JCT: Terry Parker, who won the original invalidation of the
marijuana prohibition in Canada before Alan Young won its
revalidation, had his marijuana seized by Canada Post and he
filed a Section 24 application for the return of his
controlled substance.

     The Crown argued that his exemption expired at some point in
the past and that he should go doctor-shopping since there
are some doctors in Ontario who will sign though the most
will not,

     For a whole slew of reasons, Terry argued that he was
still exempted from the possession offence, though they were
rejected by Provincial Court of Justice Judge Clements.
     On March 28, we appeared before Superior Court of
Justice Judge Tulloch who let me explain Terry's position.
     On June 13, we appeared before Superior Court of
Justice Judge Durno who would not let me explain Terry's
position despite Terry explaining I'd helped him right up to
the Ontario Court of Appeal for the past 7 years.
     Some grounds we have given up and dropped and here is
the factum for the arguments Parker has not given up. The
Crown files their Factum in 30 days. Then a hearing before
Justice Durno on Aug. 8 2008 to set a date for the appeal.

File No. #SCA(F) 2484/08
Between:
                   Her Majesty the Queen
                                                  Respondent
                            and
                      Terrance Parker
                                                   Appellant

PART I - STATEMENT OF THE CASE

 

1. This is an appeal of the dismissal by Judge Clements of
the Ontario Court of Justice of an application
- under Section 136 of the Courts of Justice Act for
approval of the manner of tape recording the proceedings for
Applicant's personal notes;
- under Section 24 of the C.D.S.A. for the return of a
seized controlled substance by Terrance Parker whose
legitimate medical use of marijuana for epilepsy has been
acknowledged by the Ontario Court of Appeal in R. v. Parker
and the Ministry of Health.

PART II - SUMMARY OF THE FACTS

2. On or about April 24, 2006, Canada Post searched the
Applicant's mail and discovered a package of marijuana which
Canada Post delivered to Peel Regional Police.

3. The Department of Justice concluded the marijuana could
not be returned because:
1) the applicant's exemption existed prior to the new
medical marijuana regulations;
2) Applicant's constitutional exemption lapsed in 2004;
3) Applicant did not have a current exemption under the new
rules.

4. On June 2 2006, Terrance Parker filed a S.24 application
for the return of the marijuana upon five grounds, four of
which are:
2) Justice Pitt's criminal court extension of constitutional
exemption granted by Ontario Court of Appeal remains valid
despite being set aside as a "default judgment" pursuant to
the Rules of Civil Procedure for improper service. Justice
Chapnik sitting as a Justice of the same court as Justice
Pitt had no jurisdiction to interfere with his judgment and
using civil procedure to set aside a criminal court remedy
is inappropriate.
3) S.4 possession prohibition remains repealed pursuant to
the S.2.2 of the Interpretation Act once declared invalid by
the Parker Court of Appeal in 2001 despite S.4 being
resurrected by the Hitzig Court of Appeal for only being
being absent, not repealed, once invalidated by the Court.
4) S.7 cultivation prohibition and by implication S.4
possession prohibition remain repealed pursuant to the S.2.2
of the Interpretation Act once declared invalid by the
Krieger Court of Appeal of Alberta in 2002.
5) By the MMAR failing to mandate that Parker's doctor
participate in the government's exemption program, physician
participation is not effective and the S.7 cultivation and
S.4 possession prohibitions cannot apply to Parker because
he grandfathered exemption for the sick.

5. Judge Clements ruled that:
1) approval of the manner of tape recording to be denied;
2) he was bound by the Ontario Court of Appeal to conclude
that setting aside of a criminal remedy in civil court by an
equivalent judge had been confirmed as appropriate by the
Ontario Court of Appeal;
3) he was bound to accept that the possession prohibition
which had been struck down by the Ontario Court of Appeal in
Parker in 2001 had been resurrected by the Ontario Court of
Appeal in Hitzig in 2003;
4) he was bound to accept that the cultivation prohibition
which had been struck down by the Alberta Court of Appeal in
Krieger in 2002 would have been resurrected by the Ontario
Court of Appeal in Hitzig in 2003 and so it was.
5) the lack of physician participation did not render the
regulations ineffective.

PART III - ISSUES AND THE LAW

UNOBTRUSIVE TAPE RECORDING NOT PROHIBITED
6. In the late 1980s, the section on tape recording read:
"Nothing prohibits a party from unobtrusively tape recording
for one's personal notes." In later years, "in a manner
approved by the court" was added. Though the judge may
prohibit a manner of taping, the judge may not prohibit
taping itself. Offering transcripts several months down the
road is no substitute for recordings available right away.
Yet many judges think prohibiting a manner of taping allows
them to prohibit taping. It does not.

 

CHAPNIK J. HAD NO POWER TO SET ASIDE PITT J.
7. The Pitt decision extending the criminal jurisdiction
exemption granted by the Ontario Court of Appeal cannot be
set aside pursuant to the Rules of Civil Procedure as a
default judgment nor for improper service when, pursuant to
the "General Powers of the Court" under Section 3.02(1) of
the Criminal Proceedings Rules, a court may extend or
abridge any prescribed time. If the court may dispense with
service altogether, improper service is not possible. And
confirmation of a decision that goes beyond the jurisdiction
of the court even by a higher court does not grant
jurisdiction to the court.
8. Judge Clements noted that the first remedy claimed by
Parker which had not been dealt with by Justice Pitt for a
declaration that that possession prohibition had become
invalid on Terry Parker Day required a constitutional
challenge. That's wrong. Parker had already won his
constitutional challenge to prove the law was
unconstitutional in 2000, he was now only asking for the
declaration that the Parker invalidation had taken effect on
Terry Parker Day Aug. 1 2001. But because Chapnik J. thought
the issue Pitt J. refused to deal with requires a
constitutional challenge, she set aside the issue that Pitt
J. actually did deal with.

 

HITZIG COURT HAD NO POWER TO OVERRULE PARKER
9. When asked where the Hitzig court got the power to
resurrect a statute that's been struck down, Crown Greg
Smith in R. v. Nielsen et al is the only Crown Attorney to
ever explain that though there was no written authority, the
court wouldn't do it if it couldn't do it so it can do it.
The Hitzig Court did not have the authority to order courts
in Canada to ignore the Interpretation Act that a statute
declared of no force and effect was to be deemed repealed
and to follow their order that such statute was to be deemed
merely absent or inoperative, not repealed. until fixed.
Only Parliament can legislation a statute that has been
struck down yet the Crown accepted the prohibition did not
cease to have effect when declared of no force and effect by
the Parker Court, it was simply "inoperative" until fixed by
the Courts, not Parliament.

10. John Turmel applied for 5 judges necessary in an appeal
to challenge the Hitzig resurrection by 3 judges of the
statute which had been struck down. Chief Justice McMurtry
denied the application and then the appeal was dismissed for
lack of 5 judges to overrule the three Hitzig judges so the
Hitzig resurrection has never been challenged in the courts.

 

HITZIG COURT HAD NO POWER TO OVERRULE KRIEGER
11. The Hitzig Court of Appeal could not resurrect the
Section 7 cultivation prohibition, and by implication,
section 4 possession, which had been struck down by the
Alberta Court of Appeal in 2002. Though Judge Clements held
he was bound by Hitzig to treat the struck down legislation
has having been resurrected, no one is bound by bad law.
Still, no matter what other courts say, the judge was bound
by the new legislation of the Ontario Court of Appeal.

 

PHYSICIAN PARTICIPATION INEFFECTIVE
12. The Court of Appeal ruled it is reasonable for the state
to insist upon doctors being in charge despite tons of
anecdotal evidence few physicians participate because their
associations warn them not to. The Court admits that if
physician co-operation drops to the point where it becomes
ineffective. the issue could be revisited. Still, the Court
ruled "there was a sufficient number so that it can not(1)
be said to be practically un(2)available." The weakness of
the Court's logic is evident by the need to use a double
negative to create the illusion that something may exist
which probably does not. For instance, "Doctor, can you
swear marijuana does not cause freckles?" "No, I've never
heard of it but I can't guaranteed marijuana does not cause
freckles." So marijuana causes freckles because doctors can
not(1) say that it does not(2) so it might. Doctors can
not(1) say that marijuana does not(2) cause athlete's foot
so it might. Doctors can not(1) say that marijuana does
not(2) cause baldness so it might. And the Hitzig Court of
Appeal can not(1) say it's practically un(2)available so it
is available! When the number of known epileptics (400,000)
who die of seizures every year (1500) is greater than the
number of exemptions for all illnesses (<1000), it can be
said that cooperation is at a point where the issue must be
revisited. Forcing the Appellant to doctor shop in an
environment where less than 1 in 100 doctors participate is
an ineffective regime. Accepting the Court's double negative
as an indication of sufficiency is logically unsound.

13. The judge construed the Court of Appeal's statement that
"Anyone who establishes medical need is simply exempt" means
who "anyone who gets an exemption is simply exempt." Yes
anyone who gets an exemption is exempt but anyone who
establishes medical need is too.

14. Though these issues were brought to the Supreme Court of
Canada and the dismissals and abandonments are noted in the
Appeal Book, they were never actually revisited.

PART IV - ORDER REQUESTED

15. Appellant seeks an Order under Section 24 of the CDSA
for the return of a controlled substance.

Dated at Toronto on Friday June 27 2008.
_______________________________
Terrance Parker
2209-55 Triller Ave.
Toronto, Ontario, M6R-2H6
Tel: 416.533.7756 Fax: 416.632.2334

Appeal Book

File No. #SCA(F) 2484/08                                 i
                  SUPERIOR COURT OF JUSTICE
                    (Criminal Division)
Between:
                   Her Majesty the Queen
                                                  Respondent
                            and
                      Terrance Parker
                                                   Appellant
                     TABLE OF CONTENTS
Volume 1 of 3
1. Notice of Appeal.....................................(1)
http://health.groups.yahoo.com/group/MedPot/message/2348

2. Order dated Mar 28 2008..............................(3)
3. Notice of Application to approve taping method.......(4)
4. Notice of S.24 Application for return of marijuana...(6)
5. Affidavit of Terrance Parker dated June 2 2006.......(8)
http://health.groups.yahoo.com/group/MedPot/message/2097

6. Applicant's Written Representations..............(13-55)
http://health.groups.yahoo.com/group/MedPot/message/2219

7. Respondent's Factum.............................(64-101)
http://health.groups.yahoo.com/group/MedPot/message/2233

8. Applicant's Reply..............................(102-114)
http://health.groups.yahoo.com/group/MedPot/message/2238
http://health.groups.yahoo.com/group/MedPot/message/2239

JCT: What an incredibly convoluted saga with the government
picking a fight with "the Terry Parker" by searching his
mail to seize his medicine and bring back the only really
high-profile case to challenge the
1) Hitzig Resurrection of the Section 4 possession offence
after its invalidation by the Parker decision,
2) Hitzig Resurrection of the Section 7 cultivation offence
after its invalidation by the Krieger decision,
3) illegitimate "setting-aside" of the Pitt decision,
4) court ruling that doctor-shopping at 100:1 odds against
finding one willing to participate is sufficiently "not
unavailable" to render the exemption system constitutional.

And of course, challenging the Hitzig Panel will take a 5
judge panel and the appeal can't win if the judge refuses to
allow a 5 judge panel so it gets right to the Supreme Court
on time next.

22nd time to the top lucky? You bet. What an adventure for
Parker. With George Soros picking up the tab to get Terry's
case declared a winner but them not going to collect the pot
and leaving the 4000 acquittals based on Parker for John The
Engineer to win. Har har har har. When I think of how George
Soros could have gone for the Terry Parker Day declaration
instead of Parker and me and Marc Paquette and collected on
the 4000 acquittals he financed but then failed to follow
through. Har har har har. Fore me to pick up for my mere
unemployed time.