Part 8 Noreen Evers
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.
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.
