#A Crown Factum for Terry Parker's Seized Pot Claim

JCT: If you'd like to read the Crown's Factum without my

comments, it's will be posted at

http://health.groups.yahoo.com/group/MedPot/files/tprepcm.txt

The Crown's Factum starts with a virtual rehash of their

arguments below at

http://health.groups.yahoo.com/group/MedPot/messages/2233

Parker's eventual Reply with our trump arguments are at

http://health.groups.yahoo.com/group/MedPot/messages/2238

But, once again, this is the main ongoing challenge to the

Hitzig decision and for the upholding of

the Parker and Krieger invalidations of the possession and

cultivation prohibitions until Parliament, not judges, bring

back new prohibitions once old once were knocked down, the

POLCOA issue. POLCOA is an acronym which can be googled

explaining how Parliament Only Legislations, Courts Only

Abrogate. It's the main argument being raised here.

So here's the Crown's Factum for the appeal against the

Clements decision refusing to return pot seized by Canada

Post to Terry Parker. The hearing will be slated by Justice

Durno on Aug. 8 2008, 10am in Brampton Court.

File No. #SCA(F) 2484/08

SUPERIOR COURT OF JUSTICE

(Criminal Division)

Between:

Terrance Parker

Appellant

and

Her Majesty the Queen

Respondent

RESPONDENT'S FACTUM

PART I - RESPONDENT'S STATEMENT AS TO FACTS

1. In this proceeding, the appellant, Terrance Parker, seeks

to challenge the Order of Justice Clements which denied his

application made, pursuant to Section 24 of the CDSA for the

return to him of marijuana that he claims is his and had

been discovered by Canada Post and seized by the police. The

Respondent opposes this application.

1. RESPONDENT'S POSITION ON APPLICANT'S STATEMENT OF FACT

2. The Respondent disagrees with the allegations of fact

contained in the Appellant's Written Representations.

2. ADDITIONAL FACTS RELIED UPON BY THE RESPONDENT

3. The Respondent relies on the following facts.

(a) R. v. Parker (Ontario Court of Appeal)

4. On Dec 10, 1997, Sheppard J. stayed proceedings..

concluded Appellant required marijuana to control epilepsy

and the prohibition against marijuana infringed on the

Appellant's rights under section 7 of the Charter. The judge

read into the legislation an exemption for persons

possessing or cultivating marijuana for their "personal

medically approved use."

5. On appeal, the Ontario Court of Appeal concluded...

Appellant needed marijuana to control his epilepsy and that

prohibition on the cultivation and possession of marihuana

was unconstitutional... The Court disagreed with Sheppard's

remedy of reading into the legislation an exemption for

medical use, stating that this was a matter for Parliament

to resolve. The Court, therefore, declared the prohibition

against possession of marijuana in subsection 4(1) of the

CDSA to be invalid, but suspended the declaration for one

year to provide the Government with an opportunity to

respond. In addition, the Court ordered that Parker is

"exempt from the marijuana prohibition in s.4 during the

period of suspended invalidity for possession of marijuana

for his medical needs. The Appellant knew that this

exemption applied for only twelve months.

(b) Marihuana Medical Access Regulations (MMAR)

6. In responding to the Ontario Court of Appeal's decision

in R. v. Parker, it was necessary for the Government of

Canada to strike a balance between the need to provide

authorized persons with access to marihuana for medical

purposes and the need to recognize existing federal

legislation and United Nations drug conventions and the lack

of evidence-based information as to the efficacy and safety

of this unapproved controlled substance. Accordingly, the

Government of Canada enacted, on July 30 2001, the

Government enacted the Marihuana Medical Access Regulations

(MMAR). The MMAR provided seriously ill persons with a

process by which they could obtain an authorization to

possess marijuana (ATP) and a personal-use-production

license (PPL) to permit the production for medical purposes

or a designated-person production license (DPL) to permit a

designated person to grow for an ATP holder. An ATP is

issued to persons ordinarily resident in Canada who, with

the advice and support of their medical practitioners, can

demonstrate medical need. A PPL or DPL permits the holder of

the license to, among other things, produce marijuana in

quantities up to a specified maximum.

(c) Health Canada's efforts to assist the Appellant

7. As noted above in R. v. Parker, the Ontario Court of

Appeal provided the government with twelve months, until

July 31 2001, within which to rectify the constitutional

invalidity identified by the court

JCT: And if they failed, what?

and provide the Appellant with a twelve-month exemption from

the prohibition on the possession of marijuana. At the end

of this twelve-month period, on July 30 2001, the MMAR were

enacted so as to cure the constitutional invalidity

identified by the Court of Appeal.

JCT: And if they failed, what?

The following day, on July 31, 2001, the Appellant's

constitutional exemption expired.

JCT: And the moment they failed to Parker from the

prohibition, the Order of invalidity took effect. On the day

after they failed, 12:01am Aug. 1 2001, TERRY PARKER DAY.

Thus, as of July 31 2001, the government and the Appellant

believed that the Appellant was once again subject to the

prohibition on the possession of marijuana.

JCT: Thus, as of July 31 2001, the government and the

Appellant believed that the Appellant was once again having

his rights violated by prohibition on the possession of

marijuana!!

8. Commencing on July 23 and Aug 8 2001, the Appellant began

to take steps to ensure that he would not be charged with

the offence of possession of marihuana. In particular, the

Appellant's counsel wrote to Health Canada to request that

the Appellant be granted an extension of his exemption from

the offence prohibiting the possession of marijuana.

JCT: Appellant's counsel didn't realize that when they

failed to protect Parker within 1 year and the Order

invalidating the possession prohibition took effect, Parker

didn't need protection. He only needed an admission that

they had failed to fix the flaw within the year.

What's fun is that George Soros funded Parker getting the

law declared invalid but then gave up before collecting the

pot leaving getting over 4000 people off the hook leaving

that honor to me, the King of the Paupers, for free.

9. On Sep 14, 2001, Health Canada notified the Appellant

that he had been granted, pursuant to S.56 of the CDSA, a

six-month exemption from the laws that prohibit the

possession of marijuana to give him an opportunity to apply

for an ATP exemption to expire on March 14 2002.

10. On Nov 14 2001, his lawyer Aaron Harnett reported to

Health Canada that Parker had found a neurologist and would

file. On cross-examination, Parker claimed the neurologist

was located not in Toronto but in Vancouver.

(d) Hitzig et al. v. Canada (Ontario Superior Court)

11. On March 13 2002, the day before the expiry of his

exemption, Appellant commenced an Ontario Superior Court

application requesting a continuation of his "constitutional

exemption from the offence of possession of marijuana and an

order "declaring prohibition of marijuana in the CDSA to be

of no force and effect."

JCT: They always omit the most important end words.

On March 15 2002, Pitt J. granted the Appellant his

requested extension of his "constitutional exemption" as

granted by the Ontario Court of Appeal.

JCT: For the record, the exemption granted by the Court of

Appeal was against criminal court prohibition and the

extension by Pitt of a criminal court remedy. was also a

criminal court remedy. Not civil. Keep this in mind.

The federal Crown then moved to set aside the order of

Justice Pitt. On April 19 2002, Chapnik J. set aside the

Order of Pitt J.

JCT: Pursuant to the Rules of Civil Procedure. civil court!

The Appellant then sought to appeal Chapnik and sought a

stay pending appeal. On May 3, 2002, Feldman J.A. refused

the request for a stay. On Feb 13 2003, the Supreme Court of

Canada dismissed the Appellant's application for leave to

appeal. On cross-examination, however, the Appellant stated

that he still believes that the Pitt J. decision continues

to authorize him to possess and cultivate marihuana, for the

reason that he believes that Chapnik J. did not legally set

aside the decision of Pitt J.

JCT: You can't set aside Superior Criminal Court remedy in

Superior Civil Court, only by 3 judges of the higher Court

of Appeal. You'd think judges would know this. Har har har.

12. The substantive issues raised by the Appellant's March

13 2002 application were heard together with two other

applications, one of which had been commenced by John Turmel

and Marc Paquette, and another which had been commenced by

Hitzig and others. In the fall of 2002, these three civil

applications concerning marijuana for medical reasons were

heard together by Lederman J. of the Ontario Superior Court

of Justice. On Jan 9 2003, Lederman concluded absence of

legal supply for authorized persons was inconsistent with

fundamental justice. Lederman declared the MMAR to be

unconstitutional and invalid on grounds the framework failed

to adequately resolve issues related to source and supply of

marijuana. However, Lederman J. suspended the declaration

for six months so as to permit the Government of Canada an

opportunity to amend the MMAR or otherwise provide for a

legal source of supply of marihuana for those persons

authorized to possess under the MMAR..

13. All parties appealed the decision of Lederman.

(e) Hitzig et al. v. Canada (Ontario Court of Appeal)

-----------------------------------------------------

14. On July 8 2003, pending the appeals of Lederman, Health

Canada developed policies to ensure the MMAR remained valid.

The MMAR provided an option for obtaining access to seeds

and dried marihuana.

15. While the parties waited for the appeals, Health Canada

continued to grant the Appellant, pursuant to S.56 of the

CDSA, exemptions so as to provide further opportunities to

apply for an ATP. On Oct 4 2002 Health Canada granted an

exemption from Oct 4 2002 to March 4 2003. On February 28

2003, Health Canada wrote to the Appellant to inform him

that he could apply for an extension of his exemption

pursuant to s.56 of the CDSA from the prohibition offence.

On March 23 2003, Health Canada wrote to the Appellant and

confirmed that Moldaver J.A. had ordered Health Canada to

provide the appellant with an extension of his s.56

exemption under the CDSA and accordingly Health Canada had

now granted the Appellant and additional exemption under

S.56 of the CDSA until May 30 2003. On May 23 2003, Health

Canada granted the Appellant an additional exemption

pursuant to s.56 of the CDSA from May 31 2003 until May 31

2004.

16. The Ontario Court of Appeal released its decision in the

Hitzig matter on Oct 7 2003. This decision contains rulings

in regard to three related appeals, one of which was

concerning Lederman J.'s ruling in respect of the

Appellant's March 13 2002 application (docket C39738). The

Court dismissed the Appellant's appeal and thus denied

Appellant's request that the court continue his personal

exemption. In addition, it dismissed the Appellant's

attempt to review the April 19 2002 decision of Chapnik J

(docket number 38113). The Court of Appeal determined that

the MMAR were constitutionally defective and insofar as they

did not provide for reasonable access to a legal source of

supply of marihuana for medical purposes, as some authorized

persons were dependent on illegal sources to obtain the

marihuana that the MMAR authorized them to possess. In

addition, the Court determined to be unconstitutional the

requirement for some applicants to have the support of a

second specialist to establish medical need. The Court

remedied the constitutional deficiencies it had

identified by declaring the following provisions of the MMAR

to be invalid.

a. the prohibition in subsection 34(2) against compensating

the holder of a DPL for growing marihuana and supplying it

to the holder of the ATP;

b. the provision in subsection 41(b) preventing a DPL holder

from growing marihuana for more than one ATP holder;

c. the prohibition in section 54 against DPL holders

producing marihuana in common with more than two other DPL

holders;

d. the provisions in paragraph 4(2)(c) and section 7

requiring a declaration by a second specialist.

17. As the Court remedied the deficiencies, the MMAR

continued to be constitutional

JCT: I'm sure I had a lot of fun in my other reply with

their saying that when the MMAR went from unconstitutional

to constitutional that it "continued to be constitutional."

It takes a legal education to get your brain to accept that

though it went from off to on, it "continues to be "on." Har

har har har.

and thus the prohibition on the possession of marijuana

under section 4 of the CDSA continued to be constitutional

as well:

JCT: Going from "off to on" is continuing to be "on."

[166] The declarations of invalidity we propose remove the

single unconstitutional barrier to eligibility and

sufficient barriers to supply that ATP holders will be

reasonably able to meet their medical needs from licit

sources. As a result, the MMAR as modified become a

constitutionally sound medical exemption to the marihuana

prohibition in s. 4 of the CDSA...

JCT: Becoming sound means "continuing to be sound?"

(f) Hitzig et al. v. Canada (Supreme Court of Canada)

-----------------------------------------------------

18. Hitzig and others sought leave to appeal. On May 6 2004,

their application for leave to appeal was dismissed by the

Supreme Court of Canada.

19. John Turmel's application for leave to appeal was

dismissed by the Supreme Court of Canada.

JCT: Their version of facts omits "as abandoned," "never

adjudicated." Hitzig was thrown on on the merits, never us.

20. On Nov 25 2005, the Appellant applied to the Supreme

Court of Canada for leave to appeal the Oct 7 2003 decision

of the Ontario Court of Appeal. On April 6, 2006, the

Supreme Court dismissed his application for leave to appeal.

The Appellant then requested a reconsideration of this April

6 2006 decision and on July 5 2006 the Supreme Court

dismissed the application for reconsideration.

(g) The Government's response to the Hitzig decision

----------------------------------------------------

21. The Government responded to the Ontario Court of Appeal

decision in Hitzig by amending the MMAR and continuing to

provide authorized persons access to marijuana and seeds.

22. During the period from July 1st 2005 to Nov 3, 2006, the

Marijuana Medical Access Division received, on average each

month, 75 new applications for authorization to possess, as

well as 78 renewal applications, for a total of 153

applications received every month. The average processing

time for an application is approximately 8 weeks inclusive

of follow-up with applications to complete and clarify

applications. As of Nov 3 2006, 1603 persons in Canada had

an ATP under the MMAR. Of these persons, 701 ordinarily

reside in Ontario and are supported by 431 practitioners

registered and entitled to practice the profession of

medicine in Ontario. Also, as of November 3 2006, 989

persons hold a Production license and 136 hold a DPL.

JCT: The odds against finding one of the 431 doctors out of

the more than 27,000 doctors in Ontario is about 1/62,

23. Over that same period, the Marijuana Medical Access

Division received an average of 37 applications for supply

of marijuana per month - approximately 21 of which are for

dried marihuana, 6 for marihuana seeds, and 10 for seeds

plus a four-month interim supply of dried marijuana. As of

Nov. 3 2006, 330 persons were receiving dried marijuana

under the provisions of the Supply Policy, and 243 persons

have received marijuana seeds. An additional 115 persons are

receiving a four-month interim supply of dried marijuana

pending harvest of their first crop from the seeds they

ordered from Health Canada. During the operation of the

Interim Supply Policy and the Supply Policy, only 85

authorized persons who have received dried marijuana from

Health Canada have returned product.

(h) The Appellant has not applied for an ATP under the MMAR

-----------------------------------------------------------

24. The Appellant has not been examined by a medical

specialist since 1997 and claims that he cannot "trust

neurologists when all they're interested in is lobectomy."

The Appellant has not approached any medical specialist for

assistance since 1997 but the Appellant unsuccessfully asked

his family physician for assistance. The Appellant has made

no attempts to find another doctor to support his

application to receive an ATP under the MMAR.

25. After the Ontario Court of Appeal released its decision

in Hitzig, the Appellant's exemption under s.56 of the CDSA

was due to expire on May 31 2004. Although the Appellant's

affidavit asserts he had not received notice that his

exemption would expire, on cross-examination he acknowledged

that he had been informed earlier that his exemption would

expire in May 2004. In anticipation of this expiration of

his exemption, on Feb 19 2004, the Appellant telephoned

Health Canada and indicated that he refused to find a doctor

to sign his application for an ATP. On cross-examination,

the Appellant stated that he could go to see a doctor, but

that he does not "want to worry about my brains coming out"

and objects to having "to go back to criminals to get

further assaulted," and objects to the MMAR requirement that

he provide medical authorization for the following reason:

"Well, I am upset.. As you can see, I've been kicked out of

school, college, jobs, got these seizures and now, I've got

to go back to these - these monsters for doctors to get

permission that they won't provide me. I mean, I'm sorry,

but this is disgusting."

3. DECISION OF THE COURT BELOW

26. The sole issue before the court below was whether the

Appellant was lawfully entitled to possess the marijuana

seized by Canada Post. The Appellant argued that he was

lawfully entitled to possess marijuana for the following

reasons:

1. The constitutional exemption granted by Justice Sheppard

in 1997 remains valid;

2. Justice Pitt J. granted an extension of constitutional

exemption granted by Ontario Court of Appeal and that

extension remains valid despite the Orders of Justice

Chapnik and Justice Feldman;

JCT: Twice, it's not Feldman, it's the whole court. Here's

how I had claimed it:

"Pitt J. criminal extension of constitutional exemption by

Ontario Court of Appeal remains valid despite being set

aside as a "default judgment" pursuant to the Rules of Civil

Procedure and for improper service to a court which may

dispense with any service at all.

3. There is no valid prohibition against possession of

marihuana because the provision, once declared invalid by

the Parker Court of Appeal in 2001, remains repealed

pursuant to section 2.2 of the Interpretation Act despite

the decision of the Court of Appeal in Hitzig.

JCT: Here's how I'd put it:

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 being declared of no force

and effect by the Parker Court.

4. There is no valid prohibition against cultivation, and by

implication possession, because the provision, once declared

invalid in the 2002 Alberta Court of Appeal decision in

Krieger, remains repealed pursuant to section 2.2 of the

Interpretation Act despite the decision of the Court of

Appeal in Hitzig.

5. "With the MMAR failing to mandate that Parker's doctor

participate in the government's exemption program, S.7

cultivation and S.4 possession prohibitions cannot apply to

Parker because he grandfathered exemption for the sick."

27. Justice Clements rejected each of the argument made by

the Appellant in the Court below:

JCT: Actually, several times he pleaded he was bound by the

higher-ups in the Hitzig decision so he didn't actually

reject the arguments, he just dismissed due to legal

doctrine of "stare decisis," "Obey higher orders."

(a) Justice Clements found that "there is no subsisting

Sheppard exemption, so-called, under Section 6(1) of the

Narcotic Control Act, which obviates the necessity for the

Applicant to comply with the MMAR.

(b) Justice Clements found that "the decision of Justice

Pitt was set aside and approved of on appeal. The Applicant

submissions amount to a collateral attack on the various

decisions that set aside and confirmed the setting aside of

the original Pitt order.

(c) Justice Clements found that the "Court of Appeal in

Hitzig determined that the prohibition against possession of

marijuana was, indeed, in full force and effect and the

ruling is binding on this Court."

(d) Justice Clements found that "the law in Ontario

JCT: The "judge-created" law in Ontario...

prohibits either the cultivation or possession unless

Applicant can bring himself within the criteria of those

regulations which have been constitutionally approved." He

stated "accordingly, I reject the argument that the judgment

in Krieger provides the Applicant with access to marijuana

without compliance with the MMAR.

JCT: If the law is gone, no need for an MMAR exemption.

(e) Justice Clements found that the Applicant was not

"grandfathered" into the MMAR, nor is he exempt from

complying with the MMAR. He found that the Applicant's

argument with respect to the access to physicians was based

primarily on anecdotal evidence whereas the Respondent

provide statistics indicating that the MMAR were working

well and effectively providing ill persons with the

marijuana they needed.

28. Justice Clements also considered the impact or import of

the decision of Judge Borenstein in R. v. Long [2007] O.J.

No. 2774 on the application before him. In Long, Justice

Borenstein found that Health Canada's Interim Supply Policy,

which is integral to the MMAR, was not sufficient to correct

the constitutional inadequacies identified by the Ontario

Court of Appeal in Hitzig because, in his view, a "policy"

is implemented at the discretion of the Minister, and may be

discontinued at the Minister's discretion.

29. Justice Clements accepted the Respondent's argument that the

decision in Long was wrong and should not be followed.

Justice Clements stated:

"The decision in Little Sisters supports the proposition

that the implementation of legislation may be

constitutionally accommodated by Ministerial discretion. It

would appear to follow that the implementation of a scheme

for access to licit supplies of marijuana could be done by

policy approved by regulation. That appears to be a

reasonable inference, given the fact that the supply of

licit marijuana must be maintained whatever the modality the

government chooses, otherwise the entire scheme becomes

unconstitutional for the reasons set out in Hitzig.

In the context of Hitzig, a permissive policy of supply

authorized by regulation is for all practical purposes

binding on the government unless or until they implement

another scheme providing for the licit supply of marijuana.

The obligation of the government to supply licit marijuana

must be distinguished from the methodology used to implement

the scheme. If the government fails to provide for the licit

supply of marijuana, then they arguably have contravened the

ruling in Hitzig with the result that the MMAR is likely

unconstitutional. The evidence in Long indicated the

government is maintaining a reasonable supply of marijuana

under its current policy.

PART II - POINTS IN ISSUE

-------------------------

30. According to the Appellant's written submissions, the

following are the points in issue in this appeal:

(a) Did Justice Clements err in denying the Appellant the

opportunity to tape record the proceedings?

(b) Did Justice Clements err in finding that he was bound by

the decision of Justice Feldman of the Ontario Court of

Appeal to conclude that the Order of Justice Pitt had been

properly set aside.

JCT: It wasn't one appeal judge who screwed up, it was 3!

(c) Did Justice Clements err in finding that the possession

prohibition which was declared invalid in Parker was valid

following the Ontario Court of Appeal in Hitzig?

JCT: Yes, can a law that's been struck down and abrogated by

the courts be struck up by the courts or does Parliament

have to do it? (c) is our POLCOA issue.

(d) Did Justice Clements err in finding that the cultivation

prohibition which was declared in invalid in Krieger was

valid following the decision of the Ontario Court of Appeal

in Hitzig?

JCT: POLCOA again. The bad law that the Alberta Court of

Appeal killed, could be be fixed and brought back to life by

the Ontario Court of Appeal? Keep in mind, B.C. Provincial

Court Justice Chen agreed with Ontario Provincial Justice

Phillips backed up by Ontario Superior Court Justice Rogin

that the Interpretation Act says that once a law is

abrogated by a court, it was to be deemed repealed and could

not be resuscitated other than by Parliament. POLCOA is the

acronym of the principle of Canadian jurisprudence these

justices seem to have not well learned or too easily

forgotten.

The Hitzig justices of the Ontario court of Appeal have now

ordered courts to consider that it the struck down

possession offences were not to be deemed repealed but only

deemed "absent" until fixed and resuscitated by the courts.

So it's lower-court "Obey the Interpretation Act" judges

Phillips, Rogin and Chen versus higher-court "Don't obey

Parliament's Interpretation Act" judges Doherty, Goudge and

Simmons and the bottom feeders who obey Hitzig and not

Parliament.

(e) Did Justice Clements err in rejecting the Appellant's

argument that the MMAR were ineffective due to the lack of

physician participation.

JCT: 1 in 60 doctors participate. If 1 in 60 bridges fell

down, engineers say "failure." When 1 in 60 patients find an

amenable-to-government-stress doctor, judges say "success."

31. The Appellant does not take issue with Justice Clements'

findings with respect to so-called Sheppard Exemption, nor

does he take issue with Justice Clements's decision not to

follow the decision of Justice Borenstein in R. v. Long.

JCT: I just wanted to know what was wrong with it. Remember

how the re-instatement by Health Canada of two of the

conditions struck down in Hitzig were hailed as a great card

until we heard the arguments trumping it in the Cornelssen

battles in Alberta.

PART III - SUBMISSIONS

32. The position of the Respondent in regard to the issues

raised by the Appellant are as follows:

1. DID JUSTICE CLEMENTS ERR IN FINDING THAT HE WAS BOUND BY

THE DECISION OF JUSTICE FELDMAN OF THE ONTARIO COURT OF

APPEAL TO CONCLUDE THAT THE ORDER OF JUSTICE PITT HAD BEEN

PROPERLY SET ASIDE.

33. Justice Clements had the authority to deny the Appellant

the opportunity to tape record the proceeding if he believed

the method of recording would be obtrusive.

JCT: That's not what he believed. He believed he had the

right to say no period because we got transcripts. No

arguments were made as to substituting any objectionable

method of taping with a less objectionable method. There was

no mention of the method of recording at all.

In any event, the Appellant has not demonstrated that he

suffered any prejudice as a result of this ruling,

JCT: It's obvious that having the information for immediate

discussion while everything is fresh in everyone's mind

would help.

and this Court cannot grant the Appellant any meaningful

remedy for the alleged error, and therefore the issue is

effectively moot.

JCT: Despite any meaningful remedy for the "alleged error,"

if the error is more than "alleged," a declaration that the

Judge Clements erred in refusing follow Section 136 of the

Courts of Justice Act so it does not happen again would be

remedy enough. Something so that tape-recording cannot be

banned unless it's somehow a bother to the administration of

justice. Otherwise, instant replay should be available to

everyone, even if I told lawyers about it 20 years again and

I'm still the only one doing it.

[continued...