSA for the plaintiff to possess cannabis without a medical exemption; something he does not have. This is no longer the case. Under ss. 8(1) and 12(4) of the CA, it is lawful for a person 18 years of age or over to possess up to 30 grams of dried cannabis in a public place and for an individual to possess up to four cannabis plants (that are not flowering or budding) in dwelling-house. Under s. 9(1), it is now also lawful to give or share (included in the definition of “distribute” under the Act) cannabis of up to 30 grams with people over the age of 17.
[30] While the CA does impose certain restrictions on the production and distribution of cannabis in Canada, it does not prohibit possession or cultivation of the plant. It is no longer illegal for the plaintiff to possess the sacrament of his religion in a quantity that will allow him to practice his faith.
[31] In his oral submissions, the plaintiff submitted that he should be free to grow his cannabis plants beside his tomato plants without fear of losing his freedom. He can do that now. He indicated that, if he could, he would consume up to 16 grams of cannabis per day. He can do that now, too, providing that he does not use "illicit" cannabis, as defined in the CA.
[32] The onus in this motion is on the plaintiff. While I am prepared to make a very generous allowance for the fact that he is not a lawyer and is not represented by one, I cannot conclude on the evidence before me that there is any longer a serious issue to be tried now that the CA has passed into law.
Will the Plaintiff Suffer Irreparable Harm If the Injunction is Not Granted?
[33] Given my conclusion on the first issue, I do not need to consider either the second or the third ones. However, I will do so in the event that I am wrong on any one issue and to demonstrate to the plaintiff that I have given his request the fullest consideration.
[34] Writing for the court in RJR-MacDonald, Sopinka and Cory JJ. explained the second part of the test laid down in Metropolitan Stores (at p. 341):
At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.
"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
[35] With respect to the assessment of irreparable harm in Charter cases, at p. 341, they wrote:
The assessment of irreparable harm in interlocutory applications involving Charter rights is a task which will often be more difficult than a comparable assessment in a private law application. One reason for this is that the notion of irreparable harm is closely tied to the remedy of damages, but damages are not the primary remedy in Charter cases.
This Court has on several occasions accepted the principle that damages may be awarded for a breach of Charter rights. However, no body of jurisprudence has yet developed in respect of the principles which might govern the award of damages under s. 24(1) of the Charter. In light of the uncertain state of the law regarding the award of damages for a Charter breach, it will in most cases be impossible for a judge on an interlocutory application to determine whether adequate compensation could ever be obtained at trial. Therefore, until the law in this area has developed further, it is appropriate to assume that the financial damage which will be suffered by an applicant following a refusal of relief, even though capable of quantification, constitutes irreparable harm. [Citations omitted.]
[36] Subsequent to the decision in RJR-MacDonald, the Supreme Court did develop the jurisprudence with respect to awarding damages under s. 24(1): Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. However, in his amended statement of claim, the plaintiff has removed all of the claims for damages that were contained in the original statement of claim.
[37] The plaintiff's motion materials do not contain any evidence of harm being suffered by him. In his oral submissions, however, the plaintiff referred to what might be considered five potentially harmful effects upon him of the law as it now stands after passage of the CA. I will list them as I discuss each one.
Criminal Record
[38] The plaintiff submits that the CA has created a number of new offences. He argues that, without an interlocutory injunction prohibiting the Crown from prosecuting him for possession of cannabis, he is susceptible to being convicted and having a criminal record as a result of such possession. I have two difficulties with this argument.
[39] First, the plaintiff has not pointed to any specific offence under the CA with respect to which he is exposed by virtue of his religion. I have trouble seeing how he could be convicted of an offence under the CA for practicing his faith in the way he has described, namely by consuming up to 16 grams of cannabis per day. This amount is well below the maximum 30 grams allowed.
[40] In fact, even if the plaintiff possessed considerably more than the maximum allowed, it is still not clear that he would end up with a criminal record. The CA contains a scheme by virtue of which individuals found to violate the possession limits set out in the Act will be issued a ticket if the amount in question is 50 grams or less of dried cannabis or less than seven cannabis plants (see s. 51). By paying the fine set out in the ticket (set at $200 in s. 51(4)(a) for this type of offence), the person is deemed to have pleaded guilty, to be given an absolute discharge, and not to have been convicted of the offence (s. 52(a)).
[41] Second, even if the plaintiff is exposed somehow to criminal convictions for practicing his faith under the new legislative regime, he has still not shown how he would suffer irreparable harm. As part of a supplementary factum, the plaintiff filed a copy of his criminal record. That record stretches back to 1979. It includes offences related to the possession of controlled substances, to be sure. However, it also includes a number of convictions for offences unrelated to drugs, such as breaking and entering, armed robbery, and fraud. In light of the plaintiff's record for offences such as these, I fail to understand how further convictions could be the cause of irreparable harm. The plaintiff is already suffering the effects of having a criminal record for offences unrelated to cannabis possession.
Detention
[42] The plaintiff also submitted that, without an interlocutory injunction exempting him from prosecution, he will be subject to continued detention in the way that he has been in the past as a result of his notorious use of cannabis.
[43] It is hard to understand why the plaintiff would continue to be detained because of his well-known use of cannabis when possession of cannabis is no longer illegal.
[44] More importantly, perhaps, an interlocutory injunction precluding the Crown from prosecuting the plaintiff for possessing cannabis will do nothing to limit the powers of the police to detain the plaintiff for investigative or enforcement purposes. The Crown and the police are not the same entity, as the plaintiff knows (see my decision on the motion to strike, at para. 26).
Search and Seizure
[45] The plaintiff also argues that the newly-passed CA contains expanded powers of search and seizure to which he will be subjected without an interlocutory injunction preventing prosecution.
[46] The CA does create a new role for "inspectors" and provides them with broad powers of search and seizure, some of which do not appear to require reasonable grounds to believe an offence is being committed (see s. 86). Under the Act, an inspector cannot enter a dwelling-house without the consent of an occupant or a warrant issued under the Act. However, the justice issuing the warrant is not required to believe that there is an offence being committed. Section 86(8)(b) requires only that the justice be satisfied that "entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance with the provisions of [the] Act or of the regulations".
[47] However, notwithstanding what appears to be expanded powers of search and seizure under the CA, I am not persuaded that the plaintiff will suffer irreparable harm of the type that he must demonstrate in this motion. The plaintiff's action is based on interference with his right to practice his religion. He has not shown how these expanded powers will interfere with that right, as opposed, for example, to his right to be free from unreasonable search and seizure.
[48] Further, as with the plaintiff's argument relating to detention, an interlocutory injunction against prosecution by the Crown will have no effect on investigation by inspectors or any other person authorized to enforce either the CA or the CDSA.
Possibility that Legally Grown and Sold Cannabis May Contain Harmful Substances
[49] The plaintiff submitted that the cannabis he can now obtain legally may contain pesticides and other contaminants. In support of his argument, he provided the court with a copy of a statement of claim in a class proceeding issued in the Supreme Court of Nova Scotia against a licenced commercial grower in which a similar allegation has been made.
[50] The statement of claim is not evidence. It is merely a set of allegations that have not been proven, to my knowledge. In the absence of any other evidence, I cannot accept the plaintiff's submission as anything other than pure speculation.
High Cost of Purchasing Licit Cannabis
[51] The plaintiff's final submission concerning the potential for irreparable harm suffers from the same lack of evidence as does his argument concerning the quality of legally available cannabis. He submits that the cost of purchasing licit cannabis may be higher than the cost of obtaining illicit cannabis. There is no evidence of that.
[52] Moreover, even if there was, I cannot see how the price difference would constitute irreparable harm. The extra cost would be easily quantifiable. It would not warrant an interlocutory injunction from prosecution for possessing illicit cannabis.
[53] For these reasons, I find that the plaintiff has failed to establish that he will suffer irreparable harm if the interlocutory injunction he seeks is not granted.
Does the Balance of Convenience Favour Issuing the Injunction?
[54] Even if the plaintiff had established that there was a serious issue to be tried and that he would suffer irreparable harm if the injunction was not granted, I would not issue the injunction. The balance of convenience is not in favour of it.
[55] The third test to be applied in an application for interlocutory relief was described by Beetz J. on behalf of the court in Metropolitan Stores as follows (at p. 129):
The third test, called the balance of convenience and which ought perhaps to be called more appropriately the balance of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.
[56] In Metropolitan Stores, the Supreme Court recognized a distinction between cases in which an injunction is sought to suspend the operation of a law for all purposes ("suspension" cases) and cases such as this one in which it is sought to exempt a litigant from the operation of legislation which, in the meanwhile, continues to operate with respect to others ("exemption" cases)(pp. 134-135). The court observed that, even in exemption cases, granting an interlocutory injunction may "frustrate the pursuit of the common good" (p. 135).
[57] Beetz J. noted that, in looking at the balance of convenience, the public interest takes on significant importance in cases involving the Charter. He wrote (at p. 135):
Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically-elected legislatures and are generally passed for the common good, for instance: the providing and financing of public services such as educational services, or of public utilities such as electricity, the protection of public health, natural resources and the environment, the repression of what is considered to be criminal activity, the controlling of economic activity such as the containing of inflation, the regulation of labour relations, etc. It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit of the common good.
While respect for the Constitution must remain paramount, the question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of convenience and is given the weight it deserves. As could be expected, the courts have generally answered this question in the negative. In looking at the balance of convenience, they have found it necessary to rise above the interests of private litigants up to the level of the public interest, and, in cases involving interlocutory injunctions directed at statutory authorities, they have correctly held it is erroneous to deal with these authorities as if they have any interest distinct from that of the public to which they owe the duties imposed upon them by statute.
[58] In RJR-MacDonald, the court recognized that the potential for harm to the public interest is usually less in exemption cases than in suspension cases. Nonetheless, it held with respect to this branch of the test (p. 346):
In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.
[59] Notwithstanding the fact that the plaintiff seeks an exemption in this case as opposed to a suspension, I believe that the balance of convenience weighs in favour of the Crown.
[60] Practically speaking, it is impossible to consider this third part of the test in isolation from the other two. The plaintiff is still able to possess and consume cannabis for the purpose of practicing his faith, or for any other purpose, frankly. An interlocutory injunction would have to be issued based on the other harms that the plaintiff alleges he will suffer, such as paying too much for his cannabis. If an interlocutory injunction could issue to prevent prosecuting someone under the CA and the CDSA based on those alleged harms, then such an injunction could issue to prevent prosecuting just about anyone for the possession of cannabis. To put it plainly, enforcement would be the exception and exemptions would be the rule.
[61] If that is true, it is not difficult to see how granting an interlocutory injunction against prosecuting the plaintiff could seriously harm the Crown. The CA is new legislation which has as its stated purpose the protection of public health and safety, in particular that of young persons. It seeks to achieve that purpose through the decriminalization of cannabis possession and use, while at the same time attempting to avoid the possible harm that might come from uncontrolled use by imposing what Parliament believes are reasonable restrictions with respect to its production and supply. In my view, the public interest would suffer significant harm if an individual in the plaintiff's circumstances was granted interlocutory immunity from prosecution under the CA and the newly amended CDSA. Granting such immunity would completely undermine the government's efforts to balance the rights of individuals such as the plaintiff with the need to protect the public from the harmful effects of uncontrolled cannabis use that the new law is designed to avoid.
Conclusion
[62] The plaintiff has failed to meet any of the requirements necessary to obtain an interlocutory injunction, let alone all three of them. The motion is therefore dismissed.
Costs
[63] Unless the parties can agree on costs, they shall be at liberty to make written submissions, limited to five typewritten pages, exclusive of attachments, with respect to that issue as follows:
(1) by the defendant, within 20 days of the release of these reasons; (2) by the plaintiff, in response, within 10 days of the receipt of the defendants’ written submissions; and (3) by the defendant, in reply, within 10 days after the receipt of the plaintiff’s written submissions.