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TURMEL: Michael Ethier's Bracebridge Crown Submissions

Von: KingofthePaupers (johnturmel@yahoo.com) [Profil]
Datum: 04.06.2010 23:07
Message-ID: <e9aa969b-dc87-4b62-a323-d639d2be1476@w3g2000vbd.googlegroups.com>
Newsgroup: alt.conspiracy alt.drugscan.legal can.politics alt.fan.john-turmel
JCT: Here's the written representations of the Crown in
Michael Ethier's case in Bracebridge coming up on June 16.??

Court File No. CR-10-06-MO
In the Superior Court of Justice

Between:
Michel D. Ethier
Applicant
And
Her Majesty the Queen
Respondent

Respondent Crown's Submissions

CR: Part l: History of the proceedings

1. On August 10, 2008 Cst. Bill Trude of the Ontario
Provincial Police Bracebridge detachment stopped the
Applicant's vehicle as it was travelling Northbound on Highway
11 in Bracebridge, pursuant to the Highway traffic Act. After
a short interaction with the Applicant, Cst. Trude, believing
that he had reasonable grounds, arrested the Applicant and
seized, pursuant several bags of cannabis marihuana with a
total weight of 376.2 grams.

2. The Applicant was charged with possession of cannabis
marihuana (over 30 grams) contrary to section 4(1) of the
Controlled Drugs and Substances Act (CDSA) and the matter was
made returnable in Ontario Court of Justice Bracebridge. On
September 30, 2008 the crown elected to proceed by way of
summary conviction procedure.

3.-4. Adjournments

5. The Applicant now brings an application in this court for
an Order prohibiting the prosecution of all charges relating
to marihuana (pursuant to section 601 of the Criminal Code);
an Order staying all marihuana charges as an abuse of process
of the Court; an order citing the Minister of Justice in
contempt of Court, an Order expunging the criminal records of
all those convicted of marihuana offences and various orders
in the nature of "public interest litigation".

Related Proceedings

6. On June 1, 2009 the Applicant filed the same prohibition
application as is before this Honourable Court in the Federal
court (Trial Division - File No. T-888-09)....

JCT: Who have no jurisdiction

CR: Selected Other Cases Involving the Applicant

11. On April 2, 2009 the Applicant was before Justice Nadeau
of the Superior Court on charges in North Bay. Mr. Justice
Nadeau after hearing many of the same arguments advanced in
this application decided against the Applicant on the
substantive issues that were before the Court in the
Applicant's North Bay Matters.

JCT: Nadeau is the same judge who convicted Real Martin and
dismissed his Prohibition and Quash motions before convicting.

CR: 12. (Jct: More Federal Court Stuff)

16. On March 31, 2005 Mr. Ethier was before the Ontario Court
of Justice at Sturgeon Falls on a charge of possession of
marihuana for the purpose of trafficking and breach of
recognizance. On that date, Judge G. Rodgers rejected Mr.
Ethier's argument that the marihuana prohibition was invalid
and of no force or effect as a result of the decision of the
Ontario Court of Appeal in R. v. Parker.

JCT: Another judge who failed to see.

CR: Part II: Issues and law

An Application for prohibition is inappropriate and the
Applicant has no standing to argue public interest litigation
in this Court.

17. An extraordinary remedy such as prohibition should not be
allowed to interfere with the ordinary trial process. Trial
courts are tasked with applying Sections 52 of the
Constitution Act and Section 24 of the Charter to the
proceedings before them. The Ontario Court of Appeal has
warned against letting applications for prerogative relief be
used to delay or obstruct trial proceedings. The applicant has
not had a trial an the merits of his case although he has had
two opportunities to have one.

JCT: We're not applying under sections 52 and 24.

18. This is an application better suited for a trial court
where the Applicant could argue any constitutional application
and then appeal any error. The basis of Mr. Ethier's
application is that this Honourable Court should prohibit the
charges from proceeding in the Ontario Court of Justice
because Mr. Ethier has not been charged with an offence known
to law. However, it has long been established in Ontario law
that prohibition is not available to restrain a judge from
proceeding with an information which does not disclose a
criminal offence or is defective in substance or form, unless
the statute under which the information was laid is ultra
vires, in this case, the Controlled Drugs and Substances Act.
The issue of whether or not an information discloses a
criminal offence is a matter for the trial judge.

Jct: Trial judge has no power to prohibit the Crown.

CR: 19. Section 601(1) of the Criminal Code, clearly states
that an application to quash an information or indictment is
to be brought before a Court in which the proceedings take
place (in this case the Ontario Court of Justice).

JCT: That's to quash a specific charge as no longer known to
law, not to prohibit it for everyone.

CR: 20. Although the Applicant has brought this application in
the Superior Court for prerogative and other relief, any
standing that he has to raise these arguments flows from his
position as a parson charged with cannabis-related offences in
the Ontario Court of Justice. It is in that court on his trial
for those offences where these issues can be properly raised.
The other forms of relief that he seeks in this court are not
personal to him, it is what the courts have characterized as
"public interest litigation". The Supreme Court of Canada has
established three rules for standing to bring public interest
litigation before the courts:
"First, is there a serious issue raised as to the invalidity
of legislation in question? Second, has it been established
that the plaintiff is directly affected by the legislation, or
if not does the applicant have a genuine interest in its
validity? Third, is there another reasonable and effective
way to bring this issue before the court?"

JCT: A serious issue? 10,000 epileptics have died because of
the inaction of the courts; the plaintiff like everyone is
directly affected by the legislation; there is no other way to
get prerogative relief against the Crown since only Superior
Court can grant extraordinary relief.

CR: 21. If the third issue which presents applicant standing
in "public interest litigation" with most difficulty as
recognized by the Supreme Court.

JCT: Not if there's no other way to bring the need for
prerogative relief to the attention of the courts.

CR: 22. Given that the Applicant already has a trial forum in
which he has standing to raise these issues as they affect his
prosecution, and given that the broader issues that he has
raised can be properly dealt with as they arise in other
prosecution or civil litigation,

JCT: Given that the broader criminal issues he can't raise
below can be raised in civil court?

CR: it cannot properly be said that there is "no other
reasonable and effective way" to bring these issues before the
courts.

JCT: Since lower court does not have jurisdiction to grant
injunctions, it seems there is no other reasonable and
effective way to bring these issues before the court.

CR: The Applicant accordingly does not have standing to raise
them in this court. A similar application for prohibition (and
other relief) was refused in the case of R. v. Turner on the
same basis: that the applicant has failed to meet the test for
standing to bring "public interest litigation."

Jct: Another judge who failed to see doesn't mean they all
should.

The Applicant's substantive arguments are insupportable.

23. The Applicant asks for various heads of relief based on
his assertions that:
a. Parliament had an obligation to formally re-enact ss. 4 & 7
of the CDSA once those sections were found to be
constitutionally flawed, and failed to do so;
b. The decision of the Alberta Court of Queen's Bench and the
Alberta Court of Appeal in R. v. Krieger have invalidated the
offences of marihuana possession, trafficking and production;

JCT: No, Krieger doesn't deal with trafficking, only S.7(1)
cultivation and S.4(1) possession prohibitions.

CR: c. The decisions of the Federal Court in Canada v.
Sfetkopoulos and the decision of the British Columbia Superior
Court in R. v. Beren have invalidated the offences of
marihuana possession, trafficking and production effective
December 3, 2003; and

JCT: No, they didn't say that. They only said the exemption
was flawed without completing the JP rationale that when the
exemption isn't working, the prohibitions aren't working.

CR: d. The prosecution of any and all marihuana offences
amounts to an abuse of process.

JCT: When the Crown Attorneys admit the law is retrospectively
invalid and don't tell the police to stop busting, that's
actually worse than mere abuse, that's criminal mischief.
Maybe that's how we get them. Lay informations against the
Crown Attorneys who know and aren't telling.

CR: Background

24. It is important at the outset to note that the Supreme
Court of Canada upheld the general constitutionality of the
cannabis prohibition in 2003 in R. v. Malmo-Levine; R. v.
Caine and R. v. Clay.

JCT: Just like in Kevin Wilson's Pallister representations,
it's as if repeating it makes it so. Of course, we do not
dispute that Malmo-Levine said the government may criminalize
marijuana, we only dispute that the court said the government
"did" criminalize marijuana after the Parker and Krieger
invalidations.

CR: 25. The history in Ontario of the issue that the Applicant
raises goes back to the July 31, 2000 decision of the Court of
Appeal for Ontario in R. v. Parker. Mr. Parker suffered from a
severe form of epilepsy which he found was alleviated better
by smoked cannabis than by conventional treatment. At his
trial for possession of marihuana he challenged the
constitutionality of the CDSA criminal prohibition of
marihuana possession on the basis that it infringed his s. 7
Charter rights to liberty and security of the person. The
Court of Appeal ultimately agreed, declaring the provision
invalid to the extent of the constitutional inconsistency but
suspending its declaration for twelve months to give the
government time to craft a legislative response.

JCT: Notice how the Crown never ever quote the Parker Court
precisely and don't mind adding their own words. "The Court of
Appeal ultimately agreed, declaring the provision invalid."
That's all it said. "to the extent of the constitutional
inconsistency" are words that are not in the judgment.

CR: 26. In response to the Parker decision the federal
government enacted the medical Marihuana Access Regulations
(MMAR), which came into force on July 30, 2001.

27. The question of whether the MMAR were a constitutional
adequate response came before the Ontario Court of Appeal in
Hitzig v. Canada. The determination in Hitzig was that there
were both eligibility issues (the requirement for a second
specialist opinion for category 3 applications) and supply
issues which rendered the government's response inadequate.

JCT: So the MMAR did not work on time and the Parker
invalidation took effect, which is why they dropped the 4000
charges. And once struck down successfully, deemed repealed
pursuant to the S.2(2) of the Interpretation Act.

CR: Rather than strike down the MMAR in their entirety and
declare s. 4 of the CDSA to be of no force or effect, the
Court crafted a Charter compliant MMAR by striking down the
following sections: ss. 4(2) (c) and section 7 (which required
a second medical specialist certificate for a category three
applicants); s. 34(2) (which prohibited the remuneration of a
licensed producer who is supplying an ATP holder); s. 41(b)
(which prohibited a licensed producer from growing for more
than one ATP holder) and s. 54 (which prohibited more than
three licensed producers from producing in common). This
resulted in a retrospective period of invalidity of the
possession of marihuana possession dating back to July 31,
2001 (the date that the suspension of invalidity in Parker
expired), but had the prospective effect of making the
prohibition once again fully constitutional in Ontario as of
October 7, 2003 (the date of the Hitzig decision).

JCT: In once sentence, he says "Rather than declare S.4(1) to
be of no force and effect" (which the Parker Court had already
done) and in the other he admits the court declared a
"retrospective period of invalidity" since Terry Parker Day.
The Hitzig Court only declared that the MMAR didn't work and
Alan Young did not ask that s.4 was no longer known to
law since Terry Parker Day. McAllister in JP asked for that
and got it.

CR: 28. Concurrently with its decision in Hitzig the Court of
Appeal also released its decision in R. v. Turmel ("Turmel
(2003)"), which held that Parker, supra, did not have the
effect of deleting marihuana from Schedule ii of the CDSA. The
Court of Appeal later emphasized this in another R. v. Turmel
decision ("Turmel (2007)"), confirming that the effect of
Hitzig and Turmel (2003) is that the marihuana offences in s.
4 of the CDSA remain in full force.

JCT: http://tech.groups.yahoo.com/group/turmel/message/3684 is
"Pallister POLCOA Reply to Crown in Owen Sound" where I
explained how beating a non-lawyer shouldn't count for so much
no matter how much scarier I am than any lawyer. Anyway, those
rulings have never been appealed on the merits so we still
only have the same three bad judges who say they brought the
law back life when Parliament didn't who also say that the
Criminal Code doesn't have to be reprinted to reflect the
Parker and Krieger invalidations, the judges can remember
which written laws don't really count. And we will
eventually challenge those bad rulings on the merits instead
of being denied enough judges on the panel to over-rule them.
Remember, the 2007 win the Crown is so happy about is only
because Chief Justice Roy McMurtry stacked the deck by
refusing to allow a 5-judge panel with power to over-rule
them. So if the panel had no power, how can the appeal be said
to have mattered when I'd been railroaded to conviction by the
Chief Justice. And then the Supreme Court of Canada saw
nothing worth correcting. Of course, these are the guys who
let a non-inmate be processed in inmate court, not stellar
legal minds even if they're at the top. In the judicial
system, shit floats upwards.

CR: The existence and constitutionality of the marihuana
possession offence in s. 4 of the CDSA have also recently been
upheld by summary conviction appeal courts in Ontario in R. v.
Long and in British Columbia in R. v. Poelzer.

JCT: More judges whose failure to see I've already parsed
previously. You'll find it easier at the
http://tech.groups.yahoo.com/group/turmel/messages where only
my posts appear rather than MedPot-discuss archives where
there are thousands more posts to filter. And fortunately, a
thousand judges who fail to see is not as impressive as just
one with his eyes open.

CR: In addition to the Ontario Court of Appeal in Hitzig v.
Canada, the Supreme Court of Canada in Clay, Malmo-Levine and
Caine, the continued validity of the marihuana prohibition has
been affirmed by the British Columbia Court of Appeal in Kubby
v. Canada (leave to appeal denied by the Supreme Court) and,
inferentially, the New Brunswick Court of Appeal in R. v.
Wood.

JCT: Notice that all these cases buttressing the Crown's case
are from the Alan Young team, always off-target shots, except
I know nothing of Wood.

A. Parliament has no obligation to "re-enact" ss. 4 & 7 of the
CDSA

JCT: To reflect the Parker and Krieger repeals, it has to add
"except marijuana" to both since they didn't' take marijuana
off the list of banned substances one may not possess S.4 or
produce S.7.

CR: 29. The Applicant argues that there are no marihuana
offences known to law because:
Parliament has not re-enacted the s. 7 cultivation and s. 4
possession prohibitions which underpin all other marihuana
prohibitions in the CDSA since they were struck down by the
Ontario and Alberta Courts of Appeal; POLCOA, Parliament only
Legislates, Courts only Abrogate. As noted above, the Court of
Appeal for Ontario dismissed this argument in Turmel (2003),
supra:
[3] He [Mr. Turmel] makes only one argument. It is founded on
the order made by this court in R. v. Parker [cite omitted],
declaring the marihuana prohibition in s. 4 of the CDSA to be
invalid and suspending the period of invalidity for 12 months.
Mr. Turmel says that since s. 4 prohibits possession of any
substance included in, inter alia, Schedule ii (which lists
marihuana), this court's declaration can only be effected (now
that the twelve months have passed) by deleting marihuana from
Schedule ii. He argues that this must remove marihuana from
Schedule ii for all purposes. Section 5(2) [the provision
under which Mr. Turmel was charged], like s.4 relies on the
listing of marihuana in Schedule ii to create the charge of
possession for the purpose of trafficking. Mr. Turmel says
that the Parker decision means that there was not such a
charge on May 26, 2003, since it deletes marihuana from
Schedule ii.

JCT: If they don't exempt marijuana in the sections. If they'd
added "except marijuana" to the prohibitions, then "marijuana"
could stay on the list. But when they didn't change the
prohibitions, how else can marijuana possession no longer be
an offence known to law if it's still on the list? Judges
don't think that far ahead logically as an scientists would.
Of course, they're the high-school math rejects which
explains their many illogical decisions.

CR: [4] While there are questions about whether this motion
was properly brought, and whether the Superior Court had
jurisdiction to hear it, we prefer to deal with this appeal by
addressing directly the argument made by Mr. Turmel.

JCT: See, you don't need to follow their procedures, all you
need to do is ask for justice and make a good case.

CR: [5] It is based on a fundamental misconception. A
declaration does not delete a provision from a statute.
Pursuant to s. 52(1) of the Constitution Act, 1982, its effect
is to render the provisions of no force or effect to the
extent of its consistency with the provisions of the
Constitution.

JCT: And how do you do that without deleting the struck down
parts? Only a non-math judge would expect there to be a way
without having first wondered if there really was. Anyway, I'm
exhausted dealing with these math-weak logicians in charge of
justice.

[6] The declaration of invalidity made by this court in
Parker, supra, does not delete marihuana from Schedule ii of
the CDSA.

JCT: Good. He's going to tell us how the cops are going to
know that the marijuana possession has been declared invalid.

CR: It simply declares that the reference to marihuana in
schedule ii is of no force or effect for the purposes of the
possession charge in s. 4 of the CDSA.

JCT: So it simply declares it and all the cops are going to
know without printing a new Criminal Code. Justice in
Wonderland. Har har har har. Justices Doherty, Goudge and
Simmons wrote this! Har har har har. And it resulted in the
deaths of over 10,000 extra epileptics in the past 7 years
that their grand-children will grasp even if they're too
logic-impaired to appreciate how everyone will one day judge
them to be genocidal monsters or lawying idiots.

CR: The declaration does not extend to any other section of
the CDSA.

JCT: Actually, these judges who expect lower judges to remember which
written laws count and which do not, forgot the Parker Court
also ruled cultivation prohibition was a violation of the
right to life too. Har har har.

CR: particular, it does not diminish the effect of the listing
of marihuana in Schedule ii for the purposes of s. 5(2) of the
CDSA. (emphasis added)

JCT: As long as you accept that the possession prohibition can
be invalidated without removing it from the list of banned
substances or adding "except marijuana" to the Criminal Code.
No matter how you cut it, these court klutzes are saying the
prohibition can be invalidated without doing anything! Har har
har har. Lawying shysters, all of them.

CR: 30. Because declarations of invalidity do not have the
effect of deleting provisions from the CDSA, ss. 4 (addressed
in Parker, supra) and 7 (addressed in Krieger, infra) of that
statute remain in place and in force.

JCT: Because declarations of invalidity do not change
anything from the CDSA??? Har har har.

CR: Parliament had no obligation to "re-enact" them because
they were never removed.

JCT: That's right. They changed nothing to invalidate the
prohibitions. Judges will find out and remember what's changed
in reality that hasn't changed in the Code. Which explains the
400,000 bogus convictions we're going to spend the next few
years over-turning. Just because no victims were smart enough
to try to overturn their convictions from the Parker-Hitzig 2-
year period of invalidity when my request to expunge the
bogus convictions for all was rejected by the SCC, it doesn't
mean they're not smart enough now with the Parker-Beren 6-year
period of invalidity. Actually, the avalanche of late appeals
is just starting.

CR: Furthermore. Declarations of invalidity of one marihuana-
related provision to not extend to all marihuana-related
provisions

JCT: Unless the word had to come off the list when they failed
to add "except marijuana" to the prohibitions. That's still
moot. We have never had a 5-judge panel look into that
ridiculously funny ruling.

CR: B. The Krieger decision did not invalidate the marihuana
prohibition

JCT: Being from Ontario, he can accept that the Ontario Court
of Appeal did invalidate possession, but he can't accept that
the little Alberta Court of Appeal did invalidate production.

CR: 31. The Applicant's assertion that the Alberta decisions
in R. v. Krieger have invalidated the entire marihuana
prohibition is also fundamentally misconceived.

32. In R. v. Krieger Justice Acton of the Alberta Court of
Queen's Bench held that, because Mr. Krieger used marihuana to
alleviate his suffering from multiple sclerosis, the
cultivation prohibition in s. 7(1) of the CDSA infringed his
s. 7 Charter rights to liberty and security of the person.
Justice Acton was considering the same regime as in Parker,
where the only exemption available for medical marihuana users
was a ministerial exemption under s. 56 of the Act. Justice
Acton accordingly held that s. 7(1) was of no force or effect
to the extent that it dealt with marihuana production. She
suspended the period of invalidity for one year to give the
federal government time to arrange for a legal source of
marihuana for therapeutic use.

33. The Alberta Court of Appeal later extended the suspension
of the declaration "until further order of the Court". That
suspension has never been lifted, presumably because

JCT: "presumably because?" Because you can't file a motion
once the Final Order is made and the file is closed and the
court is functus officio. So all you have to do is pretend you
don't know what functus officio means, that the stay pending
appeal somehow survived the Final Order and needs to be
lifted though there is no process to lift it. So rather than
acknowledge the truth, he comes up with a presumption on why
Krieger didn't life the stay to let his Acton victory take
effect:

CR: presumably because the Parker and Hitzig line of cases in
Ontario, supra, resulted in federal regulations (the MMAR)
that allowed for lawful access to marihuana for therapeutic
use. The constitutional defect found by Justice Acton in s.
7(1) of the CDSA was therefore remedied, rendering both the
declaration and the suspension moot.

JCT: Krieger found he could get supply for himself so he
was no longer interested in invalidating the cultivation
prohibition for everyone? His lawyer, sure, but I doubt
Krieger was happy to settle for his little patch after he had
won patches for everyone else.

CR: 34. Leaving aside the fact that the Krieger decision only
ever had binding in the province of Alberta,

JCT: The Parker Ontario Court of Appeal invalidation of
possession was binding on Canada (4000 charges dropped
everywhere) but the Krieger Alberta Court of Appeal
invalidation of cultivation was binding only in Alberta. Why
is OCA more powerful than ACA?

CR: it also only ever affected s. 7(1) of the CDSA and, as
Justice Acton was careful to state, only to the extent that
that it dealt with marihuana production.

JCT: But which Crown David Frankel and the Supreme Court of
Canada summary notes "cultivation, and by implication,
possession" are involved.

CR: Per Turmel (2003), supra, Krieger therefore never had any
effect on the constitutionality of any other provisions in the
CDSA dealing with marihuana.

JCT: Alberta Court of Appeal invalidation of S.7 cultivation
took effect Mar 18 2003 when the file was closed by the
further final order. The Crown failed to obtain a S.65 Supreme
Court of Canada stay pending leave to appeal prefering to
argue that the Final Order is not a Further Order.

CR: 35. An example of a recent prosecution for production of
marihuana is a case cited by the Applicant: R. v. Beren. In
that case the accused, Beren, was convicted of marihuana
production under section 7 of the CDSA and trafficking
marihuana under section 5(1) of the CDSA. While Madam Justice
Koenigsberg considered the MMAR's constitutionality in detail
she did not have any difficulty with the existence of the
cultivation prohibition under s. 7(1) CDSA.

JCT: Kirk Tousaw didn't ask for the McAllister JP relief.
Remember that last line in the JP decision:
"[33]... the prohibition against possession of marihuana in
s.4 is in force when there is a constitutionally acceptable
medical exemption in force."

CR: 36. In any event, as noted above the Court of Appeal for
Ontario held in its post-Krieger decision in Turmel (2007),
supra, the offence of possession of marihuana for the purpose
of trafficking is known to lawn (it certainly did not have to
be re-enacted post Parker, Hitzig and Krieger):

JCT: In 2003 I argued the Parker invalidation of possession
made "for the purpose" invalid too and then in 2007, I did
another Prohibition application on the grounds the Krieger
invalidation of cultivation and possession made "for the
purpose" invalid too.

[2] The appeal is premised on the argument that possession for
the purpose of trafficking is not an offence known to law. Mr.
Turmel's enthusiastic arguments face an insurmountable hurdle.
This court has already rejected these types of arguments (see
Turmel (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) and Hitzig v.
Canada (2003), 177 C.C.C. (3d) 449 (Ont. C.A.)) and concluded
that these offences remained in full force and effect. This
applies at the time the appellant is alleged to have committed
them.

JCT: But the 2007 appeal was not dismissed for this reason, it
was dismissed for lack of 5-judge panel to have jurisdiction
to challenge the J.P. and Turmel Court of Appeal rulings and
their 3-judge opinion lacked a full quorum. One of the two
extra judges might have passed math!

CR: C. Sfetkopoulos and Beren have not invalidated the
marihuana prohibition

37. The Applicant also relies on the decisions of the Federal
Court and federal Court of Appeal in Sfetkopoulos v. Canada
and on the decision of the British Columbia Superior Court in
R. v. Beren. For the reasons that follow, these decisions did
not help him.

Sfetkopoulos.

38. Sfetkopoulos was a civil application for declaratory
relief in the Federal Court. On January 10, 2008 Justice
Strayer of that court found that the MMAR still did not
adequately address the question of lawful supply.

JCT: JP[33]: the prohibition against possession of marihuana
in s. 4 is in force when there is a constitutionally
acceptable medical exemption in force.

CR: His choice of remedy was declared to be invalid s. 41)b.1)
of the MMAR, the successor provision to s. 41(b), which
prohibited the holder of a production licence from growing for
more than one ATP holder.

JCT: Just like the Hitzig decision found S.41(b.1) made the
MMAR exemption deficient!

CR: Justice Strayer did not suspend the declaration on
invalidity. Most importantly, Justice Strayer did not declare
the marihuana prohibition in Section 4(1) of the CDSA to be of
no force or effect.

JCT: That's right. Alan Young didn't ask the McAllister
question in JP: Is the prohibition against possession of
marihuana in s. 4 in force when there is a constitutionally
acceptable medical exemption in force?

JCT: Neat eh, all I did was take the is from the middle and
put it at the beginning and the JP conclusion becomes the
McAllister Question. So after proving the medical exemption
had not been in force, Alan Young forgot to ask that the
prohibition also be declared not in force. So Kirk Tousaw
forgot to ask the McAllister question? We are. If it won for
McAllister, and if it's feared by Crown Attorney Sean Gaudet,
we're asking it too. And you can point to a thousand lawying
shysters who forgot to ask and it matters not a whit.

CR: His ruling only had the effect of permitting the holder of
a production licence under the MMAR to grow for more than one
ATP holder. It still presupposes a production licence and an
ATP.

JCT: His ruling had that eventual effect but it also had the
initial JP effect when "the prohibition against possession of
marihuana in s. 4 is not in force when there is not a
constitutionally acceptable medical exemption in force."

CR: 39. On March 19, 2008 Chief Justice Richard of the Federal
Court of Appeal granted a stay of the Justice Strayer's
declaration of invalidity of s. 41(b.1) of the MMAR pending
the hearing of the appeal. This stay of the declaration of
invalidity of s. 41(b.1) of the MMAR was in force at the time
of the Applicant's arrest on August 10, 2008.

CR: 40. On October 27, 2008 the Federal Court of Appeal upheld
the decision of Justice Stayer and refused to grant the Crown
a further suspension of the declaration of invalidity of s.
41(b.1) of the MMAR.

41. In express response to Sfetkopoulos paragraph 41(b.1) of
the MMAR was amended effective May 14, 2009 to permit the
holder of a production licence to grow up to two ATP holders.

JCT: So, S.41(b.1) was found in Hitzig to have made the
exemption deficient between July 31 2001 and Oct 7 2003 when
it was fixed until it was re-introduced to make the exemption
deficient on Dec 3 2003 until May 14 2009. And since the MMAR
was deficient by S.41, the prohibition was invalid during the
same interval.

CR: Beren.

42. R. v. Beren is a decision of Justice Koenigsberg of the
British Columbia Superior Court in a prosecution for
production (s. 7 CDSA) and trafficking in marihuana (s. 5(1)
CDSA). Citing and relying on Sfetkopoulos, Justice Koenigsberg
found that ss. 41(b.1) and 54.1 of the MMAR (the requirement
that a holder of a production licence grow only for one ATP-
holder and the requirement that not more than three holders of
production licence can grow in common) infringed s. 7 of the
Charter. She did not strike down any section of the CDSA but
in fact relied upon the marihuana prohibitions in the CDSA.

43. Justice Koenigsberg suspended her finding of invalidity of
ss. 41(b.1) and 54.1 of the MMAR for one year. She later
extended that suspension until March 3, 2010, after which
dated it expired. In express response to Beren paragraphs 54.1
of the MMAR was repealed and new provisions were enacted
effective March 11, 2010 to permit up to four production
licence holders to grow in common.

JCT: So, S.54.1 was found in Hitzig to have made the
exemption deficient between July 31 2001 and Oct 7 2003 when
it was fixed until it was re-introduced to make the exemption
deficient on Dec 3 2003 until Mar 3 2010. Let's face it, the
flaw in the MMAR was removed on Mar 3, not Mar 31 when the
unnecessary repeal was pronounced. So in a sense, Pallister
Day isn't Mar 31 when they repealed it but on Mar 3 when the
court invalidated it to be deemed repealed. And since the MMAR
was deficient by S.54, the prohibition was invalid during the
same interval.

CR: 44. It is important to note, however, that notwithstanding
her finding of invalidity, Justice Koenigsberg convicted Mr.
Beren:
[136] In relations to the charges against Mr. Beren, the
Crown, having proved beyond a reasonable doubt that Mr. Beren
was producing and trafficking in marijuana for the purpose of
supplying a compassion club, which in turn was selling the
marijuana to most of its members who did not have ATPs, and
thus were not licenced to possess which part of the MMAR I
have found to be valid, is guilty on both counts. (emphasis
added)

JCT: She wasn't asked the JP question when she ruled the
exemption didn't work, not that she refused it.

CR: The necessary implication of this

JCT: Since "implication" is all the Crown has, it sure is a
necessary implication that:

CR: is that Justice Koenigsberg intended her decision to apply
only to licenced holders of ATPs under the MMAR.

JCT: And he had a mind-reading machine connected to her head
at the time.

CR: As there is no evidence that the Applicant is a licenced
producer or ATP holder of that he has applied for a licence,
he does not fall within the scope of the Beren decision.

JCT: Assume this and you ignore facts. Anyway, it's pretty
hard to duck the Gaudet Goodie and the Wilson Weakness just by
ducking them. The Crown worried courts would be asked the JP
question "Is the prohibition against possession of marihuana
in s. 4 in force when there is a constitutionally acceptable
medical exemption in force?" in case they got the JP answer:
"the prohibition against possession of marihuana in s. 4 is
not in force when there is not a constitutionally acceptable
medical exemption in force." Wow, isn't that smooth.

CR: D. The prosecution of marihuana offences is not an abuse
of process

45. As discussed above, and in reviewing the authorities, it
is respectfully submitted that the prosecution of the
marihuana prohibition is not an abuse of process and there is
no authority that the marihuana prohibition itself, as opposed
to certain discrete regulations, is of no force or effect. The
situation is best summarized by Prothonotary Aalto in Pearson,
[Ethier and Hoad] v. Canada:
"15 Rather than striking down section 4 of the CDSA, the court
in Hitzig declared certain provisions of the MMAR to be of no
force or effect (at para. 176). The general prohibition on
personal possession and use was, therefore, undisturbed by the
ruling in Hitzig.

JCT: Wishful thinking. Sean Gaudet says the prohibition was
disturbed for 2 years.

CR: "16. In the wake of Hitzig, amendments to the MMAR were
issued by the Governor-in- Council (see SOR/2003-387). These
amendments are subject of the ongoing litigation before the
Federal Court. On January 10, 2008, Deputy Judge Strayer held
that certain post-Hitzig amendments to the MMAR to be
unconstitutional (Sfetkopoulos v. R. (Attorney General),
[2008] F.C.J. No. 6, 2008 FC 33). However, the remedy granted
by Deputy Judge Strayer was to find section 41(b.1) of the
MMAR of no force or effect (at para. 25). Deputy Judge
Strayer's decision was stayed by Chief Justice Richard pending
the full hearing of the appeal before the Federal Court of
Appeal (see Canada (Attorney General) v. Sfetkopoulos, [2008]
F.C.J. No. 448, 2008 FCA 106). However, nothing in the
Sfetkopoulos decision suggests that section 4 of the CDSA is
of no force or effect.

JCT: Only because Alan Young was too stupid or too crooked to
ask.

CR: "17. In sum, while the earlier medical marihuana
jurisprudence (Parker, supra) did challenge the constitutional
validity of section 4 of the CDSA, the cases have shifted
their focus to the operation of the medical marihuana supply
regime codified under the MMAR. And while the skirmishes
concerning the MMAR are ongoing, none of the jurisprudence
concerning the MMAR has attacked the underlying validity of
section 4 of the CDSA."

JCT: Because the lawyers were to crooked or too stupid to ask.

CR: E. There is no basis to hold the Minister of Justice in
contempt

46. There is no basis in fact or law to hold the Minister of
Justice in contempt of court. Additionally, there are no
proceedings involving the Minister of Justice before this
Court.

JCT: Refusal to reprint the Criminal Code seems contemptuous.

CR: F. Other grounds of relief requested by the Applicant in
the main application

47. There are no grounds in fact or law to make any other
orders requested by the applicant in the prohibition
application. The request for relief are in the nature of
"public interest litigation" involving past criminal cases,
other persons and are beyond the scope of matters that could
be considered by any court in a rational system. They are an
abuse of process of this court.

Part iii: Order requested

48. An Order dismissing the Applicant's prohibition
application summarily, without a hearing, on the record,
pursuant to section 6.11 of the rules respecting Criminal
Proceedings.

49. In the alternative, an Order dismissing the Applicant's
prohibition application with prejudice.

48. Such further and other relief as council may advise and
this Honourable Court permit

Dated at Ottawa, Ontario this 28th day of May, 2010
Steve White

JCT: Pretty nothing. Ignored the Gaudet statement like it was
a curse. And the Wilson statement even though the gist is
there. Anyway, nothing


Court File No. CR-10-06-MO

In the Superior Court of Justice

Between:
Michel D. Ethier
Applicant
(respondent on this application)
And
Her Majesty the Queen
Respondent
(applicant on this application)
Notice of Application
(Criminal Proceeding Rules, Form 1)

TAKE NOTICE that the Respondent Crown is applying to the
Registrar and the Court for an Order dismissing the
Applicant's Application for prohibition summarily and on the
record as frivolous and vexatious pursuant to Section 6.11 of
the Criminal Proceedings Rules.

JCT: And if the judge doesn't find the Gaudet Goodie funny:

CR: TAKE NOTICE that in the event the Court declines to make
such an Order an Application will be brought on Wednesday, the
16th day of June, 2010 at 9:30a.m. or so soon thereafter as
the matter can be heard for an Order summarily dismissing the
Applicant's Application without a further hearing of the Court
and with prejudice.

JCT: So if it's not dismissed without a hearing, it should be
dismissed without a hearing? I guess it can't hurt to ask
twice, especially if you run into a judge who doesn't notice
they're the same and might say yes the second time around just
trying to balance the justice!

CR: THE GROUNDS FOR THE APPLICATION ARE:

1. The Applicant (respondent in this application) Mr. Ethier,
has brought an application for prohibition in this court
because he is facing criminal charges in the Ontario Court of
Justice; his notice of Application for Prohibition is in
relation to "Provincial Court File # 984-08."

2. The Applicant's Application for prohibition is frivolous
and vexatious. He has brought the same prohibition application
to halt the Bracebridge OCJ prosecution in the Federal Court.
It has been ruled to be an abuse of process by the Federal
Court. A Prothonotary and two superior court judges have
considered the matter. The Applicant has appealed to the
Federal Court of Appeal but is facing a status check because
he has delayed in perfecting his appeal.

JCT: That's because they had no jurisdiction, not because Sean
Gaudet isn't right that JP says: "the prohibition against
possession of marihuana in s. 4 is in force when there is a
constitutionally acceptable medical exemption in force."

CR: 3. The Applicant's request for relief in his prohibition
application is more suited and appropriate for the trial court
that will consider his case and, indeed, determine if he has a
case to meet.

JCT: Luckily, he can do that later too.

CR: 4. The question of the validity of the charge or the
sufficiency of an information has traditionally been matters
for the trial court to determine.

JCT: Traditionally, the Crown doesn't screw up to the tune of
4000 charges dropped in one shot amid a hundred thousand bogus
convictions and now faces more of the same.

CR: 5. The Applicant in his prohibition application has not
requested this Court to grant him a remedy pursuant to section
52 of the Constitution or Section 24(1) of the Charter.

JCT: That's right, JP is not a constitutional question and
seeks no remedy pursuant to S.52 or S.24.

CR: Even if he had done so there are no exceptional
circumstances requiring the Court to grant immediate relief to
the Applicant on is application.

JCT: Actually, had he done so, (claiming violation of a
charter right), he would have cited a Charter right which he
has done. So if he's not claiming a Charter right, gee, I
guess it really is not a constitutional motion.

CR: The Applicant has had two trial dates available to him to
bring any applications before the Ontario Court of Justice and
now has a further trial date on October 26, 2010.

JCT: And the trial judge doesn't have jurisdiction to grant
declarations.

CR: 7. The Applicant does not have standing as a "public
interest litigant" to argue for broad forms of relief as
outlined in this application. Particularly, there are other
forums available for other persons to argue these issues
including the courts.

JCT: Yes, they want him to argue criminal rules in civil
court. Har har har har.

CR: 6. The marihuana prohibition under Section 4(1) of the
Controlled Drugs and Substances Act is in full force and
effect.

JCT: Except for the 2 years Hitzig says the MMAR wasn't
working and the past 6 years Sfetkopoulos and Beren say the
MMAR wasn't working again. But if he keeps repeating it, maybe
it'll come true.

CR: Parliament was not required to re-enact through
legislation the marihuana prohibition after R. v. Parker.

JCT: When courts strike down bad laws, nothing needs be done.
Judges will remember which written laws don't really count.
It's called the strict interpretation of criminal statutes.
Har har har har.

CR: This is clear from the cases in Hitzig v. Canada, R. v.
Turmel and R. v. Long. The Parker declaration of invalidity
was only in force from July 31, 2001 to October 7, 2003.

JCT: If you believe the courts can unrepeal laws that are
deemed to be repealed pursuant to Parliament's Interpretation
Act and not the JP resurrection opinion.

CR: 7. The marihuana prohibition has been upheld by the
Supreme Court of Canada in R. v. Malmo-Levine; R. v Caine, R.
v. Clay; the Ontario Court of Appeal in Hitzig v. Canada; the
British Columbia Court of Appeal in R. v. Kubby, the Ontario
Superior Court in R. v. Long and the British Columbia Superior
Court in  R. v. Poelzer.

JCT: Yes, let's stress how no one else asked the McAllister
Question "Is the prohibition against possession of
marihuana in s. 4 in force when there is a constitutionally
acceptable medical exemption in force?"

CR: 8. There is no controlling authority that has struck down
or declared of no force or effect the marihuana prohibition
under section 4(1) of the Controlled Drugs and Substances Act.

JCT: Parker did that pursuant to the Interpretation Act.
Notice how the JP court invented the resurrection of the law
after it being only absent and how these Crowns parrot the
corrupt rationale like it was gospel.

CR: The last such case was R. v. Long (at the trial level-
Ontario Court of Justice) which was overturned on a summary
conviction appeal.

JCT: A completely off-topic useless case and not even referred
to in the written representations. I've parsed it and it has
ever been used by anyone before.

CR: 9. It has always been open to the Applicant to bring an
Application to the Ontario Court of Justice, on a proper
record, requesting a ruling under Section 52 of the
Constitution Act or section 24(1) of the Charter. To ask other
Courts to make such a findings by way of a prohibition
application without a proper record is respectfully an abuse
of the process of the Court.

JCT: Surprise, if he gets before his trial judge, he's still
not going to try to declare the law unconstitutional which
Parker has already done; he's going to try to declare the
prohibition as "no longer known to law." It's pretty clear
that this guys practicing to be a judge so he can make the
S.601 mistake like they all do.

CR: 10. The Respondent (applicant for this application) relies
on Section 6.11 of the Rules respecting Criminal Proceedings.

11. Such further and other grounds as counsel may advise and
this Honourable Court may permit.

In support of this application, the Respondent (applicant on
this application) relies upon the following:

1. The Within Application.
2. The Respondent's Application Record.
3. The Respondent's factum.

JCT: There's a factum too?

CR: 4. The Respondent's Book of Authorities and Condensed
Book.
5. Such further and other material as counsel may advise and
this Honourable Court permit.

The relief sought is:

1. An Order allowing this Application and dismissing the
Applicant's application for prohibition summarily on the
record and without a hearing.
2. In the alternative, an Order dismissing the Applicant's
application for prohibition.

JCT: He wants dismissal without dealing with it or dismissal
without dealing with it (in case the judge says no the first
time and wants to balance with a yes the second.)

CR: The Respondent (applicant on this application) may be
served with documents pertinent to this application:

1. By service in accordance with rule 5, through Steven A.
White, counsel, Public Prosecution Service of Canada, 160
Elgin Street, Suite 800, K1A 0H8 Tel: (613) 957-4793 Fax (613)
957-9043.
Dated at Ottawa, Ontario, this 27th day of May, 2010.
Steven A. white

JCT: So the Crown raises an incredible number of red herrings
in its attempt to ignore the Gaudet Goodie. Sad effort in
lawying thinking.

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