All Federal Crowns' arguments are shown below to be invalidated
Note: this is just one part as I am trying to figure this blog thing out :)
>Date: Fri, 11 Mar 2005 03:00:17 -0800
>From:
wworld@island.net (Evers)
>Subject:
TURMEL: Crown's Factum in Drouin Krieger Quash!!!
>To:
MedPot-discuss@yahoogroups.com
Sorry
John - I really want to answer this. I go to court on
the 17th. How did I
do?? Noreen
----- Original Message -----
From: <
turmel@ncf.ca>
To: <
turmel@yahoogroups.com>
Sent:
Thursday, March 10, 2005 4:09 AM
Subject: TURMEL: Crown's Factum in Drouin
Krieger Quash!!!
> CR: 2. The Respondent notes that there is no
evidence
> before this court that the Applicant's production of
>
marihuana was intended to satisfy medical need.
N.E. This is not a
question of charter rights, this is a
question of law: Charter rights come
under a different
jurisdiction and complaint. What the applicant is
questioning, is not whether his charter rights was violated,
but whether
there is in fact a law to charge him with.
JCT: Right. Charter right is
argued right before his trial
in the step 5 constitutional motion a la
Parker/Krieger. And
best of all, Pierre will qualify for medical use. Just
like
Richard Johnson, he'll have his doctor's diagnosis of a
"marijuana-useful" illness when that time comes.
> CR: 3. The
Respondent's position is that, as a matter of
> fact and law, the
Applicant is wrong.
NE. Well, I disagree. Hence here we are in front of
the
judge.
JCT: Of course, the guys who oppose will disagree. Kind of
a
given. Har har.
> Marihuana has never been removed as a
controlled substance
> in the schedules that form part of the
CDSA.
NE. Very true. Marihuana has never been removed as a
controlled
substance in the schedules. If you look at the
CDSA you will still find it
in schedule II. The PROHIBITION
of marihuana is removed as per Parker
(OCA):
[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.
JCT: And how do you effect it's removal for all to
know? If
they refuse to amend the legislation, does that mean the old
legislation still rules. If they refuse to amend the
Criminal Code to
reflect Parker striking down S.4 and
Krieger striking down S.7, does it mean
Parker and Krieger
don't count until they finally can be persuaded to amend
the
legislation? Evidently not. This is a criminal omission
committed by
the Attorney General.
NE: In the CDSA, marihuana is only listed in the
schedules.
The schedules themselves, like the MMAR, do not have
penalties. It is the ACT itself which prescribes penalties.
The OCA
Parker court could not delete CDSA itself. That
would mean that EVERY drug
is legal, which they clearly did
not want to do. The OCA Parker court could
also NOT delete
marihuana from the schedules. They did not have the
authority to do that. It says very clearly in CDSA 60 who
may: (The
Governor in Council):
(CDSA) 60. The Governor in Council may, by order, amend
any
of Schedules I to VIII by adding to them or deleting from
them any
item or portion of an item, where the Governor in
Council deems the
amendment to be necessary in the public
interest.
It is pretty clear that
it was the PROHIBITION of possession
of marihuana that was the issue, both
then and now. H
Crown appears to forget that that which is not prohibited is
permitted. And if something is permitted, than how can one
infer an
illegal purpose? 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.
JCT: The issue is not
whether the Court could add "except
marijuana to the sections" or could
delete marijuana from
the schedule but whether marijuana is deleted if the
only
other alternative to reflect the striking down, actually
saying
"except marijuana" in the sections, was not done.
This is my argument in
my House of Commons bust to explain
why S.5(2) also dies due to the letter
of the law thesis.
There are only two ways to reflect the strike down:
1) amending the section so it's illegal to possess anything
on Schedule
2 "except marijuana" or
2) dropping marijuana from the list.
If they
didn't do 1), then 2) happens by default or
implication.
Of course, the
Doherty, Goudge, Simmons Court of Appeal say
those aren't the only two ways,
that there is a third way,
that judges will remember which sections in the
Criminal
Code really apply and which sections do not.
So though we can
accept that the Parker Court could not
order marijuana struck as opposed to
ordering the section be
amended, this does not mean that the ruling doesn't
have to
be reflected in one of the two ways.
>Further, the Court
of Appeal in R. v. Parker never did make
>a declaration pursuant to s.52
of the Constitution Act 1982
NE: Very true.
JCT: No, all
declarations striking down laws are pursuant to
s.52 of the Constitution
Act.
NE: What OCA said was that the marihuana prohibition was
against Parker's charter rights, which was his Section 7
charter rights
not his Section 52 charter rights.
JCT: There are not S.52 rights. S.52
defines the power to
strike down laws that are not consistent with the
Charter
right.
NE: (Maybe Pierre should bring a copy of the
constitution
with him to court so Crown can read it over). Section 7
reads:
7. Everyone has 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.
JCT: Okay, let's look at Section
52:
"Primacy of Constitution of Canada
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.
Constitution of Canada
(2) The
Constitution of Canada includes
(a) the Canada Act 1982, including this
Act;
(b) the Acts and orders referred to in the schedule; and
(c)
any amendment to any Act or order referred to in
paragraph (a) or (b).
JCT: The Canada Act includes the Charter. So when the Parker
Court
found that prohibitions on S.4 possession and S.7
cultivation of
anti-seizure epilepsy medicine were
unconstitutional violations of Parker's
Section 7 Charter
right, they then ruled they were striking down S.4
possession. It was pursuant to their power under Section 52
of the
Constitution Act that they can say that a law which
is inconsistent with the
provisions of the Constitution is,
to the extent of the inconsistency, of no
force or effect.
So their power to strike down the law comes from the
Constitution Act and the standard of constitutionality to be
met comes
from the Charter. So I really don't know what that
Crown means when they say
the court didn't strike down S.4
under the power of the Constitution Act. Of
course it had
to.
NE: What OCA said was that the marihuana
prohibition was
against Parker's charter rights, which was his Section 7
charter rights not his Section 52 charter rights.
JCT: Section 52
doesn't deal with any rights. It deals with
the power to strike down laws
that are inconsistent with the
Charter.
NE: (Maybe Pierre should
bring a copy of the constitution
with him to court so Crown can read it
over).
JCT: I never saw the need to explain to judges that courts
have the power to strike down laws under the Constitution
Act when they
know courts have the power to strike down
laws. They should already know
where they get it from. I
don't spend time proving the obvious. No one's
saying the
court's can't strike down the law. So why bring proof they
can? I've never seen the need to make the point that the
courts have the
power to strike they know they have. But
again, I think the answer is that
the Parker Court did
strike down the s.4 prohibition pursuant to their power
under the Constitution Act. Where else does it say laws may
be struck as
inconsistent with the Constitution but in the
Constitution?
>
that either the production or possession for the purpose
> of trafficking
law was "of no force and effect";
NE: Very true. They said the
prohibition on the cultivation
and possession of marihuana is
unconstitutional.(at para
10): Para 10 of Parker (OCA) effectively addresses
Crown's
entire para 3:
[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.
JCT: No, at this stage, he's talking about the purpose of
trafficking law not having been struck down. The only
arguments are
"spirit and letter" of the law to include
other statutes dependent on the
ones being struck. If S.4
can be struck by implication of S.7 being struck,
as David
Frankel explains, then S.5 can be struck by "letter and
spirit
of the law" implications too. You didn't deal with
the Purpose of
Trafficking issue he really raised.
NE. Judge Acton at Krieger said the
very same thing:
JCT: I think you forgot to include her quote but I
believe
you.
> in light of that Court's subsequent decision in
Hitzig et
> al, v. The Queen and the Supreme Court's decisions in R.
> v. Malmo-Levine and R. v. Clay, there is no basis for this
>
Court to make such an order. The application should be
>
dismissed.
NE. You will explain yourself please.
JCT: Don't bet on
the Crown doing a good job.
> B. ARGUMENT
> 4. The Applicant
sets out a number of grounds that he
> maintains supports his application
for an order quashing
> all charges relating to marihuana under the CDSA
as
> unknown to law, starting with the decision of the Ontario
>
Court of Appeal in R. v. Parker, 2000. However, as
> previously stated,
marihuana has never been removed as a
> controlled substance in the
schedules that form part of
> the CDSA
NE: This has been dealt
with. See above.
JCT: We have to keep repeating that its not being
removed is
a crime by the Attorney General's office. Every time they
point out the law has not been amended, we charge them with
their
ultimate crime. Reflex. Every time you hear: "It's not
been changed," you
answer "Why not?" They admit they didn't
remove it after it had been struck
down. This is your judo
move where you turn their statement against them.
Yes, it
was not removed when it was struck down. It should have
been.
Why not?
> and case law has always supported the contention that all
> offence provisions in respect of marijuana, such as
> production
of marijuana, trafficking in marihuana,
> possession of marijuana for
the purpose of trafficking
> and importing of marihuana remain in full
force and effect
NE: Well, I certainly can't agree with you more. That's
definitely the problem. It's been "case law" that has been
the problem.
Cases like the Nielsens, the Johnsons, Stavert,
etc. I am sincerely hoping
that this judge doesn't follow
judicial comity in this case and do the same
thing. Two (or
more) wrongs don't make a right. As per when not to follow
judicial comity:
22. Judicial Comity is not to be followed:
In Re:
Hansard Spruce Mills Ltd. (1954), 4 DLR 590 (BCSC).
Tab ____ Wilson J. sets
out the situations in which it is
permissible to depart from the
requirements of judicial
comity. Those situations are described as
follows:
a. Subsequent decisions have affected the validity of the
impugned judgment;
b. It is demonstrated that some binding authority in
case
law or some relevant statute was not considered;
c. the judgment was
unconsidered, a nisi prius judgment
given in circumstances familiar to all
trial judges, where
the exigencies of the trial require an immediate
decision
without opportunity to fully consult authority.
JCT: And of
course, these are the subsidiary dependent laws
which fall to the letter and
spirit of the law arguments.
> 5. The Applicant's argument is
grounded on the fundamental
> misunderstanding of the effect of the Court
of Appeal's
> order in Parker.
NE. ?????????????????? I think it
might be the other way
around.
JCT: Those are the words of my Court
of Appeal where I
argued the letter of the law argument.
> In
Parker, the Court of Appeal determined that the
> prohibition against
simple possession of marihuana
> in the CDSA was overly broad,
NE.
See para 10 (above) I have also concluded that the
prohibition on the
cultivation and possession of marihuana
is unconstitutional.
Unconstitutional doesn't mean "overly
broad". Unconstitutional means 'an
infringement of the
constitution. Maybe you could explain what overly broad
means. I believe that overly means 'large' or even 'extra
large', and
broad means 'wide'. Sometimes 'broad' is a nasty
term for a woman, but in
the context Crown is using I would
take it to mean 'wide'. So Crown is
saying:
"In Parker, the Court of Appeal determined that the
prohibition
against simple possession of marihuana in the
CDSA was extra large
wide."
I think the Court of Appeal really meant to say exactly what
they
did: that the prohibition against possession of
marihuana in the CDSA was
"an infringement of the
constitution."
Also, Crown infers "simple"
possession. Here is where the
OCA says "simple": "simple" screening
device:
[143] In the companion case of R. v. Clay, I have reviewed
at
greater length the state's objectives in prohibiting
marihuana. First, the
state has an interest in protecting
against the harmful effects of use of
that drug. Those
include bronchial pulmonary harm to humans; psychomotor
impairment from marihuana use leading to a risk of
automobile accidents
and no simple screening device for
detection; possible precipitation of
relapse in persons with
schizophrenia; possible negative effects on immune
system;
possible long-term negative cognitive effects in children
whose
mothers used marihuana while pregnant; possible long-
term negative cognitive
effects in long-term users; and some
evidence that some heavy users may
develop a dependency. The
other objectives are: to satisfy Canada's
international
treaty obligations and to control the domestic and
international trade in illicit drugs. It remains to consider
whether the
deprivation of Parker's rights to liberty and
security of the person enhance
these objectives.
At para 203, the Court agrees with the Crown that
"simple"
possession of marihuana must be struck down, but then the
Court
explains why they don't strike down "simple"
possession:
[203] I do not
necessarily accept that all of these problems
necessarily flow from the
remedy chosen by the trial
judge.21 I do accept, however, that the Crown has
raised
matters of sufficient complexity that reading in is not an
appropriate remedy. For these reasons, I agree with the
Crown that the
prohibition on simple possession of marihuana
in s. 4 of the Controlled
Drugs and Substances Act must be
struck down.
[204] I point out,
however, that this is not a case like
Rodriguez where creating an exception
might frustrate the
purpose of the legislation because adequate guidelines
to
control abuse are difficult or impossible to develop.
Rather,
refusing to read in an exemption demonstrates a
recognition of and respect
for the different roles of the
legislature and the courts. There is, in my
view, no
question that a medical exemption with adequate guidelines
is
possible. The fact that such exemptions exist in some
states in the United
States is testament to that. However,
there are many options to consider and
this is a matter
within the legislative sphere. There is also a particular
problem in the case of marihuana because of a lack of a
legal source for
the drug. This raises issues that can only
be adequately addressed by
Parliament.
There are no other references in Parker for "simple".
You
also might want to check out the order itself. It
states:
"declaring the
marihuana prohibition in s. 4 of the CDSA to
be invalid". It doesn't say
"simple possession".
Section 4 is possession. See Nat Bell again. That
which is
not prohibited is permitted. If you are allowed to possess,
how
can one impute an improper purpose?
JCT: That's Ontario Provincial Judge
Earle-Renton's "spirit
of the law" argument. It's worth quoting her.
> as the legislative scheme failed to provide an exemption
>
for medical use. The constitutional validity of the
> offence of
possession of marijuana for the purpose of
> trafficking in s.5(2) of the
CDSA, was not before the
> Court of Appeal in Parker nor was the
constitutional
> validity of the offence of production of marijuana in
> s.7(1) of the CDSA.
NE: Very true.
JCT: Of course, the
S.5(2) wasn't before the Parker Court.
It was before the Turmel Court now on
appeal. As for Section
7(1), by the implication that the Crown didn't appeal
their
weaker cultivation loss in Parker, Parker's win of the
possession,
by implication, implies Parker's win of the
cultivation too. They they
couldn't win the appeal they
chose to fight, how could they win the appeal
they chose not
to fight. That's why Acton went that route 6 months later.
Actually, this is the first time I've brought the
implication of the
Crown's not appealing the Sheppard ruling
on S.7 into argument!
NE:
The Crown only appealed the possession charge. Why?
Because of Nat Bell.
JCT: Who's Nat Bell?
NE: That which is not prohibited is
permitted. Cultivation
was not appealed because at Para 208 of Parker the
OCA court
says:
[208] I do not accept the submissions of the intervener
that
the appropriate remedy is a constitutional exemption for
persons
requiring marihuana for medical purposes. In
Corbiere at p. 225, the court
held that the remedy of a
constitutional exemption has only been recognized
in a very
limited way, "to protect the interests of a party who has
succeeded in having a legislative provision declared
unconstitutional,
where the declaration of invalidity has
been suspended".22 Thus, Parker is
entitled to a
constitutional exemption from the possession offence under
the Controlled Drugs and Substances Act during the period of
the
suspended invalidity for possession of marihuana for his
medical needs. I
have also made it clear in these reasons
that if the cultivation offence
under that Act were before
this court, I would have held that provision to
be invalid.
I expect that the authorities would not subject Parker to
further prosecution under that section in view of these
reasons.
JCT: So we argue that the Crown's failure to appeal the
Parker's cultivation win is an implication that they would
have lost had
they appealed and the judge's decision saying
they would have lost had they
appealed makes the point that
cultivation went down with possession on Terry
Parker Day.
Anyway, what the Parker Court said regarding s.7 which
wasn't on the docket isn't as important as what the Krieger
court said
about the Section 7 charge which was on the
docket.
> 6. In the judgment of R. v. Parker, the Court makes it
> plain that
it was not declaring the cultivation offence
> invalid.
NE. Why
would they? It wasn't before them.
JCT: But they wanted to and, by
implication of their
decision on S.4, they did.
> 7. In R. v.
Parker, the accused's home was searched on two
> separate occasions. As a
result of the initial search, he
> was charged with the offence of
cultivation of marihuana
> under the then Narcotic Control Act. After the
repeal of
> the NCA, his home was searched again, resulting in a
>
charge of possession of marihuana under s.4 of the CDSA.
> The accused,
who claimed a need to use marihuana for
> medical purposes, argued that
the provisions under which
> he was charged were
unconstitutional.
NE. True
JCT: No it's not true that Parker did
not face Section 7.
From the
http://www.cyberclass.net/turmel/timeline.htm
>Dec 10 1997
>ONTARIO JUDGE SHEPPARD STAYS PARKER
CHARGES
"...It is ordered pursuant to Section 52, that Section 4(1)
and
Section 7(1) 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."
JCT: Sheppard dealt with a
finding on a S.7 charge and ruled
that sick people have exemption against
both S.4 and S.7.
The Crown's story's a crock to avoid seeing S.7 on
Sheppard's docket. It was. That's the answer to the claim
Sheppard did
not deal with Section 7. His own words.
> 8. On July 31 2000, the
Court, per Rosenberg, J.A., held
> in favour of Parker and ruled that
blanket prohibitions on
> the possession and cultivation of marihuana,
absent an
> exemption for medical use, were unconstitutional.
JCT: By the way, whenever you hear the word "absent an
exemption for
medical use" is the time to mention the
Canadian AIDS Society says
reattaching the 2 struck down
unconstitutional conditions again made the
exemption absent
again on Dec 03 2003. Reflex. "Absent an exemption" elicits
"By the way, it's absent again."
> Rosenberg, J.A. declared that
the marihuana prohibition in
> s.4 of the CDSA was invalid, but suspended
the declaration
> for a period of one year.
NE. True. I always
wondered how they can justify a
suspension of a right to life?
JCT:
Right. Their big mistake. But at least the Crown admits
that they declared
cultivation unconstitutional too even if
they only struck down S.4 overtly.
And S.7 by implication of
the Crown's failure to appeal.
> Since
the NCA had been repealed, Rosenberg, J.A.
> determined there was no need
to declare the cultivation
> provision in that Act
unconstitutional.
NE. I am not sure about that. Cultivation was not
before the
court. See your para below:
JCT: No, that's not the
reason the Sheppard ruling on
Section 7(1) wasn't before the court. It
wasn't that the old
law had been repealed at all since Sheppard ruled on the
new law. It was only that the Crown had not appealed the
Sheppard ruling
on Section 7. The Crown gave up on Section 7
is the only reason it wasn't
there for them to lose on it
with Section 4. So, does their ducking the
Parker's Section
7 win mean he doesn't win because the Court of Appeal
couldn't back Sheppard up on 7 like they did on 4? Of course
not.
Section 7 is gone by implication of the Crown's non-
appealed defeat. Keeping
it quiet can't work to stall it
forever.
> Rosenberg J.A.
also
> recognized that, since the production offence in the CDSA
>
was not before the Court, it was not appropriate to issue a
> declaration
of invalidity in respect of that provision.
NE. (Only because it wasn't
before the Court)
JCT: But he didn't have to because Parker had already
won it
from Sheppard uncontested! Don't let them ignore the
Sheppard S.7
win which they never challenged.
> Rosenberg J.A. made it plain at
least three times in his
> judgment that the Court was not declaring the
cultivation
> offence in the CDSA invalid:
NE. (Only because it
wasn't before the Court)
JCT: Too bad he didn't mention he didn't have to
strike it
down because Sheppard had proffered the remedy. Does Parker
not get his remedy of right to cultivate because the Crown
did not
appeal his win? So by implication of Sheppard's
uncontested ruling on S.7,
Parker deserved remedies against
both S.4 and S.7 and nowhere was his remedy
against S.7
overturned even if his remedy against Section 4 was change,
and by implication, his remedy against section 7 was also
changed in the
same way. Time to play Sheppard more strongly
though Krieger wins alone.
> [11]..If necessary, I would have found that Parker was
>
entitled to a personal exemption from the cultivation
> offence for his
medical needs.
NE. It wasn't necessary because it wasn't before the
Court.
JCT: It leads to the implication that Section 7 still needs
to
be struck when it has by implication of Parker's
victorious remedy against
Section 7 never being overturned.
What else can the Sheppard ruling on
Section 7 mean since it
was never overturned but that if the Crown were to
appeal,
the Court would strike it down like it says it would.
>
[...
> [153] I am also of the view that, subject to the
>
availability of a s. 56 exemption, Parker has established
> that the
similar prohibition on possession and cultivation
> of marihuana in the
Controlled Drugs and Substances Act
> violates his rights under s.7 of the
Charter. Again, since,
> strictly speaking, the possession offence is the
only
> provision at issue under that Act, it is unnecessary to
>
consider the validity of the cultivation offence. Before
> turning to s.
56, it will be convenient to deal with other
> principles of fundamental
justice.
NE. Same
JCT: But since the mentions 3 instances of the
Court of
Appeal not supporting Parker's remedy against Section 7,
we're
stuck with Sheppard's remedy of automatic exemptions
for sick people for
cultivation that was never overturned.
> [...
> [190] To
conclude, in my view, Parker has established that
> the prohibition on
possession of marihuana in the
> Controlled Drugs and Substances Act has
deprived Parker of
> his right to security of the person and right to
liberty
> in a manner that does not accord with the principles of
> fundamental justice. Since Parker was not charged with the
>
cultivation offence, that offence is not expressly before
> this court.
However, it is apparent from these reasons and
> the reasons dealing with
the cultivation offence under the
> Narcotic Control Act that if the
cultivation provision had
> been before this court, I would hold that it
too infringes
> Parker's s. 7 rights. Since there is no legal source of
> supply of marihuana, Parker's only practical way of
> obtaining
marihuana for his medical needs is to cultivate
> it. In this way, he
avoids having to interact with the
> illicit market and can provide some
quality control.
>
> 9. The most that can be said about the Parker
decision is
> that if it had been necessary to declare the production /
> cultivation offence unconstitutional in order to provide a
>
remedy to a person (like Mr. Parker) who had established a
> medical need
to cultivate, it would have done so.
JCT: It didn't have to since the
Sheppard decision on
cultivation was not appealed. Over and over, the Crown
keeps
pointing out that the Court didn't strike down Section 7 and
we
can keep pointing out they didn't have to because
Sheppard's remedy on
Section 7 had not been appealed.
> 10. If should be noted as well
that on the same day that
> the Court of Appeal Parker, it denied any
remedy flowing
> from its order in Parker to the Appellant Clay. Mr. Clay
> had been convicted of possession of marihuana, and
> possession
of marihuana for the purpose of trafficking.
> Like the Applicant in this
case, he adduced no evidence
> of his medical need for marihuana. Clay's
subsequent
> appeal to the Supreme Court was dismissed on Dec. 23 2003.
JCT: It's funny that they keep noting how recreational use
was not
sufficient to beat the government's fundamental
concern about possibly
unsafe substances but acknowledge
that medical use is strong enough.
What they won't admit is that when the law was repealed, it
was repealed
for everyone, not just the sick who were
threatened. So, since it was struck
down by the sick for the
sick, it doesn't apply to the non-sick.
The
point is that Pierre hasn't introduced medical need
because it's not yet
time. First, is the law repealed for
everyone and if not, then he'll explain
his medical need.
> CR: 11. The crux of the holding in R. v. Parker
was that
> the "possession" law was constitutionally defective in
> that it failed to provide a medical exemption to those who
>
established medical need.
JCT: "constitutionally defective" is a weaker
way of saying
unconstitutional?
> CR: Since that order was made,
a constitutionally valid
> scheme has come into effect through the
federal
> government's enactment of the Marihuana Medical Access
>
Regulations (MMAR)
JCT: He seems to forget that the MMAR was declared
invalid
by Lederman, Rogin and the Court of Appeal by Aug. 1 2001.
> and the corrective constitutional surgery performed on
>
those regulations by the Court of Appeal in Hitzig et al
> v. The Queen.
JCT: The Court's corrective surgery to resurrect the law.
Two years
after it had died. Two years to late. This is the
issue in the second Turmel
appeal that the Crown falls
frivolous. Isn't it funny that they keep citing
the
decisions whose appeals they keep calling frivolous. They're
the
most important cards they've got and they keep calling
challenges to them
frivolous?
> 12. Furthermore, the Supreme Court has not determined in
> R. v. Clay and R. v. Malmo-Levine that the possession law
>
infringes no constitutional right of any person who uses
> marihuana for
non-medical purposes.
JCT: Which does not mean the law is alive. Only
they have
the power to make such law alive. And it doesn't it does not
infringe on those who used it for medical purposes. Again,
back to
trying to restrict the striking down of the law to
only the sick.
> 13. There is thus no basis in law for this Court to make
>
any order pursuant to s.52 of the Constitution Act, 1982,
> in respect of
the production/cultivation law, the law
> which the Applicant must answer
to.
JCT: Luckily, we're not asking for any such order. Parker
and
Krieger did. We're just asking that they obey it. Even
judges can't get this
concept right. Witness Judge Bedard in
Quebec who keeps insisting Gravel is
trying to declare the
law unconstitutional and have it removed from the
Criminal
Code. Again, Parker and Krieger did that, declare it
unconstitutional so it should have been removed from the
Criminal Code.
Gravel's just complaining that they haven't
removed it with no case as to
why it was ordered removed.
> That law has at all times been in
force, and the Applicant
> has suggested no new argument that would call
its
> constitutionality into question.
JCT: That law has at all
times been enforced but not in
force. So again, for Crowns and judges alike,
one more time,
we're not trying to prove it's unconstitutionally bad, we're
trying to prove it's now officially dead.
> 14. The most that can
be perhaps said for the Applicant's
> position is that, in view of the
comments of the Court of
> Appeal on the production/cultivation law in
Parker, he
> ought not have been charged on June 11 2003 because of
> uncertainty in the law. Such an argument would, however,
>
ignore the facts that:
JCT: He ought not be charged because of the
non-existence of
the law, not the uncertainty. Sure, the Parker invalidation
of Section 7 by Sheppard was never supported at the highest
court in
Ontario but the Krieger invalidation of Section 7
by Acton sure was
supported by the highest court in Alberta.
> a) there was no true
uncertainty on that date, since the
> government had taken the actions it
felt warranted to
> respond to the Parker decision;
JCT: Which
were later ruled to have failed. They keep
arguing that the fact they're
fixed late makes it okay.
> b) the police would have no reason to
suspect that the
> marihuana was being grown for a medical purpose.
> In such circumstances, this is hardly the "clearest of
> cases"
that would warrant the imposition of a stay of
> proceedings.
JCT: So far, it's always how Parker's S.4 ruling affects
Drouin's
S.7 charge. Wait till we see how they handle the
Krieger S.7 ruling for
Drouin's S.7 charge.
> 15. In the Ontario Court of Appeal decision in
R. v.
> Turmel, John Turmel made a similar argument regarding a
>
declaration of invalidity pertaining to the quashing of
> all charges
related to marihuana under the CDSA as
> unknown to law and in that
case, the Court of Appeal
> found that the Appellant's arguments were
misconceived and
> explained that its declaration of invalidity did not
> delete marijuana as controlled substance in Schedule II.
> The
Court of Appeal was correct in reaching this
> conclusion. As the Court
aptly noted, pursuant to s.52(1)
> of the Constitution Act, the court
only had jurisdiction
> to declare the prohibition against marijuana
> unconstitutional to the extent of its inconsistency with
> the
Constitution. Since the constitutional issue in
> Parker was restricted
to possession of marihuana for
> medical purposes, and not for the
purpose of trafficking,
> the declaration of invalidity was restricted to
the
> prohibition against marijuana only in relation to the
>
offence of simple possession under the CDSA. All other
> offence
provisions in respect to marihuana, such as
> production of marihuana,
trafficking in marihuana,
> possession of marihuana for the purpose of
trafficking,
> and importing marihuana, remained in full force and
> effect.
JCT: That's what the court said. But it's being
appealed.
> 16. In the Quebec Court of Appeal Raymond Turmel
decision
> wherein 5(2) of the CDSA was upheld, the Quebec Court of
> Appeal stated:
> [11] The appellant in that case had argued,
like the
> appellant in this case, that following the order issued by
> the Ontario Court of Appeal in R. v. Parker [2000] declaring
>
the marihuana prohibition in section 4 of the Act (simple
> possession)
to be invalid, marihuana was removed from
> Schedule II of the Act for
all purposes, including
> possession for the purpose of trafficking.
JCT: Have to stress "removed by implication."
NE: uct; like
possession of ice cream. It doesn't say an ice
cream cone, or an ice cream
bucket or a truck filled with
ice cream or a factory that makes ice cream
and is filled
with ice cream and sells ice cream. It just says "ice
cream", like meaning the stuff you eat that doesn't have
real cream in
it anymore, it's really cold and tastes great
with strawberries. Section 4
of the CDSA does not specify
any amount, it only speaks of possession of a
product.
JCT: It is incredible how the media could make up the 30
gram limit and repeat it endlessly without it having any
basis at all in
the legislation.
> [12] The Ontario Court of Appeal decided that this
> argument was based on a fundamental misconception:
> <<6
The declaration of invalidity made by this court in
> Parker does not
delete marihuana from Schedule II of the
> CDSA.
NE. It couldn't.
Only the Governor in Council may.
JCT: That's not the answer. If they do
not amend the
legislation to say it's illegal to possess any substance on
"Schedule 2 except marijuana," how else can the change be
effected? It's
only when you point out that alternative 1,
amend the legislation, is not
done that you can then argue
it's off the list by the letter of the law
requirement. They
had to reflect the change and by doing nothing, only
deletion, not addition, could take place by implication.
> It
simply declares that the reference to marihuana in
> Schedule II is of no
force and effect for the purposes of
> the possession charge in s.4 of the
CDSA.
NE. So, you are saying that the possession charge has no
force
and effect. That is my point too. It is legal to
possess. If I want to grow
it, I still possess it. If I want
to sell it, someone else can possess
it.
JCT: Just because it's legal for you to possess heroin
doesn't
make it, by implication, legal to produce heroin.
But if it's legal for you
to produce heroin, then, by
implication, it's legal to possess what you
produce. So, the
implication works only one way, a la Frankel.
>
The declaration does not extend to any other section of
> the CDSA. In
particular, it does not diminish the effect
> of the listing marihuana in
Schedule II for the purposes
> of s.5(2) of the CDSA.>>
NE.
We have been through this before. I think this must be a
lady Crown. My
husband and son both say women keep repeating
themselves.
JCT: And
the answer is that it is only true that marijuana
would not come off the
list if some other amendment
reflected the court's invalidation. With no
other way, then
coming off the list is the only alternative left no matter
how much the courts may think there's some magic third way
they can't
explain.
> [13] The Ontario Court of Appeal's declaration of
>
invalidity did not extend to any other section of the Act
> such as
section 5 or 7;
NE. I tend to disagree with you.
JCT: If the
letter of the law applied and the change had to
be effected, the only way it
could be effected without overt
addition of "except marijuana" by the the
government was by
erasure from the list. Always ask how the invalidation was
effected if not off the list.
> [14] Consequently, this Court
concludes that sub-section
> 7(1)(2)(b) of the Act prohibiting production
of marihuana
> for the purpose of trafficking do not infringe the
>
Canadian Charter of Rights and Freedoms, and more
> specifically section
7 of the Charter.
NE: Right. They infringe s. 52 of the Constitution Act,
1982. The Constitution Act includes the Charter. The
Charter doesn't
include the Constitution Act.
JCT: No, it's the Charter right that must
be infringed so
the S.52 power in the constitution act to strike down the
law applies.
> 17. In R. v. Krieger, a decision of the Alberta
Court of
> Queen's Bench, a declaration of invalidity was made in
>
relation to the production offence and suspended by the
> trial judge for
a period of one year. The declaration of
> invalidity was, however,
suspended by the Alberta Court of
> Appeal indefinitely. Even in Alberta,
notwithstanding the
> declaration of invalidity, the offence remains one
that is
> in full force and effect.
NE. I think you better read
the Order. It was until further
order of the court. And the Alberta Court of
Appeal revoked
it.
JCT: Actually, it's funny hearing another Queen's
Counsel
say that a stay on Krieger's victory issued below remains
valid
after final rulings by the Court to Appeal and the
Supreme Court of Canada
above. Just think, their only reason
for busting 100,000 Canadians is that
they thought the lowly
O'Leary Order superseded the Supreme Court of
Canada's final
decision and had to still be removed.
> 18. With
respect to the request for an Order staying the
> charges until the
Supreme Court of Canada has decided
> whether or not to grant leave in
Turmel v. HMTQ #30570
> (Hitzig) and R. v. Turmel #30571 and, if leave is
granted,
> the final determination of the matters by the Supreme
>
Court of Canada, it is the Applicant's position that in
> both cases,
Her Majesty The Queen has responded to the
> Applications and is opposing
leave to appeal. It is
> Respondent's position that neither of these
applications
> for leave to appeal have any merit and are frivolous at
> best and do not warrant a stay of these proceedings.
JCT:
Appeal #30571 is the appeal against the R. v. Turmel 7-
pound S.5(2) House of
Commons bust which they cited earlier
and which has been added to the
Criminal Code of Canada. A
decision so important that they have to cite it
here and in
the Criminal Code and they claim that an appeal against it
is frivolous as their only argument!
>SCHEDULE - AUTHORITIES TO
BE CITED
>R. v. Parker
>R. v. Clay
>Hitzig v. Canada
>R. v. Malmo-Levine, R. v. Caine
>R. v. Krieger (2000)
>R.
v. Turmel (2003) Ont.C.A.
>R. v. Turmel (2005) Que.C.A.
JCT: So we
put in all the key decisions and they added the
fillers.
App.1: 2000
Jul 31 Parker Ont.C.A. Order on CDSA S.4....(A1)
They added the R. v. Parker
and R. v. Clay reasons
App.2: 2002 Dec 04 Krieger Ab.C.A. Memorandum on
S.7....(A2)
They added the Acton decision in R. v. Krieger (2000)
App.3: 2002 Dec 05 Calgary Herald Krieger article.......(A6)
App.4:
2002 Dec 05 Calgary Sun Krieger article..........(A7)
App.5: 2003 May 14
Turmel holds back marijuana bill.....(A8)
App.6: 2003 May 16 S. David Frankel
culpability clause..(A9)
App.7: 2003 Oct 07 Hitzig Ont.C.A. Order for MMAR
fix..(A10)
They added the Hitzig v. Canada reasons
App.8: 2003 Oct 07
Turmel Ont.C.A. Order for Parker Day(A12)
They added the R. v. Turmel (2003)
Ont.C.A. ruling on S.5(2)
App.9: 2003 Dec 08 Turmel stays 4000 since
Parker Day..(A14)
App.10: 2003 Dec 23 Krieger Supreme Court
Order........(A15)
App.11: 2004 Apr 01 Turmel to A.G. for 100,000
more....(A17)
App.12: 2004 Nov 22 AIDS Soc. decries exemption
absence(A18)
They added R. v. Ray Turmel (2005) Que.C.A. and R. v.
Malmo-
Levine, R. v. Caine
So it's a pretty complete record.
roger m roeder
n
b-tr
s
v)
