TURMEL: New do-it-yourself marijuana self-defence kits

JCT: Due to the latest Application to Prohibit his marijuana
charges because of POLCOA, Parliament Only Legislates, Courts
Only Abrogate, by Ken Surgent in Windsor Ontario, I've had to
redo the kits to include all the latest positive jurisprudence,
Sfetkopoulos and Beren, to our armaments.

All the forms for the latest Application for Prohibition of
marijuana charges have been posted at the files section of my
medpot announcement group at
http://health.groups.yahoo.com/group/MedPot/files under the names
prsco*.docx for Prohibition at Superior Court of Ontario:

Court File No. _________
ONTARIO SUPERIOR COURT OF JUSTICE
(Criminal Division - ______________ Region)
Between:
________________________
Applicant/Accused
and
Her Majesty the Queen
Respondent/Plaintiff

NOTICE OF APPLICATION FOR PROHIBITION

TAKE NOTICE THAT on ______________ at _____am or so soon
thereafter as can be heard the application to a judge at the
courthouse at __________________________________________for

A) an Order prohibiting prosecution of all charges relating
to marijuana under the CDSA as unknown to law on the grounds that
1) Parliament has not re-enacted the S.7 cultivation and S.4
possession prohibitions which underpin all other marijuana
prohibitions in the CDSA since they were struck down by the
Ontario and Alberta Courts of Appeal; or
2) if the prohibitions were somehow resurrected without
Parliament, that the Sfetkopoulos and Beren decisions create a
similar period of retrospective invalidity dating back to
December 3 2003, the date that s.41(b.1) and 54 were re-
introduced into the MMAR pursuant to the Court in R. v. J.P.'s
ruling that the combined effect of Parker and Hitzig meant there
was no constitutionally valid marijuana possession offence
between July 31 2001 and Oct 7 2003, the date the MMAR were
constitutionally rectified by the decision in Hitzig.

B) And for an Order staying all charges for marijuana as abuse of
the court process on the grounds all statutes related to
marijuana are of no force and effect and ordering the Crown to
cease and desist all marijuana prosecutions until Parliament re-
enacts a new constitutionally valid prohibition with a new
constitutionally valid exemption.

C) And an Order, in the absence of proof that all inmates
convicted since the marijuana prohibitions were repealed have
been released, that cites the Ministry of Justice for contempt of
this Court by continuing prosecution after Crown Attorney S.
David Frankel acknowledged to the Supreme Court of Canada in R.
v. Krieger that the S.7 Cultivation and S.4 Possession
prohibitions had been struck down by the highest court in Alberta
and did not dutifully inform Canada's Law Enforcement to cease
and desist arrests under the repealed statutes and now Crown
Attorney Sean Gaudet says:

D) And an Order expunging the criminal records of all those
convicted since the prohibitions have been invalidated.

E) And for any Order abridging the time for service, filing, or
hearing of the application, or amending any defect as to form or
content of the application, or for any Order deemed just.

Documentation to be used:
App.1: 2000 Jul 31 Parker Ont.C.A. Order on CDSA S.4....(A1)
App.2: 2003 Mar 18 Krieger Ab.C.A. Memorandum on S.7....(A2)
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)
App.8: 2003 Oct 07 Turmel Ont.C.A. Order for Parker Day(A12)
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 submission....................(A18>
App.13: 2009 Sfetkopoulos Sean Gaudet Memorandum.......(A19)

Dated at __________________ on ______________ 2004

_____________________________
Applicant/Accused Signature

Name: ___________________________________
Address: _________________________________________________
Tel: _________________________  Fax: _____________________
Email: ______________________________

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


APPLICANT'S FACTUM

OVERVIEW

1. This is an issue of national importance. Epilepsy.ca cites 4
deaths every day from among the 400,000 known epileptics and yet,
after 10 years, due to the onerous Health Canada hurdles set
before their doctors to get their prescriptions filled, there are
only just over 4000 Health Canada exemptees in all of Canada for
all illnesses with only a small fraction from Canada's epileptic
community. 15,000 epileptics died in the 10 years it took for
Health Canada to exempt 4000 Canadians. The vast majority of
Canada's epileptics remain unexempted, including Terrance Parker.
The MMAR's failure to provide a constitutionally acceptable
medical exemption creates a genocide among Canada's epileptics.
No epileptic should be without a cannabis joint. No epileptic
should have been, should be, left unexempted. No prohibition
against marijuana can exist while the majority of Canada's
epileptics remain unexempted.

PART I - STATEMENT OF FACTS

2. On Dec 10 1997, Ontario Provincial Judge Sheppard stayed
S.4(1) and S.7(1) charges against Terrance Parker ruling:
"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(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.
www.cyberclass.net/turmel/sheppard.htm

3. On July 31 2000, the Crown's appeal against the S.4(1)
possession ruling but not against the S.7(1) cultivation remedy,
was dismissed by Ontario Court of Appeal Justices Rosenberg,
Catzman and Charron who Ordered "the marijuana prohibition in s.4
of the CDSA to be invalid" for not providing access for medical
purposes and suspended its ruling while granting Parker a
constitutional exemption for 1 year. The court further wrote they
would have invalidated the cultivation prohibition had the Crown
appealed Parker's win on Section 7 too.
App.1: 2000 Jul 31 Parker Ont.C.A. Order on CDSA S.4 repeal
www.ontariocourts.on.ca/decisions/2000//july/parker.htm

4. Though Parker was not deprived of his rights in that year,
2400 to 4600 Canadian epileptics who were not exempted with him
were deprived of their right to life and every year since then.
With the Attorney General for Canada erroneously holding that the
CDSA prohibition had been saved by the MMAR, the courts have
continued wrongly convicting hundreds of thousands of Canadians.

5. On Dec. 11 2000 in R. v. Krieger, Alberta Justice Acton took
care of that omission by declaring the prohibition in Section
7(1) to be of no force and effect and suspending her ruling for 1
year:
"[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."
www.albertacourts.ab.ca/jdb/1998-
2003/qb/Criminal/2000/2000abqb1012.pdf

6. On Jul 30 2001, one day before the expiry of the suspension of
the Parker declaration of invalidity, Health Canada issued the
Marihuana Medical Access Regulations (MMAR) which the Ontario
Court of Appeal later ruled in R. v. J.P. had failed to forestall
the Parker Court's invalidation of the s.4(1) prohibition.

7. On Aug 1 2001, Parker's exemption expired without the MMAR
having provided the necessary medical access which is why the
Court of Appeal in R. v. J.P. ruled the marijuana prohibition in
s.4 of the CDSA became invalid after July 31 2001.

8. On Sep 15 2001, Health Canada sent Parker a s.56 ministerial
exemption after his constitutional exemption had expired, six
weeks too late.

9. On Nov 28, upon a motion by Krieger Crown Attorney Scott
Couper for an interim order extending suspension of Acton's order
"until the appeal or until further order of the Court of Appeal,"
Alberta Court of Appeal Justice O'Leary granted an interim Order
extending the suspension "until further order of the court."
www.cyberclass.net/turmel/oleary.pdf

10. On Mar 15 2002, the day after Parker's s.56 exemption had
expired, Ontario Superior Court Justice Romain Pitt using his
criminal jurisdiction granted Parker an "Order extending the
constitutional exemption granted to the applicant by the Ontario
Court of Appeal until the Government has complied with the
court's ruling."
www.cyberclass.net/turmel/pittorde.jpg

11. On Dec 4 2002, Alberta Court of Appeal Justices Wittman,
Costigan, and LoVecchio Order dismissed the Crown's appeal
against Acton J.'s invalidation in R. v. Krieger :
"[1] The Respondent was charged with possession of marihuana for
the purpose of trafficking contrary to s. 5(2) of the CDSA 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.
[..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.
App.2 Krieger Court of Appeal of Alberta Judgment
www.albertacourts.ab.ca/jdb/1998-
2003/ca/Criminal/2003/2003abca0085.pdf

12. The Calgary Herald and Sun reports misrepresented the
striking down of the S.7 and S.4 prohibitions as a personal
exemption victory for Krieger and that the O'Leary interim stay
still prevented the Acton ruling from taking effect. Calgary
Herald's Daryl Slade wrote that "Krieger's lawyer, Adriano
Iovinelli, said outside court it was an important decision that
permits his client to continue to cultivate and use marijuana for
his own use to alleviate chronic pain caused by multiple
sclerosis. Iovinelli said, as it stands, it is status quo on
Krieger's charter exemption. But he suggested that would not
apply to the general public.." Also, it informed: "Alberta Court
of Appeal Justice Willis O'Leary last year extended that stay
indefinitely, until there is an application to the courts to
remove it."
App.3: 2002 Dec 05 Calgary Herald Krieger article
App.4: 2002 Dec 05 Calgary Sun Krieger article

13. Once the Court of Appeal for Alberta became functus officio
after issuing its further final Order on Mar 18 2003, that
court's interim Order by O'Leary J.A. staying the Acton
invalidation of the prohibitions in Section 7(1) and, by
implication, Section 4(1) of the CDSA, also lapsed. The only
court not yet functus officio was the court of last resort and
only a stay emanating pursuant to S.65.1(1) of the Supreme Court
of Canada Act could stay the Acton invalidation from taking
effect.

14. Section 65.1(1) of the Supreme Court of Canada Act:
"Stay of execution -- application for leave to appeal
65.1 (1) The Court, the court appealed from or a judge of either
of those courts may, on the request of the party who has served
and filed a notice of application for leave to appeal, order that
proceedings be stayed with respect to the judgment from which
leave to appeal is being sought, on the terms deemed
appropriate."

15. No stay was obtained.

16. On Jan 2 2003, in R. v. J.P., Windsor Provincial Judge
Phillips quashed a s.4(1) marihuana possession charge laid on
April 12 2002, after Terry Parker Day, declaring:
[7] It is submitted by the Applicant therefore, that
Rosenberg, J. A.'s judgment had the effect of declaring
invalid the marihuana prohibition in s. 4 (1) effective on
July 31, 2001 - twelve months after the release of the
reasons in R. v. Parker. It is therefore argued that in keeping
with s. 2(2) of the Interpretation Act(2), the enactment was
deemed repealed.
(2)See the Interpretation Act, R.S.C. 1985, c. I-21 at Section
2(2) which states: "For the purposes of this Act, an enactment
that has been replaced is repealed and an enactment that has
expired, lapsed or otherwise ceased to have effect is deemed to
have been repealed."
[8] The Controlled Drugs and Substances Act was not amended
by Parliament, and no prohibition on the simple possession
of marihuana has been re-enacted.
cannabislink.ca/legal/windsordecision.htm

17. On Jan 9 2003, Lederman J. ruled in Hitzig v. HMQ that the
MMAR had failed to comply with the court's ruling, as had Pitt J.
in 2002,  and suspended his ruling 6 months.
www.canlii.org/on/cas/onca/2003/2003onca10584.html

18. On May 14 2003, to demonstrate that the prohibition was no
longer valid in Canada on the day before the Minister of Justice
was to introduce legislation to newly re-criminalize the
prohibition of marijuana, John Turmel was charged at the doors of
the House of Commons with possession of 3.3Kg of marijuana for
the purpose of trafficking to the Prime Minister, Justice
Minister, Supreme Court and others.
App.5: 2003 May 14 Turmel holds back marijuana bill

19. On May 15 2003, the Chretien Government held back the
marijuana bill and S.7 nor S.4 were never re-enacted after being
deemed repealed. Parliament has never re-enacted any new
prohibitions since the repeal of S.7 and S.4 prohibitions by the
Alberta Court of Appeal.

20. On May 16 Rogin J. in R. v. J.P. dismissed the Crown appeal
of the Phillips decision on the technicality that ruled that once
the legislation was going to be struck down on Terry Parker Day,
a new statute had to be enacted by Parliament, not a fix of the
statute that was being struck down. This is the third Ontario
Superior Court Justice to have ruled that the MMAR had not
functioned to save the CDSA.
[9] (1) On July 31, 2000, Rosenberg J. in R. v. Parker, severed
marihuana from s. 4 of the Controlled Drugs and Substances Act
and declared it invalid. Section 4 as it relates to substances
other than marihuana remains in full force and effect.
(2) The declaration of invalidity was suspended for a period
of 12 months from July 31, 2000. Mr. Parker was granted an
exemption from the marihuana provision in s. 4 during the
period of suspended invalidity.
(3) As of July 31/01, s. 4 of the Controlled Drugs and
Substances Act as it related to marihuana was invalid...
[15] It follows from these reasons, that neither Count 1 nor
Count 2 contains an offence known to law...
[16] The Crown Appeal from the judgment of Phillips J. is
dismissed.
Steven Rogin, Justice Released: May 16, 2003
www.canlii.org/on/cas/onsc/2003/2003onsc10765.html

21. With no new legislation to replace that struck down by the
Krieger court, on May 16 2003, in the Crown Memorandum to the
Supreme Court of Canada Crown S. David Frankel pleaded for leave
to appeal because "
"[11] The Court of Appeal did not deal with O'Leary's order.
Accordingly, it remains an offence to grow marihuana in Alberta,
unless a person has obtained a ministerial or judicial exemption.
If the suspension order were to be vacated, then there would be
no prohibition whatsoever on the cultivation of marihuana in the
province."
[57 As matters now stand S.7(1) has been declared of no force and
effect by the highest court in Alberta. An application to vacate
O'Leary's Order could be brought at any time. If the suspension
order were vacated, then the cultivation of marijuana would not
be an offence in Alberta."
App.6: 2003 May 16 S. David Frankel culpability clause

22. An application to vacate cannot be brought ever once the
Final Order closed closed the file and the court became functus
officio. O'Leary J.A.'s interim Order out of a court that is
functus officio does not need to be vacated. After the Crown did
not obtain a Supreme Court stay pursuant to S.65., Frankel's only
recourse was to argue that the stay out of the functus officio
court continued in effect.

24. On Dec. 23 2003, the Supreme Court of Canada dismissed the
Crown's Application for leave to appeal the Acton decision
declaring the prohibition against cultivation of marijuana in
section 7(1) of the CDSA to be of no force and effect. From the
December 23 2003, the Supreme Court of Canada Bulletin of
Proceedings of the Krieger decision:

"29569 HER MAJESTY THE QUEEN v. GRANT WAYNE KRIEGER
(Crim) (Alta.)
Coram: McLachlin C.J. and Major and Fish JJ.

The application for leave to appeal from the judgment of the
Court of Appeal of Alberta (Calgary), Numbers 01-00011-A and 01-
00288-0A, dated March 18 2003, is dismissed."

NATURE OF THE CASE
Canadian Charter of Rights and Freedoms - Criminal law - Cannabis
marihuana - Cultivation and trafficking - Accused cultivating
cannabis marihuana for his own medical needs and supplying others
as well - Trial judge finding that prohibition on production of
cannabis marihuana infringing accused's s. 7 Charter rights and
not saved by s.1. Whether The Court of Appeal erred in holding
that s.7 of the Charter guarantees the right to grow (and by
implication, possess) marihuana, to anyone with a medical need
for the drug...
App.10: 2003 Dec 23 Krieger Supreme Court Order
App.10b: Supreme Court of Canada Bulletin Dec 23 2003
www.lexum.umontreal.ca/csc-scc/en/bul/2003/html/03-12-23.bul.html

24. On Oct 06 2003, in another application to quash marijuana
charges as unknown to law in R. v. Kurtiss Lee Masse, Judge Chen
ruled:
"[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.
[67] It follows therefore, that there is no offence known to law
at this time for simple possession of marihuana. The application
is allowed.
www.provincialcourt.bc.ca/judgments/pc/2003/03/p03_0328.htm

25. On Oct 7 2003, Ontario Court of Appeal Justices Doherty,
Goudge, and Simmons ruled in R. v. J.P. that the invalidation of
the prohibition in s.4(1) by R.v. Parker had taken effect after
July 31 2001 noting that on April 12 2002 when J.P. was charged:
[11] Having determined in Hitzig that the MMAR did not create a
constitutionally valid medical exemption... the prohibition
against possession 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... It
follows that as of that date, the offence of possession of
marijuana in s.4 of the CDSA was of no force and effect. The
respondent could not be prosecuted.

26. The same court in Hitzig had amended the MMAR by striking
down four (4) cancerous sections and opined that it had the
effect that "prohibition is now no longer invalid, but is of full
force and effect" but refused to include it in the Order herein
when requested:
[2]...We have concluded that for those people the MMAR as drafted
by the Government do not create a constitutionally acceptable
medical exemption... the remedy we would impose, namely to
declare invalid only five specific sections of the MMAR. This
renders constitutional the medical exemption as described in the
remaining provisions of the MMAR, thereby rendering the
possession prohibition in s. 4 of the CDSA constitutional: R. v.
Parker, supra.
App.7: 2003 Oct 07 Hitzig Ont.C.A. Order for MMAR fix
App.8: 2003 Oct 07 Turmel Ont.C.A. Order for Parker Day
www.ontariocourts.on.ca/decisions/2003/october/hitzigC39532.htm

27. On Dec. 3, Health Canada reinstituted cancerous sections
41(b.1) and 54 of the MMAR which had been struck down in Hitzig
as unconstitutional limitations on medical users' rights.

28. On Dec 8 2003, the Federal Crown stayed all 4000 pending
s.4(1) possession charges laid after July 31 2001 across Canada.
App.9: 2003 Dec 08 Turmel stays 4000 since Parker Day

29. On the same day the Supreme Court dismissed the Crown's
Krieger application for leave, the Court issued the Malmo-Levine
ruling that recreational need cannot impede the government's
power to prohibit marijuana despite though the Parker ruling
certified that medical need does. Appellant agrees the Government
can, our point is that the government has not made use of the
power established in Malmo-Levine to do just that since the
Parker and Krieger invalidations.

30. On April 1 2004, John Turmel wrote the Attorney General
demanding redress for the injustice done to those convicted under
the invalid sections with no response.
App.11: 2004 Apr 01 Turmel to A.G. for 100,000 more

31. The Nov 22 2004 submission of the Canadian AIDS society on
the proposed amendments to the Marihuana Medical Access
Regulations calls on Health Canada to comply with the Ontario
Court of Appeal's ruling in Hitzig and requested s.41(b.1) and
s.54 be removed from the MMAR.
turmelpress.com/cdnaids.htm

32. On Oct 27 2008, the Federal Court of Appeal in Attorney
General of Canada v. Sfetkopoulos found that the MMAR re-
institution of MMAR sections 41(b.1) and 54 had made the MMAR
once again unconstitutional limitations on rights.
www.canlii.org/en/ca/fca/doc/2008/2008fca328/2008fca328.html

33. On Feb 02 2009, Justice Koenigsberg agreed with Sfetkopoulos
in R. v. Beren:
[127] Adopting the reasoning in Hitzig and Sfetkopoulos, further
bolstered by the evidence before this court, I find ss.41(b.1)
and 54.1 of the MMAR contrary to s. 7 of the Charter.
[129] As the matter now stands, the federal Court of Appeal in
Sfetkopoulos declared s. 41(b.1) invalid and refused to suspend
that declaration. The case is under appeal to the Supreme Court
of Canada.
[133] ..Consistent with the reasoning in Schachter v. Canada,
[1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, these provisions, unduly
restricting DPLs from growing for more than one ATP or growing in
concert with two other DPLs, are hereby severed from the MMAR.
[135] The government, in my view, will need time to put in place
appropriate monitoring and enforcement mechanisms in relation to
such compassion clubs.  Thus, it is appropriate to stay the
effect of this declaration of invalidity for one year.
"Koenigsberg J."
www.courts.gov.bc.ca/jdb-txt/SC/09/04/2009BCSC0429.htm

34. In the Crown's Memorandum for leave to appeal Sfetkopoulos to
the Supreme Court of Canada, Crown Sean Gaudet pleaded:
[33] The judgment in this case may create confusion concerning
the constitutional validity of the prohibition against the
possession of marihuana as set out in S.4 of the CDSA and
therefore compromise existing prosecutions under the CDSA. In R.
v. Poelzer, for example, a prosecution currently underway in B.C.
Supreme Court, defence counsel has argued that, by virtue of the
Ontario Court of Appeal's judgment in R. v. J.P. the invalidation
of s41(b.1) of the MMAR retrospectively invalidates s.4(1) of the
CDSA in respect of marihuana. The Court in R. v. J.P. ruled that
the combined effect of Parker and Hitzig meant there was no
constitutionally valid marijuana possession offence between July
31 2001 and Oct 7 2003, the date the MMAR were constitutionally
rectified by the decision in Hitzig. Courts may construe the
Federal Court of Appeal's decision as creating a similar period
of retrospective invalidity dating back to December 3 2003, the
date that s.41(b.1) was re-introduced into the MMAR."
johnturmel.com/gaudet.htm

35. In the Applicant's Memorandum for a stay:
1. The Federal Court of Appeal has declared s.41(b.1) of the MMAR
constitutionally invalid.
17. This Court has recognized that there is a public interest in
avoiding harm to users and others caused by marihuana
consumption." The effect of the judgment of this Court is to
jeopardize this public interest in two ways:
(1) Courts are being urged and may interpret the FCA's judgment
as retrospectively invalidating the offence of marijuana
possession, trafficking and/or production in sections 4,5, and 7
of the CDSA.
(2) The public interest in maintaining the offence provisions of
the CDSA
21. Members of the criminal defence bar have argued that s.4 of
the CDSA is retrospectively invalid as a result of the judgments
of the courts below. For example, defence counsel in the R. v.
Poelzer appeal before the B.C. Supreme Court argued that the
FCA's judgment means that Parliament failed to implement a
constitutionally acceptable scheme for ensuring a licit supply of
marijuana for medical reasons, as required in the Ontario Court
of Appeal in Hitzig, and that the prohibition of possession of
marijuana is therefore of no force and effect. While this
argument was rejected by the Court in that case, this has not
prevented it from being raised in other prosecutions. In a
judgment issued on Feb 2 2009, without written reasons, Justice
Koenigsberg of the B.C. Supreme Court declared that s41(b.1) of
the MMAR to be unconstitutional on the same grounds as the FCA in
this case, but suspended the declaration of invalidity for one
year. She went further and, on the same grounds, struck down
S.54.1 of the MMAR, which restricts the number of licensed
growers who can grow in common."

36. On April 23 2009, the Supreme Court dismissed the application
for leave to appeal and unconstitutional sections 41(b.1) and 54
of the MMAR continue to taint the medical exemption process.
www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-
eng.aspx?cas2944

PART II - ISSUES

37. A) Should an Order be granted prohibiting prosecution of all
charges relating to marijuana under the CDSA as unknown to law on
the grounds that
1) Parliament has not re-enacted the S.7 cultivation and S.4
possession prohibitions which underpin all other marijuana
prohibitions in the CDSA since they were struck down by the
Ontario and Albert Courts of Appeal; or
2) if the prohibitions were somehow resurrected without
Parliament, that the Sfetkopoulos and Beren decisions create a
similar period of retrospective invalidity dating back to
December 3 2003, the date that s.41(b.1) and 54 were re-
introduced into the MMAR pursuant to the Court in R. v. J.P.'s
ruling that the combined effect of Parker and Hitzig meant there
was no constitutionally valid marijuana possession offence
between July 31 2001 and Oct 7 2003, the date the MMAR were
constitutionally rectified by the decision in Hitzig.

38. B) Should an Order be granted staying all charges for
marijuana as abuse of the court process on the grounds all
statutes related to marijuana are of no force and effect and
ordering the Crown to cease and desist all marijuana prosecutions
until Parliament re-enacts a new constitutionally valid
prohibition with a new constitutionally valid exemption.

39. C) Should an Order be granted, in the absence of proof that
all inmates convicted since the marijuana prohibitions were
repealed have been released, that cites the Ministry of Justice
for contempt of this Court by continuing prosecution after Crown
Attorney S. David Frankel acknowledged to the Supreme Court of
Canada in R. v. Krieger that the S.7 Cultivation and S.4
Possession prohibitions had been struck down by the highest court
in Alberta and did not dutifully inform Canada's Law Enforcement
to cease and desist arrests under the repealed statutes and now
Crown Attorney Sean Gaudet says:

40. D> Should an an Order be granted expunging the Criminal
Records of all those convicted since the prohibitions were
invalid.

PART III - ARGUMENTS

41. A)1. In R. v. J.P., Justices Phillips, Rogin, and in R v.
Masse, Justice Chen, make very clear that when a statute has been
invalidated by the courts as unconstitutional, it is to be deemed
repealed pursuant to the Interpretation Act. The Parker Court
invalidated the possession prohibition, the Krieger Court
invalidated the cultivation prohibition and the J. P. Court of
Appeal said the invalidated laws were only absent until the MMAR
was fixed which they said they had. The Interpretation Act says
"repealed," the Ontario Court of Appeal says only "absent until
fixed." The Interpretation Act rules.

42. A)2. If the Hitzig court did resurrect the prohibitions, on
December 3 2003, Health Canada re-instituted two of the bad
conditions; Section 41.(b.1) of the MMAR found to be flawed in
Sfetkopoulos and R. v. Beren as well as Section 54 found to be
flawed in Beren. If four Hitzig flaws were enough to taint the
MMAR, so too are re-instituted ones. The Sfetkopoulos and Beren
decisions create a similar period of retrospective invalidity
dating back to December 3 2003, the date that s.41(b.1) and 54
were re-introduced into the MMAR pursuant to the Court in R. v.
J.P.'s ruling that the combined effect of Parker and Hitzig meant
there was no constitutionally valid marijuana possession offence
between July 31 2001 and Oct 7 2003, the date the MMAR were
constitutionally rectified by the decision in Hitzig.

43. B) The Ministry of Justice DID NOT amend the Criminal Code to
reflect the Parker invalidation in 2001, nor the Krieger
invalidation in 2003, nor to reflect the Sfetkopoulos decision.
Yet, Canada's lawyers and judges say: It's still in the Code so
it must still be valid." An Order staying all charges for
marijuana as abuse of the court process on the grounds all
statutes related to marijuana are of no force and effect must be
granted to remedy their dereliction.

44. C) The Ministry of Justice's failure to reflect the judgments
of the courts in the Criminal Code show a clear contempt at all
levels of the court and should be treated as such.

45. D) The Ministry's failure to expunge its errors during the
earlier two years of legislative invalidity show an obstinate
dereliction that can only be corrected by order of this court.

REMEDIES SOUGHT:

46. Applicant seeks:
A) an Order prohibiting prosecution of all charges relating
to marijuana under the CDSA as unknown to law on the grounds that
1) Parliament has not re-enacted the S.7 cultivation and S.4
possession prohibitions which underpin all other marijuana
prohibitions in the CDSA since they were struck down by the
Ontario and Albert Courts of Appeal; or
2) if the prohibitions were somehow resurrected without
Parliament, that the Sfetkopoulos and Beren decisions create a
similar period of retrospective invalidity dating back to
December 3 2003, the date that s.41(b.1) and 54 were re-
introduced into the MMAR pursuant to the Court in R. v. J.P.'s
ruling that the combined effect of Parker and Hitzig meant there
was no constitutionally valid marijuana possession offence
between July 31 2001 and Oct 7 2003, the date the MMAR were
constitutionally rectified by the decision in Hitzig.

B) And for an Order staying all charges for marijuana as abuse of
the court process on the grounds all statutes related to
marijuana are of no force and effect and ordering the Crown to
cease and desist all marijuana prosecutions until Parliament re-
enacts a new constitutionally valid prohibition with a new
constitutionally valid exemption.

C) And an Order, in the absence of proof that all inmates
convicted since the marijuana prohibitions were repealed have
been released, that cites the Ministry of Justice for contempt of
this Court by continuing prosecution after Crown Attorney S.
David Frankel acknowledged to the Supreme Court of Canada in R.
v. Krieger that the S.7 Cultivation and S.4 Possession
prohibitions had been struck down by the highest court in Alberta
and did not dutifully inform Canada's Law Enforcement to cease
and desist arrests under the repealed statutes and now Crown
Attorney Sean Gaudent says:

D) And an Order expunging the criminal records of all those
convicted since the prohibitions have been invalidated.


SCHEDULE A
Authorities to be cited

R. v. Beren Koenigsberg BC Superior Court
www.courts.gov.bc.ca/jdb-txt/SC/09/04/2009BCSC0429.htm

Hitzig v. HMTQ Lederman Ontario Superior Court
www.canlii.org/on/cas/onca/2003/2003onca10584.html
Hitzig Court of Appeal
www.ontariocourts.on.ca/decisions/2003/october/hitzigC39532.htm

R. v. J.P. Ontario Court of Justice
Phillips cannabislink.ca/legal/windsordecision.htm
R. v. J.P. Ontario Superior Court Rogin
www.canlii.org/on/cas/onsc/2003/2003onsc10765.html
R. v. J.P. Ontario Court of Appeal
www.ontariocourts.on.ca/decisions/2003/october/jpC40043.htm

R. v. Krieger Alberta Court of Appeal
www.albertacourts.ab.ca/jdb/1998-
2003/qb/Criminal/2000/2000abqb1012.pdf
R. Krieger Supreme Court of Canada Bulletin Dec 23 2003
www.lexum.umontreal.ca/csc-scc/en/bul/2003/html/03-12-23.bul.html

R. v. Masse BC Provincial Court Chen
www.provincialcourt.bc.ca/judgments/pc/2003/03/p03_0328.htm

R. v. Parker Ontario Provincial Court Sheppard
www.cyberclass.net/turmel/sheppard.htm
R. v. Parker Ontario Court of Appeal
www.ontariocourts.on.ca/decisions/2000//july/parker.htm

AGoC v. Sfetkopoulos Federal Court of Appeal
www.canlii.org/en/ca/fca/doc/2008/2008fca328/2008fca328.html
AGoC. v. Sfetkopoulos Supreme Court of Canada
www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-
eng.aspx?cas2944


SCHEDULE B
Relevant legislative Provisions

Interpretation Act Section 2.2
canlii.org/en/ca/laws/stat/rsc-1985-c-i-21/latest/rsc-1985-c-i-
21.html

Dated at _________________ on _____________________
_______________________________
For the Applicant/Accused:
Address:_____________________________
_____________________________
Tel/fax: _____________________________
Email: __________________________
[ Auf dieses Posting antworten ]
Antworten

steve brown (23.10.2009 20:38)
johnturmel (25.10.2009 00:31)