Majeres' Musings

Mood: Determined to get elected and start a judge inquisition
Listening to: The Bachelor with the O'Donnel or O'Connel dude

The internet and the world is watching Judge Johanne Trudel.  Yes Judge I know you google your name ...... take this.   


PART ONE  (Can 't make it all fit)

-TRA: Turmel Traduction/Translation

Dominic had his arguments ready for his release in French
but I was so angry about the the difficulties with the
courts failing to grasp the difference between
constitutional motion which needs service to the Feds and
non-constitutional ones which do now that I decided to put
those reasons down in French for Dominic to read into the
record first. Then go on without service to the Federal
Crown.

QUEBEC SUPERIOR COURT JUDGE JOHANNE TRUDEL

2005 24 Mar Thursday/Jeudi

TRUDEL J: Dans le dossier Dominic Gravel c. la reine, si le
procureur veut bien s'identifier, s'il vous plait.

-TRA: In the case of Dominic Gravel v. The Queen, would the
Crown please identify yourself?

DEPASSILLE: Genevieve Depassille pour le procureur-general
du Quebec.

-TRA: Genevieve Depassille for the Attorney-General for
Quebec.

TRUDEL J: Alors, M. Gravel, nous sommes ici aujourd'hui sur
la requete que vous avez presentee. Je sais que la cause a
ete reportee du debut de la semaine. Est-ce-qu'il y a
quelque chose que vous aimeriez declarer au tribunal.

-TRA: So, Mr. Gravel, we're here today for your motion. I
know the case was from remanded from earlier this week. Is
there something you'd like to say to the court.

GRAVEL: Oui, madame la juge. J'aurais peut-etre des
documents a rajouter dans le dossier. C'est mon argument
ecrit et je voudrais vous en donner une copie et peut-etre
pouvoir vous la lire.

-TRA: Yes, Madam Justice. I would perhaps have some
documents to add to the file. It's my written
representations and I would like to give you a copy and
perhaps be able to read it to you.

TRUDEL J: Est-ce que vous avez donne une copie de quelque
document que ce soit a Me. Depassille ou bien est-ce un
nouveau document.

-TRA: Have you already given a copy of whatever this
document is to Maitre Depassille or is it a new document?

GRAVEL: Non, j'aimerais peut-etre donner une copie a vous et
a Me. Depassille.

-TRA: No, I'd like to give a copy to you and to Me.
Depassille.

TRUDEL J: Mais, qu-est-ce que c'est ce document, au juste?

-TRA: But what is the document, exactly?

GRAVEL: C'est un argument ecrit.

-TRA: It's written representations.

TRUDEL J: Sur la requete telle qu'elle existe au dossier
presentement?

-TRA: About the motion that's on the docket now?

GRAVEL: C'est ca, oui. C'est pour explique le defectuosite
de la requete, la signification, ces choses-la.

-TRA: That's it, yes. It's to explain the defect in the
motion, the service, things like that.

DEPASSILLE: Est-ce-qu'on pourrait verifier au depart,
justement comme je recois le document, si la requete est en
anglais?

-TRA: Could we verify at the start, as I receive the
document, if the motion is in English?

JCT: Sounds like they wanted to make something of the fact
that he doesn't can't read English. Surprise.

GRAVEL: C'est en francais

-TRA: It's in French.

DEPASSILLE: Et est-ce qu'on pourrait verifier que c'est bien
M. Gravel qui l'a fait.

-TRA: And could we verify that Mr. Gravel wrote it?

TRUDEL J: C'est vous qui l'avez fait?

-TRA: It's you who did it?

GRAVEL: Oui, c'est moi.

-TRA: Yes, it's me.

TRUDEL J: C'est ce que vous nous dites en cour aujourd'hui?

-TRA: It's what you're going to say in court today?

GRAVEL: Oui, c'est signe par moi.

-TRA: Yes, it's signed by me.

TRUDEL J: Eh bien, est-ce-que vous voulez regarder le
document?

-TRA: So, do you wish to examine the document?

DEPASSILLE: Oui.

-TRA: Yes.

TRUDEL J: Vous voulez que je suspende 5 minutes?

-TRA: Would you like me to suspend for 5 minutes?

DEPASSILLE: Oui.

-TRA: Yes.

TRUDEL J: On va suspendre pour 5 minutes, monsieur, le temps
de permettre au procureur de regarder le document. Est-ce
que vous autorisez que je la regarde aussi?

-TRA: We'll suspend for 5 minutes, sir, the time to premit
the Crown to look at the document. Do you authorize that I
read it too?

DEPASSILLE: Oui.

-TRA: Yes.

TRUDEL J: Parfait, merci. Alors, vous pourrez me donner une
copie par le gardien pour moi-meme et une pour la procureur.

-TRA: Fine, thank you. So, you can give a copy via the guard
for me and one for the Crown Attorney.

GRAVEL: Est-ce qu'il y en a une pour le greffe aussi?

-TRA: Is there one needed for the clerk too?

TRUDEL J: Non, pas pour l'instant parce que la copie que
vous me donnez va rester au dossier eventuellement. Alors on
va suspendre pour 5 minutes.

-TRA: No, not for now because the copy you give me will stay
in the file eventually. So we'll suspend for 5 minutes.

GREFFIERE: La cour est suspendue.

CLERK: The court is suspended.

JCT: Okay, so these are the submitted written arguments I
had written up in French with Dominic on the phone:

ARGUMENTS ECRITS DE DOMINIC GRAVEL

WRITTEN REPRESENTATIONS OF DOMINIC GRAVEL

A) La requete est defectueuse

A) The motion is defective

Le 3 fevrier 2005, le juge Plouffe m'a explique que ma
premiere requete etait defectueuse sans un affidavit. Le 8
mars, le juge Bedard m'a explique qu'il manquait la
signification a la couronne federale dans ma deuxieme
requete corrigee. Le 22 mars, le juge Plouffe etait
mecontent que ma requete etait encore mal formee. Mais le
juge se servait de la requete defectueuse #1 et s'est rendu
compte trop tard que les corrections avaient ete faites dans
la requete corrigee #2 que la couronne et moi utilisions.

-TRA: On Feb 3 2005, Judge Plouffe explained to me that my
first motion was defective without an affidavit. On March 8,
Judge Bedard explained that my second corrected motion still
needed to be served on the Federal Crown. On March 22, Judge
Plouffe was unhappy that my motion was still defective. But
the judge was using the defective 1st Motion and realized
only too late that the corrections had been made in the
second motion that the Crown and I were using.

B) La signification est defectueuse

-TRA: B) The service was defective

La cour m'a repete que je dois signifier la couronne
federale. Le juge Plouffe m'a repete que mon defi
constitutionnel contre la section 7(1) de la Loi
Reglementant Certaines Drogues et Autres Substances etait
le meme defi constitutionnel que Raymond Turmel a perdu en
2001 et qui avait ete signifie aux deux procureurs. Mais ma
cause nest pas basee sur le defi constitutionnel perdant de
Raymond Turmel en 2001 avec signification aux deux
procureurs mais basee sur le defi constitutionnel gagnant de
Grant Krieger en 2002 avec signification aux deux
procureurs. Meme la couronne David Frankel a admit que la
plus haute cour de l'Alberta a abroge la s.7(1) en 2002.

-TRA: The court has repeated that I must serve the Federal
Crown. Judge Plouffe repeated that my constitutional
challenge to S.7 of the CDSA was the same constitutional
challenge that Ray Turmel lost in 2001 and which he had
served on both Crowns. But my case is not based on the
constitutional challenge lost by Ray Turmel in 2001 with
service to both Crowns but based on the winning
constitutional challenge by Krieger in 2002 with service to
both Crowns. Even Crown David Frankel admitted that the
S.7(1) had been struck down by the highest court in Alberta
in 2002.

Si la section 7(1) a deja ete abrogee par la Cour Krieger,
ma requete ne peut pas etre un defi constitutionnel contre
la meme s.7(1) qui est morte. Un defi constitutionnel doit
necessairement etre contre une loi vivante! Mais le
gouvernement a refuse d'effacer la s.7(1) du code criminel
du Canada et, donc, la cour et le barreau sont sous
l'impression que mon defi doit essayer encore une fois
d'abroger la loi comme la fait Krieger et avec double
signification. Mon defi est de declarer que la loi a ete
abrogee et aurait du etre effacee du Code Criminel du
Canada. Quel droit constitutionnel ai-je invoque dans mon
defi? Je ne suis pas malade et ne peut pas compter sur la
Charte comme Krieger ou Parker? Si Krieger a tue la s.7(1),
dois-je la viser encore parce que le gouvernement a refuse
de l'effacer du Code Criminel lorsque elle a ete abrogee?

-TRA: If S.7(1) has already been abrogated by the Krieger
Court, my motion cannot be a constitutional one against the
same S.7(1) that is dead. A constitutional challenge must
necessarily be against a live law. But the government has
refused to erase S.7(1) from the Criminal Code of Canada
and, therefore, the Bench and the Bar are under the
impression that my challenge must also attempt to abrogate
the law like Krieger did and with double service. My
challenge is to declare that the was abrogated and should
have been erased from the Criminal Code of Canada. What
constitutional right have I invoked in my challenge? I'm not
sick like Krieger or Parker? If Krieger killed S.7(1), do I
have to aim at it again just because the government has
refused to erase it from the Criminal Code once it was
repealed?

Cette requete n'est pas pour declarer la loi non-
constitutionnelle. Elle est pour la liberation parce que
Krieger a deja gagne la declaration d'invalidite. Le retour
de ma requete en cassation basee sur Krieger sera entendue
par la cour du Quebec aussitot que possible pour determiner
si la decision Krieger s'applique au Quebec. C'est ce retour
de requete que j'ai faillit faire assermenter et signifier
de ma prison la semaine passe. Ce n'est pas a ce tribunal de
decider si la decision Krieger s'applique au Quebec mais de
decider s'il y existe la probabilite que la decision Krieger
s'applique dans la requete pour cassation a la Cour du
Quebec. Si vous insister que c'est un defi constitutionnel
qui necessite double signification, pourriez-vous remettre
la cause et maider a resoudre les problemes dun prisonier
pour la signification de ma requete?

-TRA: This application is not to declare the law
unconstitutional. Since Krieger already won the declaration
of invalidity, it is only for release. The return of my
motion to quash based on Krieger will soon be heard in the
Court of Quebec as soon as possible to find out if the
Krieger decision applies in Quebec. It's the return of that
motion that I failed to have sworn and served from prison
last week. It's not up to this tribunal to determine if the
Krieger decision applies in Quebec but only to decide
whether there's the chance that the Krieger decision applies
in the motion to quash the charges below. If you insist that
this is a constitutional challenge that requires double
service, could you please adjourn the application and help
me resolve the problems of serving the motion by a prisoner?
Datee at Gatineau le 24 mars 2005.
Dominic Gravel

JCT: So, that's it. Either the judge admits it's not a
constitutional motion or it gets put off to effect the
further service that Legal Aid Roger Landry did not do.
There were sleazy doings during the 5 minute suspension.
There were only 6 people in the room once Dominic and the
judge had left. The Crown and the cop, Ray and me, the clerk
and the guard. The Crown asks the guard to throw us out
until the court reconvenes. Imagine had there been a full
court. So the guard orders us out. I put up resistance
pointing at Depassille as the problem. Then, when court is
called back to session, the cop told the guard not to let me
in with my briefcase. So the cop orders me to leave my
briefcase outside the courtroom. I asked why? Guard Labbe
said it was his discretion and I had to leave it outside if
I wanted to come back in. They must be worried when they get
that sleazy.

TRUDEL J: Veillez vous assoir. Me. Depassille, est-ce que
vous avez quelque chose a commenter sur le document.

-TRA: Please sit down. Me. Depassille, do you have anything
to say about the document?

DEPASSILLE: Bon, tous simplement, que oui, j'ai des
commentaires parce que c'est inexact. Monsieur interpret des
paroles de monsieur le juge Plouffe qui n'ont pas, que
monsieur n'a pas la meme comprehension que j'ai du document.
Mais, quoi qu'il en soit, si c'est l'argument ecrit sur sa
requete...

-TRA: Well, simply that yes, I've got some comments because
it's inexact. Mister interprets the words of Mr. Justice
Plouffe which do not have, mister doesn't have the same
comprehension as I do of the document. But, whatever, if
it's the written argument on his motion...

JCT: All we said was that Judge Plouffe threw
out the first motion for not having an affidavit and still
found the motion defective not knowing Depassille and
Dominic were using the second motion. She now argues she
remembers it differently! Anyway, that has nothing to do
with whether the motion will be heard on its merits or
whether the failure to double serve the Crowns knocks it
out.

TRUDEL J: On va permettre a monsieur de la presenter...

-TRA: We'll permit him to present...

JCT: Yeehaa. I guess she doesn't want him reading his
arguments on service before the court. He's in.

DEPASSILLE: Je ferai mes representations qui seront tres
courtes par la suite.

-TRA: I'll do my short representations after that.

TRUDEL J: Alors, on permet de monsieur de presenter ses
arguments? Tres bien.

-TRA: So, we let mister present his arguments? Okay.

DEPASSILLE: Juste pour bien se comprendre, c'est les
arguments sur une requete en revision de cautionnement.

-TRA: Just to make understand each other, these are the
arguments on the motion for revision of bail.

TRUDEL J: Effectivement, la requete qui est devant la cour
est "Notice of Application to Vary Bail conditions." Alors,
ce sont vos arguments sur cette requete-la? Alors, si vous
voulez vous lever et presenter vos arguments, ca me fait
plaisir de vous ecouter monsieur.

-TRA: Effectively, the motion before the court is "Notice of
Application to Vary Bail Conditions." So, they are your
arguments on this motion? So, if you want to stand up and
make your arguments, it's my pleasure to hear you out.

GRAVEL: Est-ce que je peux vous donner une copie

-TRA: Can I give you a copy...

TRUDEL J: C'est pas necessaire. La copie du juge restera
dans le dossier, monsieur. La, je vous ecoute.

-TRA: It's not necessary. The judge's copy will stay in the
file, sir. So, I'm listening to you.

GRAVEL: Je peux continuer?

-TRA: I can continue?

TRUDEL J: Oui. je vous ecoute. C'est votre temps pour
presenter votre argument sur votre requete.

-TRA: Yes, I'll hear you. It's time to present your argument
on your application.

JCT: JCT: Okay, it's official. It will be heard without service
to the Feds. I was right. Justices Bedard and Plouffe were
wrong and their error cost Dominic an extra month in jail.
Notice Regis Bouchard didn't report Dominic's first win.
With the service issue won by his written representations,
Dominic now does his Krieger presentation.

GRAVEL: Okay, bon. Madame le juge, j'aimerais bien vous
expliquer ma cause. Si vous pouvez aller a l'appendix 10b
dans la requete? Avec les petits carreaux.

-TRA: Okay, great. Madam Justice, if you'll go to Appendix
10b in the motion, with the small boxes.

JCT: Appendix 10 in Dominic's Record is the SCC Krieger
Order dismissing the Crown's application for leave to appeal
and Appendix 10b is the Note from their online Bulletin
explaining the facts of the Krieger case. Dominic put his
Krieger Ace in front of her face first.

TRUDEL J: Oui, je vous ecoute.

-TRA: Yes, I'm listening.

JCT: The judge had leafed through the case but didn't reach
it near the back. So she wasn't even looking at it with him,
a common courtesy afforded almost all lawyers. I was taken
aback. So too, it seemed, was Dominic when he realized she
hadn't made it to his second last Appendix. But he continued
on undeterred.

GRAVEL: Le 11 decembre 2000, la cour de premiere instance en
Alberta, madame la juge Acton a dit que la section 7 en ce
qui ca concerne la marijuana, est declaree non-consistante
avec la Charte, declaration suspendue pour une annee;
l'Intime Krieger est exempte de la section 7(1) et l'arret
des procedures de l'accusation. Le 04 decembre 2002, la Cour
d'appel de l'Alberta, siegee par les trois juges Wittman,
Costigan and LoVecchio ont rejete l'appel de la couronne
concernant la section 7.

-TRA: On December 11 2002, the trial court in Alberta,
Madam Justice Acton ruled that section 7, inasmuch as it
relates to cannabis marihuana, declared inconsistent with
the Charter, declaration suspended for one year, Respondent
granted an exemption from the application of S.7(1); charge
stayed. On December 4 2002, the Court of Appeal for Alberta
Justices Wittman, Costigan and LoVecchio dismissed the
Crown's appeal concerning Section 7.

Si vous voulez maintenant aller a l'appendix 5, dans le
Memorandeum du 20 mai 2003 de la couronne federale David
Frankel qui avoue a la cour supreme que: "[57 Telle qu'elle
l'est maintenant, la loi 7(1) a ete declaree de nul force ni
effet par la plus haute cour de l'Alberta." Donc, le
Ministere de la Justice savait que les sections 7(1) et par
implication 4(1) avaient ete abrogees. Cependant, on n'a pas
change le code criminal pour refleter ces abrogations.

-TRA: If you'll now move to Appendix 5, there, the May 20
2003 Memorandum of Federal Crown David Frankel who admits to
the Supreme Court that "As matters now stand, Section 7(1)
had been declared of no force and effect by the highest
court in Alberta." So, the Ministry of Justice knew that
sections 7(1) and by implication 4(1) had been repealed.
Nevertheless, they did not change the Criminal Code to
reflect those abrogations.

Maintenant si vous voulez retourner a l'appendix 10b. La
Cour supreme du Canada siegee par les juges McLachlin, Major
et Fish, "La requete par la couronne en autorisation d'appel
du jugement de la cour d'appel de l'Alberta est rejetee."

-TRA: Now, could you return to Appendix 10b. The Supreme
Court of Canada Justices McLachlin, Major and Fish: The
application for leave to appeal the judgment of the Alberta
Court of Appeal is rejected.

Madame la juge, ca a l'air que peut-etre la loi est morte.
Et, pour cette raison, que j'ai une requete en cassation a
la Cour du Quebec qui a ete signifie le 24 janvier dernier
que je veux retourner a la cour au plus vite. Je voulais
retourner la requete la semaine derniere mais j'ai eu des
problemes avec l'assermentation de mes documents a la
prison. J'ai eu des problemes avec M. Landry parcequ'il n'a
pas pu assermenter mes documents. Il voulait que je donne
mes documents a un autre detenu pour qu'un autre detenue
puisse lui donner ca a la cour. Ces choses-la. J'ai eu de la
difficulte mais je l'ai ici presentement. Mais je trouve que
c'est un abus et mes droits sont un petit peu brimes de ce
cote-la.

-TRA: Madam Judge, it looks like the law might be dead. And
for this reason, I have my motion to quash in the Court of
Quebec which was served last Jan 24 and which I want to
return as quickly as possible. I wanted to return the motion
lastweek but I have problems with swearing my documents in
prison. I had problems with Mr. Landry becaue he wasn't able
to swear my documents. He wanted me to give them to another
inmate who was going to court that day to be passed along to
him at the court. I had trouble with things like that. But
I've got it here now. But I think it's an abuse and my
rights have been a little ignored in that respect.

En cas que j'ai raison, s'il y a une chance que l'abrogation
de la prohibition de la culture de marijuana dans la section
7 par la plus haute cour en Alberta s'applique au Quebec
lorsque la decision est soutenue par la cour supreme du
Canada, me garder en prison en attendant un proces sous une
loi morte doit constituer un abus de procedures de la cour.
Et c'est a vous d'arreter cet abus.

-TRA: In case I'm right, if there's a chance that the
abrogation of the prohibition on the cultivation of
marijuana in section 7 by the highest court in Alberta
applies in Quebec when the decision is sustained by the
Supreme Court of Canada, to keep me in jail awaiting a trial
under a dead law would constitute an abuse of the process of
the court. And it's up to you to end this abuse.

Si vous voulez retourner a l'appendix 13, la cour d'appel du
Quebec a suggere en fevrier que les juges de premiere
instance devront etre plus sensibles a des suggestions de
sentences avec sursis pour ceux trouves coupables dans les
cas d'accusations de production de marijuana. Cela devrait
aussi s'appliquer pour accorder une caution avant meme
d'avoir ete trouve coupable.

-TRA: If you would return to Appendix 13, the Quebec Court
of Appeal suggested last February that trial judges should
be more sensitive to suggestions of sentences with of house
arrest for those found guilty in cases of marijuana
production. This should also apply to grant bail before even
being found guilty.

Pour ces raisons, sans avocat, je me fie au tribunal pour
determiner s'il y a une chance, seulement une chance, que
l'abrogation de la section 7 en Alberta s'applique au Quebec
et ainsi, peut-etre, me sauver de l'abus d'emprisonnement en
attendant un proces sous une loi morte. Pour toutes ces
raisons la, je vis un abus et c'est a vous, madame juge,
d'arreter cet abus aujourd'hui. Merci beaucoup.

-TRA: For these reasons, without a lawyer, I count the
tribunal to determine if there's a chance, even a chance,
that the abrogation of section 7 in Alberta applies in
Quebec and thus, perhaps, save me from the abuse of
imprisonment awaiting a trial under a dead law. For all
these reasons, I see an abuse and it's up to you, madame
judge, to stop this abuse today. Thank you very much.

TRUDEL J: Merci beaucoup monsieur pour votre representation.
Maitre Depassille, etes-vous prete a lui repondre.

-TRA: Thank you very much sir for your presentation. Me.
Depassille, are you ready to respond?

JCT: Remember how Le Droit framed the winning argument
against why the Krieger strike down of Section 7 did not
apply to Dominic in Quebec:
"Maitre Genevieve Depassille reminds is that as she sees it,
the Alberta case has no similarities with Dominic Gravel's
case other than the quantity of marijuana involved. The
Alberta case concerns an individual whose reasons for
consuming implied the notion of therapeutic value which,
according to the Crown, isn't the case with Gravel."

DEPASSILLE: Oui. Tous simplement, madame la juge, que les
criteres de l'article 520 en revision de cautionment n'ont
pas ete rencontres par le requerant.

-TRA: Yes, quite simply, madam judge, that the requirements
set out in Section 520 for revision of bail have not been
met by the Applicant.

JCT: Oh no, sounds like the requirements of another section
have not been met? Reading Section 520 to see where we could
have gone wrong.

"520(1) Review of order of justice

520. (1) Where a justice makes an order under subsection

515(2), (5),(6), (7), (8) or (12) or makes or vacates any
order under paragraph 523(2)(b), the accused may, at any
time before the trial of the charge, apply to a judge for a
review of the order made by the justice."

JCT: Okay, Justice Dagenais made an Order under S.515 for
detention so certainly this applies to Dominic Gravel.

"520(2) Notice to prosecutor

(2) An application under this section shall not, unless the
prosecutor otherwise consents, be heard by a judge unless
the accused has given to the prosecutor at least two clear
days notice in writing of the application."

JCT: That's what we did and it's been remanded by Judges
Bedard and Plouffe ever since. So Section 2 can offer no
problem over insufficient service.

"520(3) Accused to be present

(3) If the judge so orders or the prosecutor or the accused
or his counsel so requests, the accused shall be present at
the hearing of an application under this section and, where
the accused is in custody, the judge may order, in writing,
the person having the custody of the accused to bring him
before the court."

JCT: Dominic is present so there's nothing with Section 3.

"520(4) Adjournment of proceedings

(4) A judge may, before or at any time during the hearing of
an application under this section, on application by the
prosecutor or the accused, adjourn the proceedings, but if
the accused is in custody no adjournment shall be for more
than three clear days except with the consent of the
accused."

JCT: Whoops. Bedard adjourned it a couple of times for more
than 3 days without asking for Dominic's consent. Plouffe
didn't and got it back in 2 days. Nice to now know.
"520(5) Failure of accused to attend

(5) Where an accused, other than an accused who is in
custody,...

JCT: This can't apply to Dominic who is in custody.

"520(6) Execution

(6) A warrant issued under subsection (5) may be executed
anywhere in Canada..."

JCT: Looking for non-prisoners who don't show so this
doesn't apply to

"520(7) Evidence and powers of judge on review

(7) On the hearing of an application under this section, the
judge may consider

(a) the transcript, if any, of the proceedings heard by the
justice and by any judge who previously reviewed the order
made by the justice,

(b) the exhibits, if any, filed in the proceedings before
the justice, and

(c) such additional evidence or exhibits as may be tendered
by the accused or the prosecutor,"

JCT: Okay, the judge may consider the transcripts but did
not, may consider the exhibits, and may consider the
additional information about Krieger and Parker and the
Quebec Court of Appeal. So it's not something Dominic has to
to so this section presents no problem so far,

"and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application,
vacate the order previously made by the justice and make any
other order provided for in section 515 that he considers is
warranted."

JCT: But the Crown said that we had failed to comply with a
something in Section 520 and I don't see what possible
requirement the Crown can say we failed to meet:

DEPASSILLE: Oui. Tous simplement, madame la juge, que les
criteres de l'article 520 en revision de cautionment n'ont
pas ete rencontres par le requerant. Par consequent, je vous
demanderais de rejete a la face meme la requete de monsieur
Gravel.

-TRA: Yes, quite simply, madam judge, that the criteria in
Section 520 for revision of bail haven't been met by the
Applicant. Consequently, I would ask you to reject Mr.
Gravel's motion on the face of it.

JCT: Wow. Gravel didn't follow 520 right so throw it out. No
explanation of what was in particular was done wrong after
hinting he'd failed to meet them all in the plural.

TRUDEL J: Est-ce qu'il a quelque chose que voulez rajouter
en replique a ce que vient de dire la procureur.

-TRA: Do you have something to add in reply to whatever the
Crown just said.

GRAVEL: Je n'ai pas bien compris. Pouvez-vous repeter votre
question, s'il vous plait?

-TRA: I didn't understand. Could you repeat the question,
please?

TRUDEL J: Suite au propos de la procureur qui repondait a
votre argument, est-ce que vous souhaiter dire quelque chose
en replique?

JCT: Given whatever the Crown just said in response to your
argument, do you wish to say something in reply?

JCT: He's being asked to reply to "whatever" he missed.

GRAVEL: Oui. Je l'explique asser bien dans mon... C'est tout
ecrit la dans mes documents. Vous avez eu la chance de le
lire?

-TRA: Yes, I explain it pretty well in my... It's all
written down in my documents. Have you had the chance to
read them?

JCT: I'd have made a motion for Particulars. They can't just
say: you missed something in this section. You have to say
what section you missed in particular. So when they don't
give you the particulars of their ambiguous charge, you can
ask. Of course, I've dealt with this before. Imagine no one
having any idea what he did wrong. Le Droit had to make
something up. And the judge asking him to respond to
"whatever it is she said" was wrong without her having to
particularize what was wrong. Think about that. The judge
keeps asking Dominic to reply to the accusation that
"something from Section 520 is wrong" without finding out
what the Crown says it is that is wrong. Imagine! "What's
your answer to whatever the Crown accuses you of?" Sounds
Kafkaesque, doesn't it.

TRUDEL J: Oui, je l'ai lu. Alors ca, ca constitue la
replique, le document intitule "arguments ecrits de Dominic
Gravel" qui est signe par vous a Gatineau le 24 mars 2005 et
que j'ai lu tout a l'heure dans mon cabinet, constitue votre
replique aux propos de la procureur?

-TRA: Yes, I read it. So, that constitutes your reply, the
document titled "Written Representations of Dominic Gravel"
that was signed by you in Gatineau on March 24 2005 and that
I read earlier in my office, that constitutes your reply to
whatever the Crown said.

JCT: Of course the "Written Representations" about federal
service have nothing to do with "whatever the Crown said"
and can't be a response to "whatever." The response to
"whatever the Crown said" was right in his documents, no
matter what the Crown said. Dominic gave the right answer.
The Ace of Diamonds is in his case file and until he
understands why the 520 card trumps it, he can only keep
pointing out his winning card in the case file. So not only
does she urge him to find a response to "whatever the Crown
said" but now she presumes that his non-related earlier
representations are germane to it. Wow.

GRAVEL: C'est ca. C'est tout.

-TRA: That's it. That's all.

TRUDEL J: Tres bien. Alors, la requete est rejete.

-TRA: That's fine. So, the application is dismissed.

JCT: Now you know what it feels like to run into a stacked

deck.

There you have it.  A prohibitionist Judge that does not act as the self representatives advocate, and makes it as if no one is watching.
roger roeder

-TRA: On December 11 2002, the trial court in Alberta,
Madam Justice Acton ruled that section 7, inasmuch as it
relates to cannabis marihuana, declared inconsistent with
the Charter, declaration suspended for one year, Respondent
granted an exemption from the application of S.7(1); charge
stayed. On December 4 2002, the Court of Appeal for Alberta
Justices Wittman, Costigan and LoVecchio dismissed the
Crown's appeal concerning Section 7.

Si vous voulez maintenant aller a l'appendix 5, dans le
Memorandeum du 20 mai 2003 de la couronne federale David
Frankel qui avoue a la cour supreme que: "[57 Telle qu'elle
l'est maintenant, la loi 7(1) a ete declaree de nul force ni
effet par la plus haute cour de l'Alberta." Donc, le
Ministere de la Justice savait que les sections 7(1) et par
implication 4(1) avaient ete abrogees. Cependant, on n'a pas
change le code criminal pour refleter ces abrogations.

-TRA: If you'll now move to Appendix 5, there, the May 20
2003 Memorandum of Federal Crown David Frankel who admits to
the Supreme Court that "As matters now stand, Section 7(1)
had been declared of no force and effect by the highest
court in Alberta." So, the Ministry of Justice knew that
sections 7(1) and by implication 4(1) had been repealed.
Nevertheless, they did not change the Criminal Code to
reflect those abrogations.

Maintenant si vous voulez retourner a l'appendix 10b. La
Cour supreme du Canada siegee par les juges McLachlin, Major
et Fish, "La requete par la couronne en autorisation d'appel
du jugement de la cour d'appel de l'Alberta est rejetee."

-TRA: Now, could you return to Appendix 10b. The Supreme
Court of Canada Justices McLachlin, Major and Fish: The
application for leave to appeal the judgment of the Alberta
Court of Appeal is rejected.

Madame la juge, ca a l'air que peut-etre la loi est morte.
Et, pour cette raison, que j'ai une requete en cassation a
la Cour du Quebec qui a ete signifie le 24 janvier dernier
que je veux retourner a la cour au plus vite. Je voulais
retourner la requete la semaine derniere mais j'ai eu des
problemes avec l'assermentation de mes documents a la
prison. J'ai eu des problemes avec M. Landry parcequ'il n'a
pas pu assermenter mes documents. Il voulait que je donne
mes documents a un autre detenu pour qu'un autre detenue
puisse lui donner ca a la cour. Ces choses-la. J'ai eu de la
difficulte mais je l'ai ici presentement. Mais je trouve que
c'est un abus et mes droits sont un petit peu brimes de ce
cote-la.

-TRA: Madam Judge, it looks like the law might be dead. And
for this reason, I have my motion to quash in the Court of
Quebec which was served last Jan 24 and which I want to
return as quickly as possible. I wanted to return the motion
lastweek but I have problems with swearing my documents in
prison. I had problems with Mr. Landry becaue he wasn't able
to swear my documents. He wanted me to give them to another
inmate who was going to court that day to be passed along to
him at the court. I had trouble with things like that. But
I've got it here now. But I think it's an abuse and my
rights have been a little ignored in that respect.

En cas que j'ai raison, s'il y a une chance que l'abrogation
de la prohibition de la culture de marijuana dans la section
7 par la plus haute cour en Alberta s'applique au Quebec
lorsque la decision est soutenue par la cour supreme du
Canada, me garder en prison en attendant un proces sous une
loi morte doit constituer un abus de procedures de la cour.
Et c'est a vous d'arreter cet abus.

-TRA: In case I'm right, if there's a chance that the
abrogation of the prohibition on the cultivation of
marijuana in section 7 by the highest court in Alberta
applies in Quebec when the decision is sustained by the
Supreme Court of Canada, to keep me in jail awaiting a trial
under a dead law would constitute an abuse of the process of
the court. And it's up to you to end this abuse.

Si vous voulez retourner a l'appendix 13, la cour d'appel du
Quebec a suggere en fevrier que les juges de premiere
instance devront etre plus sensibles a des suggestions de
sentences avec sursis pour ceux trouves coupables dans les
cas d'accusations de production de marijuana. Cela devrait
aussi s'appliquer pour accorder une caution avant meme
d'avoir ete trouve coupable.

-TRA: If you would return to Appendix 13, the Quebec Court
of Appeal suggested last February that trial judges should
be more sensitive to suggestions of sentences with of house
arrest for those found guilty in cases of marijuana
production. This should also apply to grant bail before even
being found guilty.

Pour ces raisons, sans avocat, je me fie au tribunal pour
determiner s'il y a une chance, seulement une chance, que
l'abrogation de la section 7 en Alberta s'applique au Quebec
et ainsi, peut-etre, me sauver de l'abus d'emprisonnement en
attendant un proces sous une loi morte. Pour toutes ces
raisons la, je vis un abus et c'est a vous, madame juge,
d'arreter cet abus aujourd'hui. Merci beaucoup.

-TRA: For these reasons, without a lawyer, I count the
tribunal to determine if there's a chance, even a chance,
that the abrogation of section 7 in Alberta applies in
Quebec and thus, perhaps, save me from the abuse of
imprisonment awaiting a trial under a dead law. For all
these reasons, I see an abuse and it's up to you, madame
judge, to stop this abuse today. Thank you very much.

TRUDEL J: Merci beaucoup monsieur pour votre representation.
Maitre Depassille, etes-vous prete a lui repondre.

-TRA: Thank you very much sir for your presentation. Me.
Depassille, are you ready to respond?

JCT: Remember how Le Droit framed the winning argument
against why the Krieger strike down of Section 7 did not
apply to Dominic in Quebec:
"Maitre Genevieve Depassille reminds is that as she sees it,
the Alberta case has no similarities with Dominic Gravel's
case other than the quantity of marijuana involved. The
Alberta case concerns an individual whose reasons for
consuming implied the notion of therapeutic value which,
according to the Crown, isn't the case with Gravel."

DEPASSILLE: Oui. Tous simplement, madame la juge, que les
criteres de l'article 520 en revision de cautionment n'ont
pas ete rencontres par le requerant.

-TRA: Yes, quite simply, madam judge, that the requirements
set out in Section 520 for revision of bail have not been
met by the Applicant.

JCT: Oh no, sounds like the requirements of another section
have not been met? Reading Section 520 to see where we could
have gone wrong.

"520(1) Review of order of justice

520. (1) Where a justice makes an order under subsection

515(2), (5),(6), (7), (8) or (12) or makes or vacates any
order under paragraph 523(2)(b), the accused may, at any
time before the trial of the charge, apply to a judge for a
review of the order made by the justice."

JCT: Okay, Justice Dagenais made an Order under S.515 for
detention so certainly this applies to Dominic Gravel.

"520(2) Notice to prosecutor

(2) An application under this section shall not, unless the
prosecutor otherwise consents, be heard by a judge unless
the accused has given to the prosecutor at least two clear
days notice in writing of the application."

JCT: That's what we did and it's been remanded by Judges
Bedard and Plouffe ever since. So Section 2 can offer no
problem over insufficient service.

"520(3) Accused to be present

(3) If the judge so orders or the prosecutor or the accused
or his counsel so requests, the accused shall be present at
the hearing of an application under this section and, where
the accused is in custody, the judge may order, in writing,
the person having the custody of the accused to bring him
before the court."

JCT: Dominic is present so there's nothing with Section 3.

"520(4) Adjournment of proceedings

(4) A judge may, before or at any time during the hearing of
an application under this section, on application by the
prosecutor or the accused, adjourn the proceedings, but if
the accused is in custody no adjournment shall be for more
than three clear days except with the consent of the
accused."

JCT: Whoops. Bedard adjourned it a couple of times for more
than 3 days without asking for Dominic's consent. Plouffe
didn't and got it back in 2 days. Nice to now know.
"520(5) Failure of accused to attend

(5) Where an accused, other than an accused who is in
custody,...

JCT: This can't apply to Dominic who is in custody.

"520(6) Execution

(6) A warrant issued under subsection (5) may be executed
anywhere in Canada..."

JCT: Looking for non-prisoners who don't show so this
doesn't apply to

"520(7) Evidence and powers of judge on review

(7) On the hearing of an application under this section, the
judge may consider

(a) the transcript, if any, of the proceedings heard by the
justice and by any judge who previously reviewed the order
made by the justice,

(b) the exhibits, if any, filed in the proceedings before
the justice, and

(c) such additional evidence or exhibits as may be tendered
by the accused or the prosecutor,"

JCT: Okay, the judge may consider the transcripts but did
not, may consider the exhibits, and may consider the
additional information about Krieger and Parker and the
Quebec Court of Appeal. So it's not something Dominic has to
to so this section presents no problem so far,

"and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application,
vacate the order previously made by the justice and make any
other order provided for in section 515 that he considers is
warranted."

JCT: But the Crown said that we had failed to comply with a
something in Section 520 and I don't see what possible
requirement the Crown can say we failed to meet:

DEPASSILLE: Oui. Tous simplement, madame la juge, que les
criteres de l'article 520 en revision de cautionment n'ont
pas ete rencontres par le requerant. Par consequent, je vous
demanderais de rejete a la face meme la requete de monsieur
Gravel.

-TRA: Yes, quite simply, madam judge, that the criteria in
Section 520 for revision of bail haven't been met by the
Applicant. Consequently, I would ask you to reject Mr.
Gravel's motion on the face of it.

JCT: Wow. Gravel didn't follow 520 right so throw it out. No
explanation of what was in particular was done wrong after
hinting he'd failed to meet them all in the plural.

TRUDEL J: Est-ce qu'il a quelque chose que voulez rajouter
en replique a ce que vient de dire la procureur.

-TRA: Do you have something to add in reply to whatever the
Crown just said.

GRAVEL: Je n'ai pas bien compris. Pouvez-vous repeter votre
question, s'il vous plait?

-TRA: I didn't understand. Could you repeat the question,
please?

TRUDEL J: Suite au propos de la procureur qui repondait a
votre argument, est-ce que vous souhaiter dire quelque chose
en replique?

JCT: Given whatever the Crown just said in response to your
argument, do you wish to say something in reply?

JCT: He's being asked to reply to "whatever" he missed.

GRAVEL: Oui. Je l'explique asser bien dans mon... C'est tout
ecrit la dans mes documents. Vous avez eu la chance de le
lire?

-TRA: Yes, I explain it pretty well in my... It's all
written down in my documents. Have you had the chance to
read them?

JCT: I'd have made a motion for Particulars. They can't just
say: you missed something in this section. You have to say
what section you missed in particular. So when they don't
give you the particulars of their ambiguous charge, you can
ask. Of course, I've dealt with this before. Imagine no one
having any idea what he did wrong. Le Droit had to make
something up. And the judge asking him to respond to
"whatever it is she said" was wrong without her having to
particularize what was wrong. Think about that. The judge
keeps asking Dominic to reply to the accusation that
"something from Section 520 is wrong" without finding out
what the Crown says it is that is wrong. Imagine! "What's
your answer to whatever the Crown accuses you of?" Sounds
Kafkaesque, doesn't it.

TRUDEL J: Oui, je l'ai lu. Alors ca, ca constitue la
replique, le document intitule "arguments ecrits de Dominic
Gravel" qui est signe par vous a Gatineau le 24 mars 2005 et
que j'ai lu tout a l'heure dans mon cabinet, constitue votre
replique aux propos de la procureur?

-TRA: Yes, I read it. So, that constitutes your reply, the
document titled "Written Representations of Dominic Gravel"
that was signed by you in Gatineau on March 24 2005 and that
I read earlier in my office, that constitutes your reply to
whatever the Crown said.

JCT: Of course the "Written Representations" about federal
service have nothing to do with "whatever the Crown said"
and can't be a response to "whatever." The response to
"whatever the Crown said" was right in his documents, no
matter what the Crown said. Dominic gave the right answer.
The Ace of Diamonds is in his case file and until he
understands why the 520 card trumps it, he can only keep
pointing out his winning card in the case file. So not only
does she urge him to find a response to "whatever the Crown
said" but now she presumes that his non-related earlier
representations are germane to it. Wow.

GRAVEL: C'est ca. C'est tout.

-TRA: That's it. That's all.

TRUDEL J: Tres bien. Alors, la requete est rejete.

-TRA: That's fine. So, the application is dismissed.

JCT: Now you know what it feels like to run into a stacked

deck.

There you have it.  A prohibitionist Judge that does not act as the self representatives advocate, and makes it as if no one is watching.
roger roeder

Mood: happy, popped some script bromazepam, no anxiety, clear of thought, and true to purpose
Listening to: the top 5 best and worst videos of "86" on much more music here in Canada

work in progress, probally take about a month or so


Don Newman, senior political spokesperson for CBC NewsWorld.  Order of Canada recipient.

no specific line of thought follows as I figure this out as per wording of course.

don newman sent frankel scandal facts

don newman does nothing

don newman says he is a reporter

don newman does not report people getting hurt from coast to coast to coast (i have dipped my feet in all three....heee heee)

don newman obviously lied to or miss-lead by cbcs' legal staff

don newman even though possibley lied to by legal staff cannot understand
when frankels' memo states as it stands now cannabis is legal and then read that frankals appeal was denied by the appeal court........THE JUDGE KNOWING IT IS LEGAL FROM FRANKELS MEMO DENIES HIS APPEAL KEEPING IT LEGAL.

don newman a recipient of 'THE ORDER OF CANADA'  cannot seem to understand basic english.

i wonder how don's superiors got don not to announce this?  i am sure there might have been some kind of slow news time here in Canada where he could have slipped it in  that cannabis is now declared legal by the courts.

this makes don newman my second most stupidest person in power.

I am wondering about hijacking an electoral riding which is at present held by the Federal Liberals.......

How.

Problems from the start would be that I would not be allowed the Liberal Party membership list as held onto by the Riding President.  They will not share it which gives them control over who THEIR candidate is.

Steps maybe?

First theres me
.
Second, convince and sign up dedicated members who will support my one trick pony of gaining a national forum to............surprise.

Third.  Identify who would be willing to support a one trick pony as in a one issue pony.
I believe it could and would have to come from informed youth from the ages of 18 to say 21.  Why?  They are the most informed.

Fourth.  Where to find them and are they willing to put their name to paper if it means that they are now with some apprehension "out there" as in being an ingestor of herbal flowers.
Door to door, no.
Internet, ah no as the electoral riding is small while the internet is huge.
Ok, leave this one for while....maybe the older arthritic, maybe the high school 18 yr olds still remaining.
A problem is trying to get people signed up who are willing to state that they use herbal remedies against what they believe is agianst the law.  Where to meet them???????  University students who partake occassionally, OR how about getting ahold of the hells and associates....no they would think I was a narc

Therein lies that problem.


Five.  Sign up at least 300 dedicated members

Six.  Overthrow by voting out the ruling elected Riding President and Staff and replace with volunteers from the 300 signed members.  The 300 members should ensure a majority within the riding.

Seven.  Wait for an election and of course win.  This is a Liberal Riding through and through.

Eight.  Once up on the Hill. Put plan into action to scream the loudest to whoever will hear me about laws regarding herbs.  As a respected Member of Parliament many avenues for speaking will be available.

So it all boiled down to lack of funds, and I am sure the estimated future potential  donations, as to why the Conservatives have not overthrown the Liberals.

Follow the money, eh.

This now makes 2 seperate timelines for the next election.

One.  The Liberals now know they have some breathing room to attempt to mend their dithering ways with the hopes that they can come across as a (insert political buzz words here) to the electorate..........fat chance.

This timeline would indicate late fall in November 05 which is when the Conservatives would be able to secure more financing.

Two.  The Conservatives self destruct back to their two seperate parties as indicated by the media.

Timeline would indicated late summer election in early Sept 05 right after the kids are back in school.

Both timelines still indicate a Liberal minority of 3 to 5 seats. 

The Bloc and NDP now sit as a pair of Aces in Parliament versus the then pair of Jokers.

These two minor parties finances are still unknown to me but with diehard Bloc and diehard socialists.....they don't need much money anyway for electoral advertising and can keep the Liberals dithering back and forth between socialism on the left and the Bloc on the ???? from Quebec.

roger m roeder

Mood: A little frustrated with a blip on a Court case I am following, (one of many)
Listening to: Don Newman covering the Conservtive Convention

Why would they allow religion in politics.

What does whomevers' "bible" have to do with Federal Budget, the military, my neighbour, and same sex marriage?

I am not my neighbours keeper.  My neighbour IS DEFINATELY NOT MY KEEPER.

Next thing you know some religion will determine that one cannot raise THEIR children under NO religion.

Get religion out of running the Country.
Get religion out of running my life.
Within some religions there is a bounty,
as to how one enters the after-life.

Basically, if my neighbour is two men or two women or two who are not sure....ITS NO BODIES BUSINESS BUT THERES.

If a person is uncomfortable with this, it shows ignorance of individual soverignty.

How would one deal with ones neighbour who can dictate and pass laws to THEIR BELIEFS AND PREJUDICE........................

I did not think so.   You would tell them to take whatever bible they use and go to Hell.

Mood: Went from happy to sad...personal reasons
Listening to: Corner Gas....what a riot...lmao

Just musing outloud to myself and my 3 cats.

Trying to put together whats going on with the Conservative Convention goings on in Montreal with the present Parties and how this affect the next election.

Still a Liberal minority predicted but only by about 5 seats.

The Conservatives appear to be self destructing under the guise of DEBATE.

The Bloc Quebecois will be picking up Liberal seats in Quebec coutesy of AdScam.

The NDP will only pick up one or two seats from the Liberal left.

The left leaning Conservatives which would make up the disallowed youth wing will vote Liberal as they recognize personall rights issues.  The exception here is the church youth from the west.

The Conservatives still have not ruled out 100 percent of not using the "not withstanding clause".  That can be used by the Libs as those SCARY Cons will take away your given rights.

The Bloc might be afraid to destroy the Libs with the Frankel scandal  as it might tip the scale into a Conservative minority.....like that would be a bad thing.  Embarass them further....destroy the Cons and then what?  A Lib majority next time.  BAD FOR THE BLOC IN QUEBEC as they would have to  counter the riding Liberal wave of support.

hmmm what to think.

Bloc destroy libs with Krieger scandal

Bloc kicks libs out of Quebec, Quebec cheers.

The Cons are self destructing and cannot counter Krieger scandal if elected to power as in "not withstanding clause".

The NDP are afraid of personal increase in civil liberties in reality by only paying lip service to the Libertarians as they will not use Krieger Scandal to destroy Libs as most Libs will vote NDP if the Lib ship sinks.

NDP cannot use Krieger scandal as it scares away old retirees which is their main electoral base (they are hoping for a massive increase in pension dollars) The destroyed Libs would not make up for the loss of retiree votes.

The NDP scare anyone with an income over 20, 000 dollars.

YUP, another Liberal minority, albeit by only about 5 seats.

roger m roeder kitchener ontario canada

HAPPY BIRTHDAY RICK.

my bro is 41 today.

Below is an 8 part entry of Mrs Noreen Evers Court Battle to force the Canadian Government to admit that cannabis is legal.

She proves that the Courts have declared all cannabis laws "as if they never existed".

Canadas' governments problem is that they if they admit cannabis is as legal as turnip, its political suicide for the minority Liberal govenment, especially now in the wake of the 4 Mounties deaths.......

24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the
circumstances.

(2) Where, in proceedings under subsection (1), a court
concludes that evidence was obtained in a manner that
infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is
established that, having regard to all the circumstances,
the admission of it in the proceedings would bring the
administration of justice into disrepute.

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of
all matters within the authority of Parliament including all
matters relating to the Yukon Territory and Northwest
Territories; and

(b) to the legislature and government of each province in
respect of all matters within the authority of the
legislature of each province.

52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency,
of no force or effect.

9. Treaty Obligations.

Pg 33 of the Senate Report (supra Tab ___), the Senate makes
the following observations:

- The series of international agreements concluded
since 1912 have failed to achieve their ostensible aim of
reducing the supply of drugs;

- The international conventions constitute a two-tier
system that regulates the synthetic substances produced by
the North and prohibits the organic substances produced by
the South, while ignoring the real danger the substances
represent for public health;

- When cannabis was included in the international
conventions in 1925, there was no knowledge of its effects;

- The international classifications of drugs are
arbitrary and do not reflect the level of danger they
represent to health or to society;

- Canada should inform the international community of
the conclusions of our report and officially request the
declassification of cannabis and its derivatives (emphasis
added).

In R. v Parker (July 31, 2000), 2000 C28732 (ON C.A.) Crown
Authority, Volume 1 Tab 1 Pages 268, 269,
"Endnotes" para 11 the Ontario Court of Appeal address
Crown's concerns regarding Treaty Obligations:

11 In any event, the Constitution takes precedence over any
treaty obligations: Attorney-General for Canada v. Attorney
General for Ontario and Others, [1937] A.C. 326 (P.C.). Tab
_____

12 Canada acceded to the Covenant on May 19, 1976 and it
came into force in Canada on August 19, 1976.

13 The Crown, of course, claims that the legislation already
contains sufficient exemptions. In any event, if treaty
obligations are a matter more properly considered under s.
1, the Crown did bear the burden of proof on that issue.

10. CDSA 4 & 7 and 5 have been declared unconstitutional: In
the studies of the case law in the presentations of both
Crown and myself, the marihuana prohibition in CDSA 4, 7 and
5 have been found to be against Section 7 and Section 1
Charter rights (emphasis added):

R. v. Parker (O.C.J.) Toronto Region (The Honourable Judge
Patrick Sheppard on December 10, 1997) (supra) Page 12

"Mr. Parker will be granted immediate protection under
Section 24(l) of the Charter of a stay of proceeding with
respect to count I (cultivate a narcotic, Section 6(l)
N.C.A.) and the September 18, 1997 count (possession of a
controlled substance, Section 4(l) of the C.D.S.A). All
plant material (three plants) seized from him by the
Metropolitan Toronto Police Services on September 18, 1997
is to be returned to him forthwith..." "...It is ordered
pursuant to Section 52, that Section 4(1) and Section 7(l)
of the C.D.S.A. be read down so as to exempt from its ambit
persons possessing or cultivating Cannabis (a schedule II
substance) for their personal medically approved use.

R. v. Parker (July 31, 2000), 2000 (ON C.A.)
Date: 2000-07-31 Docket: C28732 Case supplied by Crown. Page
______ Para ____, 191_

[10] I have concluded that the trial judge was right in
finding that Parker needs marihuana to control the symptoms
of his epilepsy. I have also concluded that the prohibition
on the cultivation and possession of marihuana is
unconstitutional. Based on principles established by the
Supreme Court of Canada, particularly in R. v. Morgentaler,
[1988] 1 S.C.R. 30, where the court struck down the abortion
provisions of the Criminal Code, and Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519, where the
court upheld the assisted suicide offence in the Criminal
Code, I have concluded that forcing Parker to choose between
his health and imprisonment violates his right to liberty
and security of the person. I have also found that these
violations of Parker's rights do not accord with the
principles of fundamental justice.

[11]..I would declare the prohibition on the possession of
marihuana in the Controlled Drugs and Substances Act (CDSA)
to be of no force and effect. However, since this would
leave a gap in the regulatory scheme until Parliament could
amend the legislation to comply with the Charter, I would
suspend the declaration of invalidity for a year. During
this period, the marihuana law remains in full force and
effect. Parker, however, cannot be deprived of his rights
during this year and therefore he is entitled to a personal
exemption from the possession offence under the Controlled
Drugs and Substances Act for possessing marihuana for his
medical needs. Since the Narcotic Control Act has already
been repealed by Parliament, there is no need to hold it
unconstitutional. If necessary, I would have found that
Parker was entitled to a personal exemption from the
cultivation offence for his medical needs."

7. Can any violations be saved by s. 1?

[191] The onus was on the Crown to establish that the
violations of Parker's rights could be saved under s. 1 of
the Canadian Charter of Rights and Freedoms. The Crown did
not suggest that the violations could be saved by s. 1. In
any event, many of the defects in the legislation that
contribute to the deprivations of Parker's rights
practically preclude the legislation from meeting the
proportionality test under s. 1.

[192] In particular, one of the purposes of the law is to
prevent harm to the health of Canadians and the resulting
costs to society. However, the broad nature of the marihuana
prohibition has the effect of impairing the health of Parker
and others who require it for medial purposes. In this
sense, the legislation works in opposition to one of the
primary objectives and thus could be described as
"Carbitrary" or "Cunfair" R. v. Keegstra (1990) 61 C.C.C.
(3d) 1 (S.C.C.) per Dickson C.J.C. at 53 and per McLachlin
J. (dissenting) at 114.

[193] The only possible basis for holding that the provision
of the Controlled Drugs and Substances Act constituted a
reasonable limit is that s. 56 tempers the facial
overbreadth of the prohibition. However, for the reasons of
L'Heureux-Dube J. and McLachlin J. in Committee for the
Commonwealth of Canada v. Canada, the plenary discretion
vested in the Minister precludes a finding that this is a
reasonable limit. Thus, whether the s. 56 exemption is
considered under s. 1 or s. 7, it cannot save the
legislation.

[194] Finally, the broad prohibition means that the section
fails the minimal impairment test: R. v. Heywood (1994), 94
C.C.C. (3d) 481 (S.C.C.) at 523. There is no need to
prosecute people like Parker who require marihuana for
medical purposes to achieve any of the three objectives
identified by the Crown: preventing harm, international
treaty obligations, and control of the trade in illicit
drugs. Less intrusive means are available to meet these
objectives. The Californian and Hawaiian legislative schemes
are but two examples of how these objectives might be
reconciled with the needs of patients requiring access to
marihuana.

Order: R. v. Parker (July 31, 2000), 2000 (ON C.A.)
Date: 2000-07-31 Docket: C28732 Tab ____

THIS COURT ORDERS that the remedy granted by the trial judge
is varied by declaring the marihuana prohibition in s. 4 of
the Controlled Drugs and Substances Act to be invalid. The
declaration of invalidity is suspended for a period of 12
months and the respondent is exempt from the marihuana
prohibition in s. 4 of the Controlled Drugs and Substances
Act during the period of suspended invalidity for possession
of marihuana for his medical needs. The part of the Sheppard
J.'s judgment reading in a medical exemption into the former
Narcotic Control Act and the Controlled Drugs and Substances
Act are set aside and the plants seized in the September
1997 search are ordered to be returned. In all other
respects, the Crown's appeal is dismissed.

R. v. Krieger (2000), Reasons for Decision 2000 ABQB 1012
Tab ____

"[44] I am satisfied that s. 7(1) of the CDSA deprives
Mr.Krieger and those who are similarly situated of their
rights under s. 7 of the Charter to the extent that it
prohibits these individuals from producing raw cannabis
marihuana for their own therapeutic purposes. I am also
convinced that such deprivation is not in accordance with
the principles of fundamental justice...

[55] I am prepared to agree with the Applicant that s. 7(1)
of the CDSA should be struck down to the extent that it
deals with production of cannabis marihuana. If s. 4 were
before me I, like the Ontario Court of Appeal in R. v.
Parker , supra , would strike down the prohibition against
possession of marihuana because to do otherwise would be, to
use Dr. Kalant's word, "inhumane" to Mr.Krieger under the
circumstances."

[56] I am troubled by the fact that the Canadian government
has not made arrangements for a legal source of cannabis
marihuana to be made available to persons who require it for
therapeutic use. Since Dr. Kalant indicated that he was able
to obtain cannabis marihuana for research purposes, it must
be available from some legitimate source. I trust that if I
put a stay of one year on the effect of my decision, similar
to that done by the Ontario Court of Appeal, this problem
will be solved within the year.

[57] With respect to Mr. Krieger , I am satisfied on the
evidence of the Crown's expert witness and Mr.Krieger
himself that it would be inhumane not to grant Mr. Krieger
an exemption from the prohibition in s. 7(1) of the CDSA
during the period of the suspended invalidity in order that
he may cultivate cannabis marihuana for his own medical use.
Pursuant to s. 24(1) of the Charter, I would stay the
proceedings against him under s. 7(1) of the CDSA.

Upheld at R. v. Krieger, 2003 ABCA 85 Order and Reasons for
Judgment

Date: 20030318 Dockets: 01-00011-A, 01-00288-A Tab _____

The further Order of the Alberta Court of Appeal dismissed
the Crown's appeal against Acton J.'s Krieger declaration
that the cultivation prohibition under s.7(1) of the CDSA
was of no force and effect with Justice Costigan ruling for
the panel: Costigan, J.A. (for the Court):

[1] The Respondent was charged with possession of marihuana
for the purpose of trafficking contrary to s. 5(2) of the
Controlled Drugs and Substances Act, S.C. 1996, c. 19 and
unlawful production of marihuana contrary to s. 7(1) of the
Act.

[2] The Crown appeals a voir dire ruling which struck down
s. 7(1) and also appeals the Respondent's acquittal by a
jury of the s. 5(2) charge.

[3] As to the voir dire ruling, the Crown says that the
trial judge applied the wrong test in finding that the
Respondent was deprived of his s.7 Charter right to security
of his person in the face of evidence that there were other
untried and effective legal alternative treatments. We are
not satisfied that the trial judge applied the wrong test,
nor are we satisfied that the evidence established other
effective alternatives. At best, the evidence on the
effectiveness of the alternatives was equivocal. In those
circumstances, the trial judge was entitled to find that the
Respondent's right to security of his person was infringed
by denial of a treatment which the evidence established was
effective.

[6] Nor are we satisfied that the trial judge imposed a
positive obligation on the Crown to ensure a supply. The
trial judge struck s. 7(1). Her order imposed no obligation.

[7] Therefore, we dismiss the appeal as it relates to the
voir dire ruling.

[65] It may be that, had the MMAR been in existence at the
time of the Parker decision, the Ontario Court of Appeal may
have come to a different conclusion with respect to the
issue of whether the marihuana prohibition in s.4 infringed
on Mr. Parker's s.7 Charter rights. It is also possible the
court may still have come to the same conclusion on the
basis of the lack of any legal supply of marihuana, as was
found by Lederman, J. in Hitzig. However, that is all
immaterial to the application before me. In my view, s.4 of
the Controlled Drugs and Substances Act, as it applies to
marihuana, ceased to be valid legislation after July 31,
2001.

[66] If I am wrong in this, and it is possible for
regulations addressing the concerns raised in Parker to halt
the operation of the declaration of s.4's invalidity, then I
agree with the decision in Hitzig that the MMAR were
inadequate for this purpose because, as long as there is no
legal supply of marihuana for persons requiring it for
medical use, the infringement on s. 7 Charter rights
identified in Parker has not been cured. The enactment of
the Marijuana Exemption (Food and Drugs Act) Regulations on
July 8, 2003 may or may not address the concerns raised in
Hitzig but came too late to have any effect on the
declaration of invalidity in Parker. July 31, 2001 had, by
that time, already come and gone, and the legislation had
already been rendered invalid. Once invalid, it became a
nullity and could not be resuscitated; it could only be re-
enacted.

Disposition

[67] It follows therefore, that there is no offence known to
law at this time for simple possession of marihuana. The
application is allowed.

At R. v. Graham and Parks, 2003
BCPC 0369
Ruling on Application 2003-10-06
Tab _____
BC Judge Buller Bennett upholds the Masse decision:

19] After careful reading of the Masse decision and
submissions of counsel, I am not aware of any subsequent
decisions that have affected the validity of Judge Chen's
judgment. Also, Judge Chen thoroughly analyzed the existing
case law and statutes, so I could not conclude that it was
in any way a nisi prius judgment.

[20] Crown Counsel submits that I ought to depart from the
Masse decision because it was incorrect decided upon
questionable, non-binding authority. That, however, is not
the test. As I stated above, all relevant cases and statutes
were considered and analyzed. Although I would have come to
a different conclusion on those authorities than Judge Chen,
again according to Re: Hansard, that is not reason enough to
depart from his decision.

[21] Therefore, I must follow Masse and the conclusion that
section 4(1) of the Act as it related to the simple
possession of marihuana is invalid.

[24] Having found that the law is invalid, the spectre of
abuse of process raises its head. Is it an abuse of process
to prosecute under an invalid law? I take from Stavert and
Clarke that it most certainly is an abuse of process. I
agree with that conclusion.

14. Crown will not acknowledge previous Court's decisions.
In R. v. Graham and Parks, 2003 BCPC 0369 Ruling on
Application 2003-10-06 (supra) Tab _____ Judge Buller
Bennett notes:

[14] Crown Counsel submits that the law is still valid until
the British Columbia Court of Appeal or the Supreme Court of
Canada decides otherwise. Crown also relies on Hadwen.

and so continues to prosecute for a null and void law:

Queen v. Stavert, 2003 PESCTD 85 Date: 2003-10-23 Docket: S-
2-GC-03 Tab ______

R. v. Nielsen (14 September 2004), Brantford Doc. No. 04-
1379 (Ont. Prov. Ct.) Tab _____

HMTQ v. R. Johnson and S. Johnson, Decision on Application,
File #04-168 Elliot Lake (OCJ) Transcript of Proceeding
before the Honourable Madame Justice L. Serre at Elliot Lake
Ontario February 1, 2005. Tab _____

R. v. Evers (This application)

R. v. Tall (to be heard 24 March 2005 Courtenay Registry)

R. v. Whynott (to be heard 24 March 2005 Courtenay Registry)

15. Question: Why does Crown continue to prosecute a null
and void law, contrary to Section 32 and Section 52
Constitution Act, 1982 (supra)?

a. At R. v. Krieger (supra) Crown Attorney S. David
Frankel's Memorandum to the Supreme Court of Canada 2003 May
16 Tab _____ , (2003 May 16 S. David Frankel - clause and
signature page) Tab ____pleaded for Leave to Appeal the
Krieger invalidation of S.7 and S. 4 of the CDSA because:

[57].. as matters now stand s.7(1) has been declared of no
force and effect by the highest court in Alberta.

The Supreme Court of Canada dismissed Crown's appeal:

2003 Dec 23 Supreme Court of Canada Bulletin of Proceedings
- Krieger Tab ____

Trial judge finding that prohibition on production of
cannabis marihuana infringing accused's s. 7 Charter rights
and not saved by s. 1..."

"(Acton J.) Section 7(1) of the Controlled Drugs and
Substances Act, inasmuch as it relates to cannabis
marihuana, declared inconsistent with the Charter;
declaration suspended for one year; Respondent granted an
exemption from the application of s. 7(1); charge stayed"

"December 4, 2002 Court of Appeal of Alberta (Wittman,
Costigan and LoVecchio JJ.A.) appeal with respect to s. 7(1)
dismissed."

b. Question: Is the refusal to hear Krieger on the same day
as Malmo-Levine/Caine (where the court upheld the marihuana
laws) mean that the Court didn't feel it necessary to
address, again, the issues it had just ruled on --that being
the constitutionality of the (marijuana) laws? Because the
Krieger appeal was not heard, does that mean the decision by
the SCC in Malmo-Levine upholding the constitutionality of
the laws remain binding?

Answer: No

Reasons: Malmo Levine/Caine had charter challenges based
upon different reasons than from Krieger. (The cases are not
included for that reason). The SCC decision at Krieger
involved only the Crown appeal at Krieger.
(Evers Letter to ask the Chief Judge
Date: __________ Tab: ___________

c. Question: Does Crown believe that the MMAR save Parker
(and Krieger and St. Maurice) and therefore "fill the
void"?. That the "obiter dicta" at Hitzig v. Canada (2003),
177 C.C.C. (3d) 449 (Ont. C.A.) Crown's book of Authorities,
Volume 1, Tab 5 (dated at October 7, 2003) "saved" the CDSA?

Answer: Yes

16. THE MMAR:

BACKGROUND: The MMAR (Medical Marihuana Access Regulations)
never "saved" Parker (filled the void), and were declared
unconstitutional:

a. The Senate report (supra) at pg 23: This chapter reviews
the events that prompted the recent enactment of the
Marihuana Medical Access Regulations. One of the objectives
of the regulations is to provide a compassionate framework
of access to marijuana for seriously ill Canadians while
research regarding its therapeutic application continues.
Also discussed is the implementation of these regulations,
which came into force on 30 July 2001.

We have observed the following:

- The MMAR are not providing a compassionate framework for
access to marijuana for therapeutic purposes and are unduly
restricting the availability of marijuana to patients who
may receive health benefits from its use;

- The refusal of the medical community to act as gatekeepers
and the lack of access to legal sources of cannabis appear
to make the current regulatory scheme an "illusory"
legislative exemption and raises serious Charter
implications;

- In almost one year, only 255 people have been authorized
to possess marijuana for therapeutic purposes under the MMAR
and only 498 applications have been received this low
participation rate is of concern;

- Changes are urgently needed with regard to who is eligible
to use cannabis for therapeutic purposes and how such people
gain access to cannabis;

- Research on the safety and efficacy of cannabis has not
commenced in Canada because researchers are unable to obtain
the product needed to conduct their trials;

- No attempt has been made in Health Canada's current
research plan to acknowledge the considerable expertise
currently residing in the compassion clubs;

- The development of a Canadian source of research-grade
marijuana has been a failure.

b. In R. v Parker (July 31, 2000), 2000 C28732 (ON C.A.)
Crown Authority, Volume 1 Tab 1 Page 262, the Ontario Court
of Appeal address a concern regarding the process:

[189] I have one final concern with the availability of the
s. 56 process. An administrative structure made up of
unnecessary rules that results in an additional risk to the
health of the person is manifestly unfair and does not
conform to the principles of fundamental justice. We were
provided with little evidence as to the operation of the s.
56 procedure as established by the government. The Oscapella
affidavit includes the Interim Guidance Document, that is,
as I have indicated, to provide guidance for a s. 56
application. The document envisages a detailed application
and entitles the Minister to request further information.
Since the Crown declined the opportunity to present further
fresh evidence about s. 56, the only evidence as to the
actual operation of the programme comes from the cross-
examination of Mr. Oscapella, which was hearsay based on
information he had obtained from government employees,
presumably persons who could have provided evidence for the
Crown.20 Mr. Oscapella testified that, despite the statement
by the Minister in the House of Commons that he intended
there be a "15-day turnaround period", only two exemptions
had been granted as of June 9, 1999. As of August 26, 1999,
a further 15 applications were complete but had still not
been dealt with by the Minister as of the date of the cross-
examination on September 14th. These kinds of delays, which
may be due to the administrative procedure, would further
endanger the health of a person like Parker.

c. In R. v. Turmel, 2002 CanLII 13794 (QC C.S.)
Date: 2002-09-27 Docket: 550-01-003994-011 Tab _____

John Turmel was convicted of contempt of court for
publishing details of Health Canada stalling 94 "dormant"
Section 56 Marijuana Exemption applicants to death.

"[9]..he admits certain facts:

3. On November 7th, 2001, the defendant admitted in the
presence of many witnesses including Stephane Lamoureux, <I
got excited this is bigger than Walkerton>...
 
[23] On the 6th November 2001, Mrs. Cripps-Prawak testified
for the first time on the number of persons who applied
under the law. At that time, she mentioned that Health
Canada has 94 + dormant ; files [i.e.] meaning inactive.

[24] John C. Turmel testifies that he concluded from that
information that these 94 applicants were deceased. He then
believed that this situation created an urgency to act
rapidly in order to avoid more deaths. He therefore
published the information for different groups even though
he knew the existence of the publication ban."(Mrs. Cripps-
Prawak also testified that 15 of the 94 dormants had been
found deceased.)

d. Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 (Ont. Sup.
Ct) January 9, 2003 Crown's book of Authorities, Volume 1,
Tab 4, Page 25 (referred to as Hitzig/Lederman decision)

LEDERMAN J.:---

INTRODUCTION

[1] This is yet another legal proceeding arising from the
tension that presently exists in Canada between the criminal
and the medicinal use of marijuana. Although the Minister of
Justice has recently announced his intention to introduce
legislation to decriminalize the simple possession of less
than 30 grams of marijuana, its continuing criminal status
plays an important part in this case.

[2] These applications concern the constitutionality of the
Marihuana Medical Access Regulations, S.O.R./2001-227, made
by the Governor in Council on 14 June 2001 pursuant to
subsection 55(1) of Controlled Drugs and Substances Act,
S.C. 1996, c. 19. More particularly, at issue is whether
these regulations, in conjunction with prohibitions
specified in the Controlled Drugs and Substances Act [CDSA],
violate some or all of the applicants' rights to liberty and
security of the person as guaranteed by s. 7 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 [Charter]. These applications follow very much
in the footsteps of the Ontario Court of Appeal's 31 July
2000 decision in R. v. Parker (2000), 49 O.R. (3rd) 482
[Parker]. Indeed, the accused in the Parker case is one of
the applicants presently before this court.

[3] In Parker, the Court of Appeal held that a legislative
prohibition on the possession of marijuana without an
exception for medical use violated Terrance Parker's right
to liberty and security of the person. Mr. Parker's liberty
rights were infringed because he faced imprisonment upon
conviction for possession. The prohibition also denied him
the right to make decisions of fundamental personal
importance, namely to choose a medicine which alleviated the
effects of his epilepsy. His security of the person was also
violated because the marijuana prohibition forced him to
choose between committing a crime to obtain effective
medical treatment and inadequate medical treatment.

Page 26 [7] The Marihuana Medical Access Regulations [MMAR
or Regulations] came into force on July 30, 2001, one year
less a day after the Parker decision was released. While the
respondent claims that these Regulations establish a
framework which addresses the prior regime's constitutional
infirmities, the applicants contend that the MMAR are no
more constitutionally satisfactory than s. 56 of the CDSA.

[8] For the reasons given below, I find the MMAR to violate
the applicants' s. 7 rights to liberty and security of the
person in a manner inconsistent with the principles of
fundamental justice. The Regulations fail to provide
individuals who have a serious medical need to use marijuana
with a legal source and safe supply of their medicine. This
violation is not saved by s. 1 of the Charter. By way of
remedy, the MMAR are declared to be of no force and effect.
This declaration of unconstitutionality is suspended for six
months.

e. One cannot be required to submit to a process that is
unconstitutional. The principle that individuals do not have
to submit to unconstitutional regulatory regimes before
challenging them is recognized under s. 7 of the Charter.
Section 7 guarantees the "right to life, liberty and
security of the person and the right not to be deprived
thereof except in accordance with the principles of
fundamental justice". The Hitzig applicants had not applied
for government approval to possess marijuana because they
contended that the regulatory regime that controls access to
medical marijuana violated their right to security of the
person.

Lederman J. found at para. 117 that the "Individuals' s. 7
rights are engaged with respect to the MMAR as soon as they
wish to use marijuana for therapeutic purposes". He further
commented at para. 116 that: "Governments cannot insulate
their laws from constitutional scrutiny by claiming that
individuals have not 'engaged' a regulatory regime when it
is the regulations themselves which limit how those
individuals exercise their rights."

2003 Jan 09 - Order by Ontario Justice Lederman that MMAR
are constitutionally invalid and are of no force and effect.
Tab _____

f. Mar 31 2003, Ontario. On a motion to consolidate the
Hitzig AND Turmel-Paquette applications into the Terry
Parker case, Madam Justice K.M. Weiler of the Ontario Court
of Appeal ruled: "For the sake of clarity, the style of
proceedings is to reflect the name of Mr. Parker first in
the list of parties..."

g. Jun 25 2003 CARTHY J.A. refused to extend the suspension
to save the MMAR. In Parker, Turmel-Paquette, Hitzig et al
v. HMTQ, Carthy J.A. refused to extend the suspension of the
Lederman declaration of invalidity of the MMAR. The Crown
appealed believing the Court of Appeal can do Parliament's
job of bringing the MMAR back to life.

2003 June 25 Endorsement - Ontario Court of Appeal Docket:
M29602 C39738 Re: Terrance Parker/Hitzig et al/John C.
Turmel et al v. Queen Tab ______

h. On July 09 2003 the Justice Lederman suspension of the
MMAR invalidation expired. The Marijuana Medical Access
Regulations (MMAR) became of no force and effect at
midnight. In the vain hopes of pulling off a resurrection if
the appeal of the refusal to extend the suspension wins and
they extend it so the MMAR can be kept alive, the Ministry
of Justice announces it is shipping out the pot to Canada's
exemptees in compliance with the Lederman Order that has
come into effect. Though they have accepted the Lederman
Order about the necessity of providing the pot, they failed
to accept the Lederman Order about the invalidity of the
MMAR legislation. The MMAR law was gone like the CDSA law it
was trying to save two years too late. So, the artificial
MMAR heart didn't work to save the CDSA patient by July 31
2001 and the patient was declared dead. Now the artificial
MMAR heart that didn't save the CDSA is declared bad on July
9 2003. For the first time, both the CDSA ship and its MMAR
lifeboat are sunk.

There is no CDSA prohibition system, there is no MMAR
permission system, (as per Section 52, Constitution Act,
1982 and Interpretation Act 2(2) Tab _____

j. Aug 01 2003 COURT UPHOLDS CARTHY J.'S REFUSAL TO EXTEND
SUSPENSION OF MMAR INVALIDATION The Court of Appeal
dismissed the Crown's appeal in Parker et al (including
Hitzig) against Carthy's refusal to suspend the declaration
of invalidity: "We treat this as a request by the Crown for
a stay of the order of Lederman J....We do not propose to
make any order."

The Crown was still asking for a continued stay of the
Lederman Order to be able to argue that though the Order had
come into effect and repealed the MMAR, this later stay
would cancel that effect and unrepeal the MMAR. So, for
sure, the MMAR permission legislation was repealed on July 9
2003 and was not alive when the Ontario Court of Appeal
started the Hitzig operations on the bad parts out of the
MMAR cadaver.

Appeal book Endorsement Citation: Parker v. R., 2003 CanLII
3527 (ON C.A.) Date: 2003-08-01
Docket:M30070;C39738;C39532;C39740 Tab ______

k. Hitzig v. Canada (2003), 177 C.C.C. (3d) 449 (Ont. C.A.)
Crown's book of Authorities, Volume 1, Tab 5 (dated at
October 7, 2003) (supra) states:

i. [3] The appeals come from three civil applications heard
together by Lederman J. One application was brought on
behalf of Mr. Hitzig and seven others (the "Hitzig
application"). These applicants sought a declaration that
the MMAR were unconstitutional and a further declaration
that the prohibition against possession of marihuana in s. 4
of the CDSA was of "no force and effect" in accordance with
the decision of this court in R. v. Parker, supra.

JCT: Actually, it was 1) Parker, 2) Hitzig, 3) Turmel-Paquette

The second application was brought by Mr. Parker in person.
He also sought an order declaring the prohibition against
possession of marihuana in the CDSA unconstitutional, and
further asked the court to continue his personal exemption
from that prohibition and the prohibition against
cultivation of marihuana. The third application was brought
by Mr. Turmel and Mr. Paquette in person. This application
was broader than the Hitzig application. In addition to
challenging the MMAR,

Note: (In actual facts, Turmel, Paquette and Parker NEVER
challenged the MMAR. Their challenge was only to the CDSA.
Crown and the courts, through various judgments, {like this
one in Hitzig OCA} have IMPLIED that their challenges were
to the MMAR. They have always asserted the CDSA prohibition
was of no force and effect 1 Aug 2001)

http://www.cyberclass.net/turmel/timeline.htm
Tab _______ and attachments.

these applicants argued that the prohibition against the
possession of marihuana amounted to a "genocidal violation"
of the right to life in s. 7 of the Canadian Charter of
Rights and Freedoms of all persons, in that marihuana
consumption could prevent healthy people from becoming ill.
Messrs. Turmel and Paquette sought a declaration that the
possession prohibition was of no force and effect, and
requested "personal judicial exemptions" from that
prohibition.[2]

[4] In considering the merits of the s. 7 Charter claims
advanced on the applications, Lederman J. rejected Mr.
Turmel's contention that the criminalization of the
possession of marihuana violated the right to life of all
persons. He next analyzed the provisions of the MMAR and
concluded that the applicants, save Mr. Turmel, had
established a threshold violation of their right to liberty
and their right to security of the person. Lederman J.
completed his s. 7 analysis by considering whether those
threshold violations were in accord with the principles of
fundamental justice. He focused on two issues, the
eligibility conditions set by the MMAR and the source of
supply for those who did qualify for a medical exemption. He
concluded that the process put in place by the regulations
to determine eligibility for a licence to possess or grow
marihuana "might be cumbersome" and some of the criteria
"onerous", but that it was not inconsistent with the
principles of fundamental justice. He went on, however, to
hold that the absence of a legal supply of marihuana for
those persons who were entitled to possess under the MMAR
offended basic tenets of the legal system and was
inconsistent with the principles of fundamental justice. He
further held that the infringement was not saved by s. 1.
His judgment reads:

[1] This court orders and declares that the provision of the
Marijuana Medical Access Regulations, S.O.R./2001-227 made
by the Governor-in-Council on 14 June, 2001, pursuant to
subsection 55(1) of the Controlled Drugs and Substances Act,
SC 1996, c. 19 (the MMAR) are constitutionally invalid and
are of no force and effect;

[2] This court orders the suspension of the foregoing
declaration for a period of six months.

[5] The Government appeals, alleging error in the holding
that the Government's failure to provide a legal source of
medical marihuana for those entitled to possess it
constituted a violation of s. 7 of the Charter. The Hitzig
applicants support this aspect of the judgment below. They
cross-appeal, however, alleging that Lederman J. erred in
holding that the eligibility criteria in the MMAR did not
contravene s. 7 of the Charter. The Government resists the
cross-appeal, relying on the reasons below. In the course of
these proceedings, the issue raised on the Government's
appeal was referred to as the "supply" issue and the issue
raised on the cross-appeal was described as the
"eligibility" issue.

[6] Messrs. Parker, Turmel and Paquette appeal, alleging
that Lederman J. failed to address their claim that the
criminal prohibition of the possession of marihuana amounted
to a "genocidal violation" of the right to life found in s.
7. They also argue, having found that the MMAR were
constitutionally inadequate, that Lederman J. should have
declared s. 4 of the CDSA to be of no force and effect in
accordance with this court's decision in R. v. Parker,
supra. The Government resists these appeals and also
purports to cross-appeal, advancing the same argument it
raises on its appeal in the Hitzig application.

[7] The appeals and cross-appeals described above were heard
in a single proceeding along with four other related
appeals.[3] These reasons address only the appeals described
above. The other appeals are dealt with in separate reasons.
We will consider the appeal and cross-appeal arising out of
the Hitzig application first, followed by a consideration of
any unresolved issues arising out of the appeals brought by
Messrs. Parker, Turmel and Paquette.

ii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
found that the regulatory constraints on access to medical
marijuana implicated the right to security of the person:

[140] The third attack on the eligibility conditions of the
MMAR, and the one focused on in the argument before us,
rests on the requirement that the physician support for a
medical exemption for individuals in category 2 and category
3 must come from specialists. Again, the Hitzig applicants
make two arguments in mounting the attack.

[141] First, they say that because marihuana is an untested
medication there is no justification for requiring medical
support beyond the individual's own general practitioner
since the specialist has no knowledge advantage. They say
that when this is combined with the practical difficulties
that exist in accessing specialists, particularly in rural
areas, the specialist requirements for categories 2 and 3
constitute an unreasonable barrier which significantly
interferes with those in medical need from accessing the
medication they require.

[165] Taking these considerations together, we conclude that
the remedy which most directly addresses the constitutional
deficiency presented by the absence of a licit supply of
marihuana is to declare invalid sections 34(2), 41(b) and 54
of the MMAR. This will allow all DPL holders to be
compensated, to grow for more than one ATP holder, and to
combine their growing with more than two other DPL holders.
Provided that the regulation of July 8, 2003 remains in
place and is acted upon, there is no need to declare that
the Government has a constitutional obligation to provide
the first seed to those DPL holders who do not have one

iii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
recognized the reality of a suspension of Charder rights:

[175] Finally an order that is not suspended gives immediate
recognition to the s. 7 rights of those whose serious
illnesses necessitate that they use marihuana. Some of these
people are terminally ill. To suspend our remedy if they may
die in the meantime is, in our view, inconsistent with
fundamental Charter values.

Delays also entail taking physicians to court:

Lillico v. College of Physicians and Surgeons of British
Columbia and others, 2004 BCHRT 74 Date: August 4, 2004
File: 1300

In the matter of the Human Rights Code, R.S.B.C. 1996, c.
210 (as amended) Tab ____

A recent email from Marc Paquette to MedPot-discuss group 23
Feb 2005 Tab ___ also speaks of the delays:

- explained to Mrs Levac most of ALL the ordeals I have been
through with "Hellth" Canada since I had my first medical
marijuana exemption in March 2000."

"I also told Mrs Levac that since they have changed their
regulations to the MMAR in August 2001, EVERYONE should have
had exemptions of at least "1" year.... but those that kept
their original "grandfather" Section 56 exemption (before
August 1st 2001) were still forced to renew their exemptions
every 6 months until February 2003!"

"I told her that Mrs Lasher was suppose to send my "my last"
Section 56 rewall (renewal) form since February 1st..which I
NEVER received yet and my exemption expires soon."

"I said: "It wouldn't look too good for "Hellth" Canada
trying to explain to a federal court judge why I can't be
issued a 13th exemption".....

"I decried to Mrs Levac on how Valerie Lasher stressed me in
the phone call, with a complete lack of compassion and
indifference towards my health conditions, by the fact that
she stressed that I will not have my original exemption
anymore and be forced to apply for an MMAR exemption."

"Why should I be forced to have a specialist sign for a 13th
exemption when I only needed "1" doctor for 12 exemptions?"

"I also told her that permanently ill people deserve
permanent exemptions"

iv. The Court of Appeal in Hitzig v. Canada (2003) (supra)
"revived" the MMAR and implied to have "revived" the
marihuana prohibition in the CDSA:

[170] First, if we do not suspend our order, there will
immediately be a constitutionally valid exemption in effect
and the marihuana prohibition in s. 4 of the CDSA will
immediately be constitutionally valid and of full force and
effect. In R. v. Parker, supra, this court declared the
prohibition invalid as of July 31, 2001 if by that date the
Government had not enacted a constitutionally sound medical
exemption. Our decision in this case confirms that it did
not do so. Hence the marihuana prohibition in s. 4 has been
of no force or effect since July 31, 2001. Since the July 8,
2003 regulation did not address the eligibility deficiency,
that alone could not have cured the problem. However, our
order has the result of constitutionalizing the medical
exemption created by the Government. As a result, the
marihuana prohibition in s. 4 is no longer inconsistent with
the provisions of the Constitution. Although Parliament may
subsequently choose to change it, that prohibition is now no
longer invalid, but is of full force and effect. Those who
establish medical need are simply exempted from it. This
consequence removes the cloud of uncertainty from the
marihuana prohibition in s. 4 of the CDSA - a cloud which we
were told in argument has created very considerable
confusion for courts and law enforcement agencies alike. A
suspension of our remedy would simply have continued that
undesirable uncertainty for a further period of time.

xiii. The Court of Appeal in Hitzig v. Canada (2003) (supra)
Order Tab _____

xiv. The Hitzig applicants apply for leave to appeal to the
Supreme court on 2003 December 07 Tab ____

1) Hitzig Application for Leave to Appeal to Supreme Court

2) Crown Memorandum in Response

3) Hitzig Reply

17. At R. v. J.P. (2003) Docket: C40043 Ontario Court of
Appeal 7 October 2003 Tab ____, the same Hitzig Ontario
Court of Appeal implied that because they have "fixed" the
MMAR, the marihuana prohibition in the CDSA is now
constitutionally sound and is now valid:

[3] Section 4 of the Controlled Drug and Substances Act,
S.C. 1996, c. 19 ("CDSA") states:

Except as authorized under the regulations, no person shall
possess a substance included in Schedule I, II or III.

[4] Marihuana is a Schedule II drug.

[5] On July 31, 2000, in R. v. Parker (2000), 146 C.C.C.
(3d) 193, this court held that the prohibition against
possession of marihuana in s. 4 of the CDSA was
unconstitutional, absent a constitutionally acceptable
medical exemption to that prohibition. The court's order
read in part:

This court orders that the remedy granted by the trial judge
is varied by declaring the marihuana prohibition in s. 4 of
the Controlled Drug and Substances Act to be invalid. The
declaration of invalidity is suspended for a period of
twelve months.

[6] By virtue of the order in Parker, the criminal
prohibition against the possession of marihuana in s. 4 of
the CDSA remained in effect until July 31, 2001.

[7] On July 30, 2001, the government brought into force the
Marihuana Medical Access Regulations S.O.R./2001-227
("MMAR"). These regulations purported to alter the criminal
prohibition against the possession of marihuana set out in
s. 4 of the CDSA by adding provisions that permitted
possession and cultivation of marihuana for medical purposes
by those who had received the requisite authorizations under
the MMAR.

[8] In Hitzig v. Her Majesty the Queen (C39532; C39738;
C39740), released concurrently with these reasons, the court
determined that the MMAR as enacted did not provide a
constitutionally acceptable medical exemption to the
criminal prohibition against possession of marihuana. The
court deleted the constitutionally offensive provisions of
the MMAR, leaving a constitutionally valid medical exemption
and a constitutional prohibition against possession of
marihuana in s. 4 of the CDSA.

[9] The respondent's alleged possession of marihuana has
nothing to do with medical need. He did not argue that the
MMAR did not provide a constitutionally acceptable medical
exemption to the criminal prohibition against possession. He
submitted that even if the MMAR provided a constitutionally
acceptable medical exemption, they did not have any effect
on the declaration of the invalidity of s. 4 of the CDSA
made in Parker, supra. He submitted that by its terms, the
Parker order took effect on July 31, 2001, rendering s. 4 of
no force and effect as it applied to marihuana, and absent a
re-enactment of that section, there was no crime of
possession of marihuana in Ontario from July 31, 2001
forward.

[10] For different reasons, the trial court and the Superior
Court held that regardless of the constitutional validity of
the medical exemption created by the MMAR, those regulations
could not have any effect on the declaration of invalidity
made with respect to s. 4 of the CDSA in Parker, supra. Both
courts held that consequent upon that declaration, there was
no crime of possession of marihuana in existence on the day
the respondent was charged.

[11] This court enjoys an advantage over the trial court and
the Superior Court. Having held in Hitzig, supra, that the
MMAR did not create a constitutionally valid medical
exemption, we can determine the merits of the respondent's
claim that there was no charge of possession of marihuana in
existence on April 12, 2002 on that basis. Viewed in light
of our holding in Hitzig, the analysis of the respondent's
claim becomes straightforward. As of April 12, 2002 when the
respondent was charged, the prohibition against possession
of marihuana in s. 4 of the CDSA was subject to the
exemption created by the MMAR. As we have held, the MMAR did
not create a constitutionally acceptable medical exemption.
In Parker, this court made it clear that the criminal
prohibition against possession of marihuana, absent a
constitutionally acceptable medical exemption, was of no
force and effect. As of April 12, 2002, there was no
constitutionally acceptable medical exemption. It follows
that as of that date the offence of possession of marihuana
in s. 4 of the CDSA was of no force and effect. The
respondent could not be prosecuted.

[12] The Crown attempts to counter this straightforward
analysis with a novel argument. It submits that as long as
the Government moved to cure the constitutional defect
identified by the court in the criminal prohibition against
possession of marihuana, during the time when the court's
order in Parker, supra, was suspended, the possession
offence in s. 4 of the CDSA remained in full force and
effect, even if it was eventually determined that the
Government's attempts to create a valid medical exemption
were inadequate. As we understand this argument, the offence
of possession of marihuana would only become of no force and
effect if the court so declared it and either did not
suspend its declaration or the Government did not alter the
prohibition during the suspension period to bring it into
compliance with the Charter.

[13] Applying this argument to the facts of the case, the
Government submits that as the MMAR came into force before
the one-year suspension had expired, the possession offence
remained in effect unless and until the MMAR was found to be
constitutionally inadequate. Lederman J. made that finding
in Hitzig v. Canada (2003), 171 C.C.C. (3d) 18 (S.C.J.) in
January 2003, but suspended his declaration that the MMAR
was unconstitutional for six months. The Government argues
that this means that the possession prohibition continued
during the suspension period. The Government completes the
argument by pointing to the interim policy brought into
effect during the six-month suspension provided for by
Lederman J. According to the Government, that policy, which
further alters the nature of the possession prohibition,
keeps the possession offence in place unless and until the
courts declare that the interim policy does not provide an
adequate medical exemption. Furthermore, according to the
Crown's argument, if the court were to suspend that
declaration, the possession prohibition would remain in
effect during that suspension.

[14] The Crown's contention that the suspension of court
declarations somehow cascade one through the other to
preserve the validity of these charges is based on a
misunderstanding of the nature of the order in Parker,
supra, and the order made by Lederman J. in Hitzig. The
Parker order by its terms took effect one year after its
pronouncement. That order was never varied. After the MMAR
came into effect, the question was not whether the enactment
of the MMAR had any effect on the Parker order, but rather
whether the prohibition against possession of marihuana in
s. 4 of the CDSA, as modified by the MMAR, was
constitutional. If it was, the offence of possession was in
force. Paired with the suspension of the declaration in
Parker, this would have the effect of keeping the possession
prohibition in force continually. If the MMAR did not create
a constitutionally valid exception, as we have held, then
according to the ratio in Parker, the possession prohibition
in s. 4 was unconstitutional and of no force and effect. The
determination of whether there was an offence of possession
of marihuana in force as of April 2002 depended not on the
terms of the Parker order but on whether the Government had
cured the constitutional defect identified in Parker. It had
not.

[15] The order made by Lederman J. in Hitzig in January 2003
did not address the prohibition against possession in s. 4
of the CDSA. While, according to the ratio in Parker, supra,
Lederman J.'s determination that the MMAR did not provide an
adequate medical exemption meant that there was no
constitutional prohibition against possession of marihuana
in s. 4 of the CDSA, Lederman J. did not make that
declaration. Nothing in his order was relevant to whether
the offence of possession of marihuana existed in April
2002, when the respondent was charged. The suspension of
that order could have no effect on the status of the offence
of possession of marihuana.

[16] The policy put in place in July 2003, fourteen months
after these charges were laid, was irrelevant to whether the
offence of possession of marihuana existed in April 2002. An
accused must be able to know on the day that he is charged
whether the offence with which he is charged exists. The
accused cannot be told that the validity of the charge will
depend on what the Government may choose to do at some
future date. The determination of whether there was a crime
of possession of marihuana in force on the day the
respondent was charged turned on whether s. 4 combined with
the MMAR created a constitutional prohibition against the
possession of marihuana.

[29] The Superior Court judge treated this court's order in
Parker as the equivalent of a Parliamentary repeal of s. 4
of the CDSA as it applied to marihuana. We do not share that
interpretation. For convenience, we repeat the salient words
of the order:

The remedy granted by the trial judge is varied by declaring
the marihuana prohibition in s. 4 of the Control Drug and
Substances Act to be invalid.

[30] The order was directed at the marihuana prohibition in
s. 4 as it existed when Parker was decided. The authority to
make the declaration emanates from s. 52 of the Constitution
Act, 1982, which provides that:

Any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no
force or effect.

[31] The court in Parker, supra, declared that the marihuana
prohibition in s. 4 was inconsistent with the Charter and
consequently of no force or effect absent an adequate
medical exemption. In making the declaration, the court did
not and could not repeal or otherwise alter the terms of the
statute. The court could only declare the constitutionally
offensive part of the legislation to be of no force or
effect.

[32] By bringing forward the MMAR, the Government altered
the scope of the possession prohibition in s. 4 of the CDSA.
After the MMAR came into force, the question therefore
became whether the prohibition against possession of
marihuana as modified by the MMAR was constitutional. If it
was, then the possession prohibition was in force. If the
MMAR did not solve the constitutional problem, then the
possession prohibition, even as modified by the MMAR, was of
no force or effect.

[33] There was no need to amend or re-enact s. 4 of the CDSA
to address the constitutional problem in Parker. That
problem arose from the absence of a constitutionally
adequate medical exemption. As our order in Hitzig
demonstrates, the prohibition against possession of
marihuana in s. 4 is in force when there is a
constitutionally acceptable medical exemption in force.

36. Even if it were acceptable as being within jurisdiction
and the Hitzig et al Court of Appeal could strike or read
down five parts of a regulative scheme that expired (MMAR),
its power to do so was limited and curtailed by both Re
Manitoba and Schachter v Canada, which together impose a
burden that is incapable of being met within the confines of
the Courts jurisdiction, statutory and constitutional. The
striking of five parts of the MMAR in all of the
circumstances was void.

37. The Hitzig et al, Court concluded without a proper
analysis of its power to do so, that by striking or reading
down the offending five parts of the MMAR they could give
life to the expired MMAR, and secondly, having recreated
same the end result would automatically be that the
prohibition of possession of marihuana Parker v Q, declared
to be unconstitutional would ipso facto become
constitutional and the CDSA s. 4(1) prohibition against
marihuana would once again be enforceable. On the basis of
this constitutionally infirm assumption that defies all
rules of statutory construction the present applicant stands
charged, with a Court created offence that infringes and
deprives him of his right to liberty and security and the
right not to be deprived thereof except in accordance with
fundamental principles of justice. The position of the Crown
in Parker v Q (supra) was:

"In this respect, I agree with the submissions of the Crown.
In light of the leading decisions on remedy in Schachter v.
Canada, [1992] 2 S.C.R. 679, Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203 and
Rodriguez, the Crown submits that, should this court find a
violation of s. 7 because the legislation fails to provide
adequate exemptions for medical use, the "only available
remedy" is to strike down those provisions and suspend the
finding of invalidity for a sufficient period of time to
allow Parliament to craft satisfactory medical exemptions.

[199] Since the federal Crown takes this position in
defending its own legislation, it is only necessary for me to
briefly indicate my reasons for reaching the same conclusion with
respect to the Controlled Drugs and Substances Act

38. Assuming arguendo that the Hitzig et al judgment
conforms with statutory and constitutional dictates and that
the five stricken parts served to give life to the expired
MMAR, there remains glaring infirmities going to establish
invalidity. The Court failed to constitutionally situate
itself in a position that would permit or vest it with the
power exercised. In fact, the Court concluded that there
indeed was no permanence in the power exercised and that the
striking of those five parts would in all probability give
life to further constitutional attacks. The Court stated at
paragraph

"[172] Third, we acknowledge that the Government could
choose to address the constitutional difficulty by adopting
an approach fundamentally different from that contemplated
in the xxx. The alternatives range from the Government
acting as the sole provider, to the decriminalization of all
transactions that provide marihuana to an ATP holder.
Indeed, even if the Government is content with the solution
contained in the as modified by our order, it may seek to
impose reasonable limits, provided they do not impede an
effective licit supply, for example on the amount of
compensation that a DPL holder can claim or on the size of
the operation that a DPL holder can undertake.

39. The Court then went much further acknowledging that
their decision, " [166] While the record before us sustains
this conclusion, it is conceivable that, as events unfold,
further serious barriers could emerge either to eligibility
or to reasonable access to a licit source of supply. Should
that happen, the issue of the appropriate remedy might have
to be revisited in a future case" (underline emphasis added
by the applicant)

40. These above paragraphs 19-20 make it patently clear that
the Hitzig et al Court exceeded the jurisdictional powers
imposed by Schacther v Canada (supra) and Re Manitoba
(supra).The Crown in Hitzig et al, (supra) submitted as
follows:

41. It can be also be properly advanced and it is submitted
that the failure of the Crown to comply fully with the Order
of the Hitzig et al, Court as regards removing the
limitation of the amount of compensation a DPL holder can
command as well as the size of the operation that a DPL
holder can undertake and for how many is fatal. The Crown's
failure to comply and to adhere to the Court's Order in
respect of the very constitutional infirmities found, two of
the five, resituates the MMAR as declared by Lederman (J),
unconstitutional and unknown to law as of July 10th 2003,
the whole being violation of Charter section 7, Justice
Carthy, of the Ontario Court of Appeal on June 25, 2003
having refused to grant the Crown application for a stay of
the decision of Lederman, (J).

42. As concerns CDSA s. 4, (the prohibition against
possession of marihuana), the question is whether a law that
has by final judgment been declared unconstitutional and of
no force and effect as of July 31 2001 can, on October 7th
2003 without any act of the Parliament, be re-constituted as
an offence known to law notwithstanding that that provision
for all purposes ceased to exist on July 31st 2001, Charter
section 1 and section 52 of the Constitution Act 1982, Re
Manitoba,and Schacter (supra). The applicant submits that
the CDSA s.4 (1) prohibition against "marihuana" the
substance, remained and is as previously declared
unconstitutional and of no force and effect.

43. The sole distinction between the judgment in Parker
(supra) CDSA s. 4 and that of Hitzig et al (supra) MMAR,, is
that the latter because of the pending appeal might appear
to have an air of legality which the applicant does not
admit, whilst Parker (supra) on the finality of judgment
principle was not subject to collateral, direct or in this
case indirect intrusion and interference with by the Court
of Appeal of Ontario through the bias of another independent
matter then before the Court. It can be said that in respect
to CDSA s.4 the Court put the wagon before the horse, their
act was premature in the sense that prior to speaking to
that section it was required that that section exist in law
and fact. A surgical intervention to remove the shoes from a
dead horse cannot give life to that animal or an adjacent.
The Hitzig et al Court failed to adhere to the Parker
judgment which unequivocally directed that only Parliament
could enact a statute that could correct the constitutional
infirmities that resulted in the declaration of
unconstitutionality. Parliament failed to do so within the
temporary period of validity and the declared inoperable
part at that point ceased to exist. It is submitted that the
Ontario Court of Appeal in Hitzig et al, (supra) usurped the
exclusive domain of Parliament and acted ultra vires its
statutory authority and prescribed powers its judgment was
in excess of jurisdiction and was a nullity and void.

It is now trite law to state that all of the above cited
judgements declare that the prohibition, (and I stress the
marihuana prohibition itself) has been declared
unconstitutional. Neither possession nor cultivation nor
trafficking in the substance cannabis (marihuana) in and of
itself is an offence known to law. Absent a prohibition
against the acts stated in paragraphs 1b, (supra) we are not
dealing with a crime or an offence known to law. Rex v. Nat
Bell Liquors Ltd., [1922] 2 W.W.R. 30, 128, 91 L.P.J.C. 146,
37 C.C.C. 129, 65 D.L.R. 1. Tab ___

The rule of law is that an act not prohibited is permitted.

The mere presence within the Schedules of the Controlled
Drug and Substances Act, of the substance cannabis
(marihuana) is not a crime; it is the prohibition that is
essential for criminality to attach. Nat Bell Liquors Ltd.
(supra)

The prohibition against marihuana having been declared
unconstitutional and of no force and effect, this
declaration in law cannot but encompass any would be offence
relative thereto. That is to say pretended offences such as
alleged against the applicant, which are rendered so by
reason of the judgments declaring the prohibition against
marihuana unconstitutional, are invalid and of no force and
effect, section 7 and 52 of the Constitution Act, 1982.

44. Question: If this Court does finds that the MMAR as
amended by the Hitzig Court of Appeal reinstates the
marihuana prohibition in the CDSA, it would be appreciated
if this Court could also explain how the police, the Crown,
or the Court could differentiate between a "medical"
marihuana user and a "recreational" marijuana user as per
Charter 15.

45. If this Court finds that the marihuana prohibition in
the CDSA are unknown to law as per Constitution Act, 1982
s.52, it would be appreciated if this Court would declare by
Order that the Federal laws in fact pertain to all provinces
as per Constitution Act, 1982 s.32. This would alleviate
much pressure on the Courts (and for Crown) in prosecuting
more marihuana charges in various parts of Canada. It would
also save the country millions of dollars in wasted court
expenses and valuable police resources. Should Revenue
Canada impose taxes on profits realized from eventual sales
of marihuana it would increase the country's revenue by
billions of dollars annually, and possibly some of that
revenue could be added to Provincial Health care budgets.

46. The charge in the instant matter is an unconstitutional
infringement of the applicant's rights and in conflict with
Charter s. 7. Even under the common law and common law
principles the power to read in, read down or suspend
declarations of ultra vires was circumscribed by the
necessity that there exist exceptional circumstances.
However, with the advent of the Charter and Constitution
Act, 1982 s. 52 it is abundantly clear, that Court
suspensions of declared unconstitutional statutes and
regulations found to be so because they violate charter s. 7
run afoul of s. 52. This is so by reason that such
suspensions would condone continued violations and
infringements of the Charter s. 7 Charter rights of
individuals contrary to the mandatory provisions of s.52 and
remove or nullify the remedial provisions of Charter s.24
(1). It is trite law to state that common law and principles
thereof that conflict with the Charter must be resolved in
conformity with the Charter and the clear mandate of s.52 of
the Constitution Act, 1982.

47. The applicant submits that in all of the circumstances
and in law, both statutory and constitutional the instant
charge is an unconstitutional infringement and denial of his
Charter section 7, rights.

PART V

ORDERS REQUESTED

48. An Order issued on the grounds that no valid law
prohibiting possession of the Schedule II substance
marihuana exists and that the present and any subsequent
proceedings relative to that substance must be dismissed as
an abuse of process; or an Order that the marihuana
prohibition in the CDSA has been ruled unconstitutional and
therefore the CDSA, as it pertains to marihuana, is null and
void;

AN Order that Marihuana, the substance itself being
Cannabis, contains the elements of Cannabis resin,
Cannabidiol, Cannabinol and Tetrahydrocannabinol;

AN Order that the Medical Marihuana Access Regulations are
unconstitutional and are therefore null and void;

AN Order that the Courts are bound by the mandate of
Constitution Act 1982, s. 52 (1), and lack constitutional or
statutory power to suspend declarations of
unconstitutionality of statutes, rules or regulations that
have been found to violate Charter rights;

AN Order that Courts cannot read in or read down statutes,
rules, or regulations that have by Interpretation Act s. 2
been repealed;

AN Order as per 684. (1) of the Criminal Code of Canada;

AN Order to return any grow equipment, and related
paraphernalia confiscated during a search of the premises of
the accused;

AN Order to return the value (to be negotiated) of the
plants or plant material confiscated and/or destroyed during
a search of the premises of the accused;

AN Order abridging the time for service, filing or hearing
of the application, or amending any defect as to form or
content of the application;

AN order that the applicant be granted her costs;

AND FOR any Order deemed just.
Dated this 2nd day of March 2005
At Courtenay, British Columbia
Applicant/Accused Signature

For the Applicant/Accused:
F.E. Noreen Evers
Black Creek, British Columbia
V9J 1G7
Tel:(250)337-5709

TO: Ministry of Justice
TO: The Registrar of the Court

SBC 2002 Chapter 48 -- Bill 54 [3rd Session, 37th Parliament]
BILL 46 -- 2002

ATTORNEY GENERAL
STATUTES AMENDMENT ACT, 2002

Provincial Court Act

13 Section 1 of the Provincial Court Act, R.S.B.C. 1996, c.
379, is amended by adding the following definitions:

"pension plan rules" mean the rules of the Public Service
Pension Plan;

"Public Service Pension Plan" means the Public Service
Pension Plan continued under the Public Service Pension Plan
Joint Trust Agreement;

"Public Service Pension Plan Joint Trust Agreement" means
the agreement established under section 18 of Schedule C of
the Public Sector Pension Plans Act.

14 Section 2 (4) is repealed.

15 The following section is added:

Exclusive jurisdiction of judge

2.1 In the Provincial Court of British Columbia, only a
judge may

(a) commit for contempt of court,

(b) hear a matter for which notice under section 8 of the
Constitutional Question Act is required,

(c) hear a matter that involves a determination of
aboriginal or treaty rights or claims,

(d) hear a matter arising under the Canadian Charter of
Rights and Freedoms for which notice under section 8 of the
Constitutional Question Act is not required, and

(e) preside over the trial of a person charged with an
offence for which, on conviction, the person is liable to be
sentenced to a term of imprisonment.

Mood: Hopefull at least one Bloc Member understands this
Listening to: Much More Music MJ re-enactment

The latest Senate Report says legalize cannabis (like tomatos)



Here are just a few selected quotes from Canada's Senators (penned after
spending years interviewing all the experts and studying all the historical
and scientific documentation that they could dig up,) which you can find in
the final report of the Senate Special Committee on Illegal Drugs.

"We were told that drugs were made criminal because they are dangerous.
Analysis of debates in Parliament and in media accounts clearly shows how
far this is from truth. When cannabis was introduced in the legislation on
narcotics in 1923, there was no debate, no justification, in fact many
members did not even know what cannabis was."

"Early drug legislation was largely based on a moral panic, racist sentiment
and a notorious absence of debate"

"In effect, the main social costs of cannabis are a result of public policy
choices, primarily its continued criminalization, while the consequences of
its use represent a small fraction of the social costs attributable to the
use of illegal drugs."

"The international drug control conventions are, at least with respect to
cannabis, an utterly irrational restraint that has nothing to do with
scientific or public health considerations."

"... if there was so much concern about public health based on how dangerous
"drugs" are, one has to wonder why tobacco and alcohol are not on the list
of controlled substances."

"When cannabis was included in the international conventions in 1925, there
was no knowledge of its effects"

"We should state this clearly once and for all, for public good: it is time
to stop this crusade."

The records of our own government's deliberations and its US-led
machinations within the UN shows that marijuana prohibition was a clear and
reprehensible fraud, and it still is. Probably the most expensive fraud
undertaken in all of human history.

Nevermind this "we must not encourage marijuana use" argument. No one is
encouraging it, and activists only want the freedom to decide for themselves
what they do with their bodies.

I submit that we first ought to address a far more important issue, and so
did several of our Senators:

We must not condemn, steal from, imprison and kill our citzens and knowingly
endanger our police, for the sake of what we all should know to be a
bald-faced lie. (thank you Mr. Muirhead)

roger m roeder kitchener ontario