Part 1 Noreen Evers
JCT: Noreen is in British Columbia Provincial Court to quash
her marihuana cultivation charges based on Krieger, every
other case she could find including the kitchen sink.
(Very old saying)
>Date: Fri, 11 Mar 2005 23:00:33 -0800
>From: wworld@island.net (Evers)
>Subject: Re: TURMEL: Crown Factum in Drouin's Krieger Quash
>To: MedPot-discuss@yahoogroups.com
John - where would I find this?
>JCT: That's Ontario Provincial Judge Earle-Renton's "spirit
of the law" argument. It's worth quoting her.
JCT: I don't have the transcript of my hearing before her.
But I know it's there. She acted like it was a given. So
treat it like a given but cite her and if you ever need
proof, it's there.
> NE: The Crown only appealed the possession charge. Why?
> Because of Nat Bell.
> JCT: Who's Nat Bell?
NE: 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.
A 1922 case in the Dominion Law Report. Essentially, Nat
Bell Liquors was charged with selling liquor (which was not
prohibited). Never been overruled.
JCT: I guess it's useful to have a case that says it's not
illegal to sell something that's not prohibited but I'd
again assume it's a given.
I think the some of the later Charter of rights were done
based on this case. especially concerning evidence. If
there is no evidence (because it's legal (not prohibited) or
unlawfully obtained), the Court has to throw it out. Noreen
JCT: Okay.
>Date: Fri, 11 Mar 2005 23:16:47 -0800
>From: wworld@island.net (Evers)
>Subject: TURMEL: #B Crown Factum in Drouin's Krieger Quash
>To: MedPot-discuss@yahoogroups.com
> JCT: No it's not true that Parker did not face Section 7.
>>From the http://www.cyberclass.net/turmel/timeline.htm
I know John, but it IS true the S. 7 charge was NOT before
the OCA. (Only Sheppard - who ruled it unconstitutional
THEN. So really, cultivation has been legal since SHEPPARD -
10 Dec 1997).
JCT: For sick people, for sure. For everyone else, Terry
Parker Day for sure!
>Date: Mon, 14 Mar 2005 00:05:52 -0800
>From: wworld@island.net (Evers)
>Subject: The lid comes off the pot- it's a question of LAW.
>To: echo@mars.ark.com (Comox Valley Echo),
>newsroom@langleytimes.com, sunnewstips@png.canwest.com,
>newsdesk@lfpress.com, MedPot-discuss@yahoogroups.com,
>cvredit@vinewsgroup.com
Cannabis has been legal in Canada for quite some time now.
This case will be argued in Courtenay, BC Provincial Court
on March 17, 2005. Notice under the Constitutional Question
act has been given to the Attorney General of British
Columbia and the Attorney General of Canada. Results are to
be published in the BC Gazette. The unconstitutionality goes
back to the time the CDSA was enacted ,1996, and so all
records of persons convicted for ANY cannabis offences
should be purged:
Court File No. 32837-1
Courtenay Registry
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
BETWEEN:
Fern Edith Noreen EVERS
APPLICANT/ACCUSED
AND:
Her Majesty the Queen
RESPONDENT/PLAINTIFF
------------------------------------------------
RECORD OF APPLICATION TO QUASH AS UNKNOWN TO LAW
Pursuant to Section 601(1) of the Criminal Code
APPLICANT'S FACTUM IN SUPPORT OF NOTICE OF APPLICATION AND
CONSTITUTIONAL ISSUE
Pursuant to the provisions of Charter of Rights and Freedoms
s.7, 8, 9, 11, 15, 24, 32 and 52 and the Constitution Act,
1982
------------------------------------------------
PART I
STATEMENT OF THE CASE:
1. The applicant Fern Edith Noreen Evers, was arrested on 14
May 2004 in the District of Black Creek, within the
territorial jurisdiction of this Court. The charges against
the applicant are production of controlled substance CDSA s.
7(1) and production for the purpose of trafficking in
controlled substance CDSA s. 5(2).
2. The applicant released upon her own recognizance appeared
for arraignment Court at the Court House at Courtenay on the
25 November 2004.
3. That upon arraignment on 25 November 2004 the matter was
adjourned until 9 December 2004.
4. That on 9 December 2004, the matter was adjourned until
17 March 2005.
PART II
SUMMARY OF THE FACTS:
5. That the relevant facts in the matter at Bar at this time
consist solely of the Information filed, secondly the
pretended and purported charges that are alleged within the
said Information # 32837. Thirdly, the fact that tash fails,
I am of the belief that, should I wish to do so, I may
attempt a Charter challenge at a later date. Should the
Court find within this evidence, that any of my Charter
rights have been breached it is free to declare the same.
THE GROUNDS ARE: (all emphasis mine)
7. The Court may not amend the schedules: Controlled Drugs
and Substances Act (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.
The schedules to the CDSA, pertaining to marihuana include:
SCHEDULE II
(Sections 2, 3, 4 to 7, 10, 29, 55 and 60)
1. Cannabis, its preparations, derivatives and similar
synthetic preparations, including:
(1) Cannabis resin
(2) Cannabis (marihuana)
(3) Cannabidiol (2--[3--methyl--6--(1--methylethenyl) --2--
cyclohexen--1--yl]--5--pentyl--1,3--benzenediol)
(4) Cannabinol (3--n--amyl--6,6,9--trimethyl--6--
dibenzopyran --1--ol)
(5) Nabilone ((=C2=B1)--trans--3--(1,1--dimethylheptyl)--
6,6a, 7,8,10,10a--hexahydro--1--hydroxy--6,6--dimethyl --9H-
-dibenzo[b,d]pyran--9--one)
(6) Pyrahexyl (3--n--hexyl--6,6,9--trimethyl--7,8,9, 10--
tetrahydro--6--dibenzopyran--1--ol)
(7) Tetrahydrocannabinol (tetrahydro--6,6,9--trimethyl--3 --
pentyl--6H--dibenzo[b,d]pyran--1--ol)
(7.1) 3-(1,2-dimethylheptyl)-7,8,9,10-tetrahydro-6,6,9-
trimethyl-6H-dibenzo[b,d]pryan-1-ol(DMHP)
but not including
(8)
Non?viable Cannabis seed, with the exception of its
derivatives
(9)
Mature Cannabis stalks that do not include leaves, flowers,
seeds or branches; and fiber derived from such stalks
1996, c. 19, Sch. II; SOR/98-157; SOR/2003-32, s. 1.
SCHEDULE VII
(Sections 5 and 60)
Substance
Amount
1. Cannabis resin
3 kg
2. Cannabis (marihuana)
3 kg
SCHEDULE VIII
(Sections 4 and 60)
Substance
Amount
1. Cannabis resin
1 g
2. Cannabis (marihuana)
30 g
JCT: Ah, so this could be their limit.
In Cannabis: Our Position for a Canadian Public Policy,
Report of the Senate Special Committee on Illegal Drugs
Summary September 2002 Tab ____, on page 6, the definition
of marijuana (marihuana) is: Mexican term originally
referring to a cigarette of poor quality. Has now become a
synonym for cannabis in popular language usage. On Page 3,
Cannabis is defined as:
Three varieties of the cannabis plant exist: cannabis
sativa, cannabis indica, and cannabis ruderalis. Cannabis
sativa is the most commonly found, growing in almost any
soil condition. The cannabis plant has been known in China
for about 6000 years. The flowering tops and leaves are used
to produce the smoked cannabis. Common terms used to refer
to cannabis are pot, marijuana, dope, ganja, hemp. Hashish
is produced from the extracted resin. Classified as a
psychotropic drug, cannabis is a modulator of the central
nervous system. It contains over 460 known chemicals, of
which 60 are cannabinoids. Delta-9-
tetrahydrocannabinol, referred to as THC, is the
principal active ingredient of cannabis. Other components
such delta-8-tetrahydrocannabinol, cannabinol and
cannabidiol are present in smaller quantities and have no
significant impacts on behaviour or perception. However,
they may modulate the overall effects of the substance.
On page 5: Hashish is defined as:
Resinous extract from the flowering tops of the cannabis
plant transformed into a paste.
On page 6: Tetrahydrocannabinol (D9-THC)
Main active component of cannabis, D9-THC is highly fat-
soluble and has a lengthy half-life. Its psychoactive
effects are modulated by other active components in
cannabis. In its natural state, cannabis contains between
0.5% to 5% THC. Sophisticated cultivation methods and plant
selection, especially female plants, lead to higher levels
of THC concentration.
Cal NORML Newsletter Aug. 1999 and Jorge's marijuana
growing Tab ____ confirm that cannabis resin, cannabidiol,
cannabinol and tetrahydrocannabinol are natural ingredients
in the plant genus cannabis. As well, in R. v. Parker
(O.C.J.) Toronto Region (The Honourable Judge Patrick
Sheppard on December 10, 1997) Tab ____ Page 3 #5 notes:
the affidavit of Dr. John P. Morgan, Professor of
Pharmacology at the City University of New York medical
School, an expert/advocate on medical uses of marihuana. Dr
Morgan also testified and advised that research and studies
indicate that Tetrahydrocannabinol and Cannabidiol appear to
be the effective elements within marihuana which have
medical therapeutic effect for a significant list of
illnesses. This list includes victims of epilepsy.
In R. v. Krieger Tab ____Judge Acton notes:
[16] Dr Kalant's evidence was that to date there have been
two major chemical components in cannabis marijuana which
have been identified as having pharmacological properties:
THC and cannabidiol (CBD).
It is obvious that cannabis marihuana -Schedule II (2) -
naturally contains:
a. Cannabis resin - Schedule II (1)
b. Cannabidiol (CBD) - Schedule II (3)
c. Cannabinol (CBN) - Schedule II (4); and
d. Tetrahydrocannabinol (THC) - Schedule II (7)
and when this honourable court finds that the marihuana
prohibition is unknown to law, null and void should, by
judgment, order that the Cannabis resin, Cannabidiol,
Cannabinol and Tetrahydrocannabinol prohibitions are also
unknown to law, thereby preventing Crown from prosecuting
unnecessarily for the elements contained within marihuana
for reason dictates that it is impossible to have marihuana
without also having the elements thereof.
It may be worthwhile to note that the other Schedule II
substances (5) Nabilone, (6) Pyrahexyl and (recently added)
(7.1) DMHP are of synthetic origin.
8. Canadian Bill of Rights
14 Section 2(a) and (b) of the Bill states:
2. Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it shall
operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or
infringe or to authorize the abrogation, abridgement or
infringement of any of the rights or freedoms herein
recognized and declared, and in particular, no law of Canada
shall be construed or applied so as to
(a) authorize or effect the arbitrary detention,
imprisonment or exile of any person;
(b) impose or authorize the imposition of cruel and unusual
treatment or punishment;
The Constitution Act, 1982 Tab ____ states:
1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
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.
8. Everyone has the right to be secure against unreasonable
search or seizure.
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
11. Any person charged with an offence has the right
(g) not to be found guilty on account of any act or omission
unless, at the time of the act or omission, it constituted
an offence under Canadian or international law or was
criminal according to the general principles of law
recognized by the community of nations;
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit
of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.
