#B Crown Factum for Terry Parker's Seized Pot Claim
 
2. JUSTICE CLEMENTS WAS CORRECT IN FINDING THAT HE WAS BOUND
BY THE DECISION OF JUSTICE FELDMAN OF THE ONTARIO COURT OF
APPEAL THAT THE ORDER OF JUSTICE PITT HAD BEEN PROPERLY SET
ASIDE.
 
JCT: And that's not what Justice Feldman was ruling on. It's
what the whole panel with Justices Doherty, Goudge, and
Simmons agreed. Justice Feldman was dealing with an
application for relief pending appeal. Clements knew he was
bound by the Ontario Court of Appeal decision, not the
Feldman decision.
 
34. The Appellant has submitted that "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."
 
JCT: The Pitt issue is the big one. A Superior Court Justice
granted Terry Parker an extension of his protection from the
"criminal prohibition," and the Criminal Rules of Practice
say he can only be overturned by way of appeal to three
Appellant judges. So Parker should have been protected the
whole time the battle to challenge Justice Pitt's decision
to extend protection was going on.
But they needed to have Pitt's statement "until the
government has complied with the Parker Court's ruling" out
of the way without having a fight over it so the Crown
applied under the Civil Rules to one equal Superior Court
judge to set the Pitt decision aside as an unconsidered,
unadjudicated "judgment by default."
Not only had Justice Pitt granted Terry the extended
protection but granted the request to abridge the time for
the application, (which any Superior Court Judge can do) and
granted the protection "ex parte," without the Crown showing
up.
Those three issues took a lot of thinking and for the Crown
tell Justice Chapnik she was setting aside a "default
judgment" just because the Crown failed to show up, is a
travesty.
 
35. The argument presented by the Appellant appears to be
based on a misunderstanding of the legal proceedings
subsequent to the decision of Pitt J. On April 19 2002
Chapnik J. set aside the order of Pitt J.
 
JCT: Remember, Civil Court set aside the order of Criminal
Court Order.
 
Justice Clements correctly noted that the Appellant had
exercised his right of appeal of the decision of Justice
Chapnik. The Court of Appeal ruled that Chapnik J. had made
no error when she set aside the Order of Justice Pitt.
 
JCT: The fact Justices Doherty, Goudge and Simmons of the
highest court in Ontario agreed that Civil Superior Court
made no error when she set aside the Criminal Superior Court
Order makes it all that much funnier.
 
As such, the Appellant's position on this issue amounts to a
collateral attack on the decision of the Ontario Court of
Appeal.
 
JCT: An attack to the Supreme Court of Canada on a silly
decision that I never bothered following up the last time
but which I now have to use since they started the fight by
seizing Terry's medicine and it's one of our best cards. I
always told Terry not to worry about prohibition while he
had the Pitt decision in his pocket until 3 higher judges
take the remedy away, not 3 higher judges agreeing that one
of his equal judges could take his remedy away.

 
(C) JUSTICE CLEMENTS MADE NO ERROR IN FINDING THAT THE
POSSESSION PROHIBITION WHICH WAS DECLARED INVALID IN PARKER
WAS VALID FOLLOWING THE ONTARIO COURT OF APPEAL IN HITZIG?
 
JCT: Ah, now we get into the important stuff for everyone
else. POLCOA,
 
36. The Appellant submitted that "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 section 4 being resurrected by the Hitzig Court
of Appeal for only being absent, not repealed, once
invalidated by the Court."
 
37. Section 2(2) of the Interpretation Act.
2(2) 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."
 
JCT: That's what Justices Phillips, Rogin and Chen said.
 
38. Thus it appears that the Appellant is presenting the
argument that once the Hitzig decision determined that the
MMAR were flawed, then the Interpretation Act deemed the
prohibition on the possession of marijuana in section 4 of
the CDSA to have been repealed and thus incapable of
"resurrection."
 
39. Again, the Appellant's argument appears to be based on a
misunderstanding of the order and reasons for decision of
the Court of Appeal in Hitzig. The reasons for decision of
the Court of Appeal clearly indicate that section 4 of the
CDSA was not repealed:
[166] The declarations of invalidity we propose remove the
single constitutional barrier to eligibility and sufficient
barriers to supply that ATP holders will be reasonably able
to meet their medical needs from licit sources.
 
JCT: On Oct 7 2003, two years too late after the law became
of no force and effect on Terry Parker Day Aug. 1 2001.
 
As a result, the MMAR as modified become a constitutionally
sound medical exemption to the marihuana prohibition in s.4
of the CDSA.
 
JCT: Two years after deadline.
 
[170]...
 
JCT: They dropped the start of the paragraph:
"First, if we do not suspend our order, there will
immediately be a constitutionally valid exemption in effect
and the marihuana prohibition in s. 4 of the CDSA will
immediately be constitutionally valid and of full force and
effect."
 
In R. v. Parker, supra, this court declared the
prohibition invalid as of July 31, 2001 if by that date the
Government had not enacted a constitutionally sound medical
exemption. Our decision in this case confirms that it did
not do so. Hence the marihuana prohibition in s. 4 has been
of no force or effect since July 31, 2001.
 
JCT: The Parker Court of Appeal said it was invalid. Here,
they Hitzig Court say it was of no force and effect after
July 31, 2001. They admit it was "of no force and effect."
 
Since the July 8, 2003 regulation did not address the
eligibility deficiency, that alone could not have cured the
problem. However, our order has the result of
constitutionalizing the medical exemption created by the
Government. As a result, the marihuana prohibition in s. 4
is no longer inconsistent with the provisions of the
Constitution. Although Parliament may subsequently choose to
change it, that prohibition is now no longer invalid, but is
of full force and effect.
 
JCT: And with those words, the Court say they brought back
to life a law which had been repealed according to S.2.2 of
the Interpretation Act.
 
Those who establish medical need are simply exempted from
it.
 
JCT: We had a big argument over this. I said that "Those who
establish medical need are simply exempted from it" and
Justice Clements presumed that to mean that "Those who
establish a medical need enough to get an exemption are
simply exempted. Kind of repetitive, isn't it. Of course, if
they have an exemption, they're exempted. But simply
exempted means simply, without Health Canada exemption, just
sick.
 
This consequence removes the cloud of uncertainty from
the marihuana prohibition in s. 4 of the CDSA - a cloud
which we were told in argument has created very considerable
confusion for courts and law enforcement agencies alike.
 
JCT: They also dropped the ending:
 
"A suspension of our remedy would simply have continued that
undesirable uncertainty for a further period of time."
 
JCT: The Court calls the period where the law was invalid,
repealed, of no force and effect, a period of "undesirable
uncertainty." The Parker Court declared the prohibition to
"undesirably uncertain." Har har har har.
 
[171] Second, in argument, counsel for the Government
strongly urged that if we found the MMAR to be
constitutionally flawed, we should be as precise as possible
in specifying the corrective measures to be taken. Our
remedy quite precisely determines the barriers in the MMAR
which, if removed, would render it a constitutionally sound
medical exemption to s. 4 of the CDSA. Our order represents
a minimal intrusion on the Government's scheme of medical
exemption. It leaves untouched the licensed possession
aspect of the scheme and modifies the licensed production
aspect of it only enough to make it constitutionally
acceptable.
 
JCT: Two years too late.
 
40. These passages from the decision in Hitzig clearly
reveal that the Court did not determine section 4 of the
CDSA to be an enactment that had been repealed.
 
JCT: Right, they said it wasn't repealed, it was only
"undesirably uncertain."

 
Instead, the Court determined that the marihuana prohibition
within section 4 of the CDSA was inoperative from July 31
2001 until October 7 2003
 
JCT: So the Parker Ruling that "section 4 is declared
invalid" really means "Section 4 is "inoperative."
 
but thereafter the prohibition continued to be operative.
 
JCT: It continued to be operative after being inoperative.
Interesting the way lawyers can bend their brains around the
truth. After going from off to on, it continued being on.
Lawyers and judges really are brain-damaged, something that
will no doubt amuse historians for generations to come.
 
This point has recently been confirmed by the Court of
appeal in response to a similar argument presented by Mr.
Turmel in which he challenged the trafficking offence under
the CDSA. R v. Turmel [2007]
 
4. JUSTICE CLEMENTS WAS CORRECT 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?
 
41. The Appellant has submitted that "Section 7 cultivation
prohibition and by implication section 4 possession
prohibition remain repealed pursuant to the section 2.2 of
the Interpretation Act once declared invalid by the Krieger
Court of Appeal of Alberta in 2002."
 
42. In 1999, Grant Krieger was charged with the offences of
production of marijuana (contrary to subsection 7(1) of the
CDSA) and possession of marijuana for the purposes of
trafficking (contrary to subsection 5(2) of the CDSA). He
brought a motion seeking a declaration that these provisions
of the CDSA violated section 7 of the Canadian Charter of
Rights and Freedoms. On December 11 2000, pursuant to
subsection 24(1) of the Charter, Acton J. struck down
subsection 7(1) of the CDSA, but permitted the charge in
respect of subsection 5(2) to proceed to trial.
Subsequently, Krieger was acquitted by a jury on the charge
of trafficking contrary to subsection 5(2) of the CDSA. On
appeal, in a decision announced on December 4 2002, the
Alberta Court of Appeal confirmed the ruling which struck
down subsection 7(1) of the CDSA but ordered a new trial in
respect of Krieger's acquittal of the trafficking charge
under subsection 5(2) of the CDSA.
 
JCT: The trafficking stuff is irrelevant to our issue. And
though the Alberta Court of Appeal actually dismissed the
appeal against the Acton Order of invalidation, you could
say they confirmed the invalidation of the cultivation, and
by implication possession, prohibitions.
 
43. Meanwhile, Mr. Krieger was charged with counts of
trafficking marijuana on December 3 2003 and January 8 2004
contrary to subsection 5(1) of the CDSA.
 
JCT: Another not relevant issue.
 
In that case, Mr. Krieger argued that the MMAR failed to
comply with section 7 of the charter.
 
JCT: The same as when he won the first time.
 
However, on September 25 2006, the Alberta Provincial Court
ruled that the MMAR were constitutional, and Mr. Krieger was
found guilty on both charges.
 
JCT: And of course, Krieger didn't argue that the law was
still dead since the had killed it the first time. No,
Krieger helped his lawyer plant the idea that the Court
didn't strike down the prohibitions for everyone but only
for Krieger. So how come he didn't use his past win? Too
long a story though you can find my posts on it at medpot.
 
44. Justice Clements correctly noted that the initial
decision of Justice Acton J. in the original trial of
Krieger concerned events that pre-dated the introduction of
the MMAR.
 
JCT: It doesn't matter since the Hitzig decision ruled that
the MMAR hadn't worked. So what effect and the MMAR that
did not work could not have had much effect on the Krieger
invalidation of the cultivation and possession prohibitions.
It didn't work. How can it be relevant?
 
That decision was issued prior to the Ontario Court of
Appeal's decision in Hitzig.
 
JCT: Just like the Parker invalidation was issued prior to
the Hitzig decision. So what? Fixing the exemption system
brought the possession prohibition back to life and the
cultivation back to life too?
 
For these reasons, the decision of Acton J. has been
effectively superceded by the MMAR and the subsequent
decision of the Ontario Court of Appeal.
 
JCT: Sounds great that 3 of Ontario highest judges
superceded one little Alberta Superior Court judge but the
Crown is really saying that the Ontario judges are also
superceding the three Alberta Highest judges and the three
Supreme Court of Canada judges who threw out the Crown's
appeal. But it's easier to say the Krieger decision was just
one lowly judge and ignore it's three equals to Ontario and
three Supremes.
Besides, the Hitzig Court did not rule they were
resurrecting the cultivation prohibition, only the
possession prohibition. No one even knew that the
cultivation prohibition had been declared invalid until the
Crown's application for leave to appeal was thrown out by
the Supreme Court of Canada two months after the Hitzig
decision.
 
45. Subsequent decision of other courts across Canada
demonstrate the limited value of the Alberta Court of Appeal
decision in Krieger.
 
JCT: Sure, all the judges forgot their Interpretation Act
and obeyed the new judge-created prohibition to start
oppressing innocent victims again, so what? They all use the
Nazi alibi, they must follow higher orders, right or wrong.
 
Following the Ontario Court of Appeal's ruling in Hitzig and
the subsequent government response (amendments to the MMAR
and the entrenchment of the Supply Policy), a number of
cases considered the validity of the scheme developed by the
government and found it comply with the Charter.
 
JCT: We're not arguing it isn't working now. We're arguing
it didn't on time then. Of course, legally-trained minds
seem able to keep some truths out of their thought
processes.
 
46. In Kubby, the B.C. Court of Appeal held that s.4(1) of
the CDSA and the MMAR constitute valid legislation.
 
JCT: What would we expect from camp followers of Marc The
Narc Emery? Just like the Young-Emery Hitzig crew's case is
a boon to the prohibitionists, now the Young-Emery crew's
Kubby case is a boon to the prohibitionists. They can lose
all they want and the Crown can refer to their Hitzig,
Wakeford, J.P, Kubby losses all they want. Am I to be
impressed by losses by the Young-Emery team of Judas Goats?

 
Ms. Kubby had brought a petition in B.C. Supreme Court
seeking a declaration that the MMAR were invalid as being
contrary to section 7 of the Charter.
 
JCT: Pulling an other Hitzig again. Not challenging the
prohibition system but the failed exemption system.
 
Rice J. dismissed her petition, and ruled that the MMAR were
valid and that the application had not been supported by
sufficient evidence to succeed.
 
JCT: When the narc moles are trying to lose, you don't
expect them to be using good cards like Parker and Krieger.
 
47. The Court of Appeal dismissed Ms. Kubby's appeal. In
doing so, it commented on the constitutional validity of the
MMAR as follows:
 
JCT: Keep in mind, we're not arguing about the MMAR not
being constitutionally valid, we're arguing that it wasn't
constitutionally valid by Terry Parker Day. And once it had
failed and Parker Order repealing the prohibition took
effect, only Parliament could resurrect it. Not the Hitzig
judges. So all this is completely not relevant to the issue
at bar.
 
"Contrary to the appellant's submissions, the MMA Regs must
be taken to have effectively addressed the constitutional
deficiencies in the relation to section 4(1) of the CDS Act
 
JCT: Yes, but not on two years after repeal, way too late.
 
with respect to the blanket prohibition against the
possession of marijuana. At this point, the MMA Regs and
s.4(1) of the CDS Act constitute valid legislation.
 
JCT: I can agree that the MMAR may constitute valid
legislation but I can't agree that the court-created
prohibition on possession in s.4(1) became valid after
repeal.
 
48. Finally, in R. v. Wood, the New Brunswick Court of
Appeal considered a constitutional challenge to s.5(2) of
the CDSA and the MMAR and concluded that the scheme that was
put into effect following the Court of Appeal's decision in
Hitzig "easily passes constitutional muster."
 
JCT: I don't care how many judges accept judge-created law.
So they don't know or forgot their Interpretation Act? Cite
as many incompetent judges who accept court-created penal
sanctions all you want, it doesn't change the fact that
Justices Phillips, Rogin and Chen are right and all the rest
are wrong.
 
5. JUSTICE CLEMENTS PROPERLY REJECTED THE APPELLANT'S
ARGUMENT THAT THE MMAR WERE INEFFECTIVE DUE TO THE LACK OF
PHYSICIAN PARTICIPATION.
 
49. The Appellant has submitted that "By 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."
 
50. It appears that the Appellant is presenting the argument
that he has a right to possess marijuana that trumps the
regulatory regime established by the MMAR.
 
51. The Respondent submits, however, that the MMAR is a
valid regulatory regime which must be complied with by the
Appellant. In Hitzig, the Ontario Court of Appeal ruled that
is is appropriate for the MMAR to require doctors and
specialists to act as the gatekeepers of the issuance of
ATPs:
[138] The second attack on the eligibility barriers created
by the MMAR focuses on the use of physicians as gatekeepers
in the sense that every application must be supported by a
doctor and it is that doctor who must declare that marihuana
is recommended to mitigate the symptom involved. It is
argued that this places unwarranted power to determine
whether an individual receives a medical exemption in the
hands of physicians rather than letting the individual
decide for him or herself or having the Minister of Health
do so. It is further argued that the serious concerns of
several central medical groups about the gatekeeper role for
physicians means that doctors will not assist individuals to
obtain medical exemptions.
[139] Again, we do not agree. Whether marihuana will
mitigate the particular symptom of an individual with a
particular serious medical condition is fundamentally a
medical question. Just as physicians are relied on to
determine the need for prescription drugs, it is reasonable
for the state to require the medical opinion of physicians
here, particularly given that this drug is untested.[11] The
second argument is answered by Lederman J.'s finding that
despite the concerns of central medical bodies, a sufficient
number of individual physicians were authorizing the
therapeutic use of marihuana that the medical exemption
could not be said to be practically unavailable...
[140] The third attack on the eligibility conditions of the
MMAR, and the one focused on in the argument before us,
rests on the requirement that the physician support for a
medical exemption for individuals in category 2 and category
3 must come from specialists...
 
JCT: For some reason, the Crown leaves out paragraph 141:
 
[141] First, they say that because marihuana is an untested
medication there is no justification for requiring medical
support beyond the individual's own general practitioner
since the specialist has no knowledge advantage. They say
that when this is combined with the practical difficulties
that exist in accessing specialists, particularly in rural
areas, the specialist requirements for categories 2 and 3
constitute an unreasonable barrier which significantly
interferes with those in medical need from accessing the
medication they require.
 
JCT: No wonder, it's a pretty good reason for why it was
hard to quality.
 
[142] In our view, this argument too does not succeed...
The requirement for a declaration in this form....
 
JCT: Whoa. The ... is whatever the requirement is. So what
was the part they cut out:
"In order to qualify for a medical exemption, both
individuals in category 2 and those in category 3 must have
a declaration from a specialist practicing in an area of
medicine relevant to the treatment of the individual's
medical condition causing the symptom to be mitigated. The
declaration must say that all conventional treatments for
the symptom have been tried or considered and why each is
medically inappropriate."
 
The requirement for a declaration in this form serves
substantial and compelling state interests. First, it serves
the state interest in protecting the health and safety of
its citizens in relation to an untested drug. Second, it
serves the state interest in complying with international
conventions aimed at restricting the use of drugs such as
marihuana save for legitimate medical and scientific
purposes. A specialist in the treatment of the particular
medical condition is likely to have more knowledge than a
general practitioner of the complete range of possible
treatments, including ones that may just be emerging. The
specialist requirement thus better assures that marihuana is
used only if no other more conventional medication is
effective. Given that marihuana is an untested drug, this is
a substantial and compelling state interest. So too is
compliance with international conventions that are designed
to restrict the use of drugs save for legitimate medical and
scientific purposes a state interest which the specialist
requirement also serves.
 
[143] Moreover, on this record, the Hitzig applicants simply
have not shown that the specialist requirement is a
significant impediment to obtaining a medical exemption...
Thus, on this record we conclude that the specialist
requirement does not constitute an undue constraint on the
individual's ability to get a medical exemption and
represents a fair balance between the interests of the
individual and the state.
 
52. Recently, the Nova Scotia Supreme Court ruled that a
person is not exempted from compliance with the MMAR merely
because they have encountered some difficulty in obtaining a
prescription from a doctor.
 
JCT: Enough difficulty makes the MMAR unworkable. How much
"some difficulty" is not too much difficulty?
 
53. The validity of the MMAR post-Hitzig were also
considered in the 2006 Alberta Provincial Court decision in
R. v. Krieger.
 
JCT: Another Krieger loss to balance the win he won't use?
Besides, we're not challenging the validity of the MMAR
post-Hitzig, we're challenging whether it brought the dead
prohibition in the CDSA back to life.
 
The accused was charged with trafficking in marijuana on two
occasions.
 
JCT: And of course, section 5(2) arguments have no bearing
on our Section 7 and 4 issues. But if the Crown insists on
wasting time on stuff that won't come up...
 
By an Agreed Statement of Facts he admitted he was sending
the marijuana to individuals in Manitoba who were in medical
need of marijuana. Mr. Krieger argued that the MMAR did not
comply with section 7 of the Charter.
 
JCT: After winning and not collecting the pot last time, why
not do the same all over again now?
 
The Court dismissed the application concluding that "it is
clear that the regulations providing for a medical marijuana
exemption are working successfully.
 
JCT: 1600 exemptees out of the millions who medicate
illegally is not "working successfully." Doctors are
deterred by making them answer answer to Health Canada's
examiners who are pharmacists. Would a professional engineer
want to have to explain his requirements to the stockboy?
Are doctors deterred by having to explain their
prescriptions to Health Canada pharmacists in the same way?
Anyway, the issue is raised. Can the chance of finding a
compliant doctor being 1/60 be a successful exemption system
for the sick and dying. "Gee, he died while on his eighth
doctor-shopping interview!"
 
More persons are authorized to possess and more physicians
are participating in the program.
 
JCT: "More?" Instead of 1 in 65 doctors, it's more, 1 in 60.
Instead of 1000 in millions, it's more, 1600 in millions.
More is proof it works. To a judge. Har har har.
 
54. In this case, the evidence reveals that the Appellant
has made only a minimal effort to comply with the regime.
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. The appellant admits that he could go 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
[i.e. doctors] to get further assaulted," and objects to the
MMAR requirement that he provide medical authorization.
 
55. The evidence also reveals that the MMAR regime is
working well and is effective in providing ill persons with
the marihuana that they desire.
 
JCT: It's 1/60th as effective as it is for any other
necessary medication that all doctors would prescribe.
 
Based on information pertaining to the period July 1st 2005
to November 1st 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. 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.
 
56. The fact that 431 medical practitioners had participated
in the MMAR as of November 3 2006 is a complete rebuttal of
the Appellant's anecdotal evidence concerning the lack of
physician participation in the MMAR.
 
JCT: 431 sounds like so many, to a legally-trained mind. Out
of 27,000 in Ontario, not so many.
 
As such, there is simply no evidence on which to conclude
that the MMAR are deficient as a result of a lack of
participation of physicians and the decision of Justice
Clements on this point should not be disturbed.
 
JCT: Sure, the evidence has provided a ratio. That the
chances of finding one of the 431 doctors from among
Ontario's 27,000 doctors who might be amenable to the stress
and intimidation Health Canada's pharmacists put them
through, much detailed in my first year's battles at
http://health.groups.yahoo.com/group/MedPot/messages/1
 
6. THE RECENT DECISION OF THE FEDERAL COURT IN SFETKOPOULOS
IS NOT BINDING ON THIS COURT.
 
JCT: This is the first time I've ever of of Sfetkopoulos!
 
57. On Jan 10, 2008, approximately one month after Justice
Clements released his decision in this matter, Deputy Judge
Strayer of the Federal Court released a decision declaring
paragraph 41(b1) of the MMAR constitutionally invalid as
inconsistent with section 7 of the Charter. Deputy Judge
Strayer found that the impugned provisions which limited the
size of marijuana production facilities violated section 7
of the Charter.
 
JCT: Is this a problem in the MMAR the Hitzig Court failed
to fix so that their decision didn't resurrect the law?
 
58. However, the decision of Deputy Judge Strayer did not
invalidate the entire MMAR, only s.41(b1). Therefore, the
possession prohibition remains valid despite the decision in
Sfetkopoulos and the Appellant cannot rely on that decision
in support of his argument that he now has a right to
possess marijuana.
 
JCT: We didn't raise it and do not rely on it. We argue they
didn't resurrect the law because they don't have the power
and this argues says they didn't resurrect the law because they
forgot they were missing one incantation for their spell.
 
59. Furthermore, the issue before Deputy Judge Strayer was
whether persons authorized to possess marijuana have
reasonable access to a licit supply of marijuana.
JCT: And we're not challenging whether exemptees have
reasonable access to marijuana, we're challenging whether
Parker has reasonable access to an exemption.
The provisions of the MMAR which are germane to this appeal,
namely those provisions governing how an individual obtains
authorization to possess marijuana, were not at issue in
Sfetkopoulos. As such, the decision should have no impact on
the case at bar.
 
JCT: Which is why it was raised by the Crown, to have no
impact.
 
60. In any event, the Federal Court of Appeal has stayed the
decision of Deputy Judge Strayer pending the resolution of
an appeal initiated by the Attorney General of Canada.
Therefore, the decision of Deputy Judge Strayer is of no
force and effect for the purposes of this proceeding.
 
PART IV - ORDER REQUESTED
 
59. The Respondent requests the following relief:
(a) An order dismissing the Appeal;
(b) An order granting costs to the Respondent, and
(c) Such other relief as this Honourable Court determines to
be just.
 
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Toronto this 11th day of July 2008.
James Gorham
Of Counsel for the Respondent,
Her Majesty the Queen.
 




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