TURMEL: #2 Nielsen No-Resurrection Motion Transcripts
From: John Turmel (bc726_at_FreeNet.Carleton.CA)
Date: 09/05/04
- Next message: John Turmel: "TURMEL: #3 Nielsen No-Resurrection Motion Transcripts"
- Previous message: John Turmel: "TURMEL: #1 Nielsen No-Resurrection Motion Transcripts"
- Messages sorted by: [ date ] [ thread ]
Date: 5 Sep 2004 21:00:13 GMT
JCT: Now the transcript of the July 22 2004 hearing reported
at: http://health.groups.yahoo.com/group/medpot/message/1311
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DANIELLE NIELSEN, DOUGLAS NIELSEN, LAUREL NIELSEN
**********
MOTION
BEFORE THE HONOURABLE MR. JUSTICE G. B. EDWARD
on July 22, 2004, at BRANTFORD, Ontario
CHARGE: s.4(l) C.D.S.A. - Possession of controlled substance
s.5(2) C.D.S.A. - Possession for trafficking
**********
APPEARANCES:
Mr.G. Smith Counsel for the Federal Crown
Danielle Nielsen On own behalf
Mr.Douglas Nielsen On own behalf
Laurel Nielsen On own behalf
R. v. Danielle Nielsen, Douglas Nielsen, Laurel Nielsen
THURSDAY. JULY 22. 2004
THE COURT: All right. On that basis, then, I think we can
deal with the Nielsen matter. All right. Good afternoon,
folks. Just have a seat at counsel table. I just need to
make some notes here before we start. Douglas Nielsen,
you're before the court, obviously.
MR. NIELSEN: Yes. THE COURT: And you're representing
yourself, are you, sir?
MR. NIELSEN: Yes.
THE COURT: Laurel Nielsen?
MRS. NIELSEN: Yes.
THE COURT: Yes? You're before the court representing
yourself, are you?
MRS. NIELSEN: Yes, I am.
THE COURT: And Danielle Nielsen?
MS. NIELSEN: Mm-hmm.
THE COURT: And you're representing yourself, as well?
MS. NIELSEN: I am.
MR. SMITH: Your Honour, just for the record, there seems to
be a tape recorder on top of the desk.
MR. NIELSEN: Yes, Your Honour. I'd like to ask that under
Section 136 of the Justice Courts Act(sic)...
MRS. NIELSEN: Courts of Justice Act.
MR. NIELSEN: ...that I tape the proceedings for personal
information.
THE COURT: We have an official court reporter. Okay. It's
the courts discretion. I'm not going to permit you tape
anything.
MR. NIELSEN: Okay.
THE COURT: So, I'll ask that you turn it off and put it
under the table. If you want a transcript, you can order a
transcript through the official court reporter.
MRS. NIELSEN: We've been having a hard time getting them.
JCT: That's really sad. The Nielsens had to wait for 6 weeks
for this 1 hour transcript and it cost them $160. And it
took that long for the transcript to be posted. The Criminal
Code makes provisions for the taping of notes for personal
representatives and those must be the reasons. It's
expensive and fraught with delay. I'll get them to point out
how it cost them time and money and see if Judge Edward will
let them tape their notes for the final parts. Especially
when it's pointed out that all the proceedings in the Big
Five appeals were taped.
THE COURT: All right. In the same order that I took note of
who was before me, I'm going to ask that you each make your
presentation to the court. It's now quarter after 12. I'd
like to have your submissions completed, if possible, by ten
to one. So, that's going to give you about ten minutes each.
If you need more time, that's fine. I've reviewed your
application. In essence, you're asking the court to declare
that the charges that have been laid against you be
dismissed as unknown to law, and specifically -Madam Clerk,
if I could have the informations, please? All three of the
applicants have been charged with same offences, the first
count being the offence contrary to Section 4(1), being
possession, and then an offence on the same date, contrary
to Section 5(2) being in possession for the purpose of
trafficking. So, 4(1) and 5(2), the applicants are asking on
offences unknown to law. Alright Mr. Nielsen, I'll give you
the first opportunity to make representation to the court,
and I'd ask that you stand, sir.
SUBMISSIONS BY MR. & MRS. NIELSEN:
MR. NIELSEN: Well, I guess what I'm asking, Your Honour, is
that our charges be squashed on the fact that the Parker
decision killed the law, basically.
THE COURT: And you're referring to which Parker decision,
Parker one or Parker two?
JCT: What's Parker two? Hitzig?
MRS. NIELSEN: That would be... now, Parker has been...
THE COURT: I suspect you're referring to Parker
MRS. NIELSEN: One, yes...
THE COURT: which is...
MRS. NIELSEN: ...I believe it was.
THE COURT: ...a decision of the Ontario Court of Appeal.
MR. NIELSEN: Mm-hmm.
THE COURT: That's been reported at 146 C.C.C. (3d) 193. It
was a decision rendered by the Ontario Court of Appeal on
July 31st, 2000.
MR. NIELSEN: That's correct.
THE COURT: Now, I take it, as a result of the court's
request for additional cases from the federal prosecutor,
you've had the opportunity of reading Parker two, if I can
use that term, a decision of the Ontario Court of Appeal
rendered by Justices Doherty, Goudge and Simmons, and that
was a decision that was released by that court on October
7th, 2003. Have you had a chance to review that case? I
believe that was a decision that was given to you by...
JCT: Okay. Parker Two is Hitzig. But why would Judge Edward
know that the original style of cause was Parker et al and
not Hitzig et al and only changed to Hitzig et al at the
last minute? This is the first time anyone's ever called it
Parker Two.
MRS. NIELSEN: Was that one of the ones by the Crown.
THE COURT: ...Mr. Smith.
MS. NIELSEN: Okay. That's why I haven't - I didn't get into
that.
THE COURT: And I'm going to ask that you...
MR. NIELSEN: Yes, we have...
MRS. NIELSEN: I, I have read through it.
THE COURT: Once you find that decision, I'm going to ask
that you turn to page three of that decision, and you'll see
at page three there is a paragraph two, and I'm going to
read that paragraph to you.
MR. NIELSEN: Okay.
MRS. NIELSEN: Is it actually called page three, Your Honour?
THE COURT: I have page three...
MRS. NIELSEN: I don't...
THE COURT: ...at the top. Now, it's better that you just
look at paragraph two.
MRS. NIELSEN: Is it, is it...
THE COURT: And what you'd see is that this was actually a
collection of three cases that went to the Court of Appeal,
and they were heard in July of 2003. There are multiple
applicants. It starts with Warren Hitzig...
MS. NIELSEN: Right.
THE COURT: ...Alison Myrden...
MS. NIELSEN: Okay.
MR. NIELSEN: Right.
THE COURT: And in addition there's the Terrance Parker
matter, and also a John C. Turmel and Marc J.J. Paquette.
MRS. NIELSEN: Okay. I do have that page here now.
THE COURT: All right. So, you've got paragraph two. I'm
going to read what paragraph two says, and it was a decision
that was released by the Court of Appeal on October of 2003,
October 7th. Paragraph two reads:
"This case is not about the social or recreational use of
marijuana, but it is about those with a medical need to use
marijuana to treat symptoms of serious medical conditions.
We have concluded that for those people, the M.M.A.R. as
drafted by the government do not create a constitutionally
acceptable medical exemption. Our reasons for so concluding
differ somewhat from those of Lederman, J. So does the
remedy we would impose, namely, to declare invalid only five
specific sections of the M.M.A.R. This renders
constitutional the medical exemption as described in the
remaining provisions of the M.M.A.R., thereby rendering the
possession prohibition in Section 4 of the Controlled Drugs
and Substances Act constitutional."
JCT: It's just an opinion. They never put it into an Order.
And then R. v. Parker supra. All right. So, it's important
that you understand that the Court of Appeal made that
determination on October 7th, 2003. And the Court of Appeal,
which is binding on this court then has said, and I repeat,
thereby rendering the possession prohibition in Section 4 of
the Controlled Drugs and Substances Act constitutional.
JCT: No one has yet pointed out POLCOA to him.
So, that's the first aspect that you have to be aware of. In
addition, the three of you have been charged with an offence
under 5(2) of the Controlled Drugs and Substances Act, being
possession for the purpose.
You need to realize as well that on that same date, October
the 7th, the same panel of the Court of Appeal, again a
court binding on this court, and that panel being Justices
Doherty, Goudge and Simmons, in a case called Her Majesty
the Queen v. John C. Turmel said at paragraph six, and I
just ask that you get that decision before you. That was,
again, in the package of material that was provided by Mr.
Smith, and I'm going to be referring to paragraph six of the
Turmel decision. All right. Do you...
JCT: And he hadn't yet heard the logic behind the Turmel
Aitken appeal to learn why they're wrong again.
MR. NIELSEN: Yep.
THE COURT: ...see that?
MR. NIELSEN: Yes.
THE COURT: Paragraph six. I'm going to be starting at the
third sentence in.
"The declaration does not extend to any other section of the
C.D.S.A. In particular, it does not diminish the effect of
the listing of marijuana in Schedule II for the purposes of
Section 5(2) of the Controlled Drugs and Substances Act, As
a result, the charge of possession of marijuana for the
purposes of trafficking existed on May 26", 2:23." So, in
essence, I just want to make it very clear to you that the
Court of Appeal has said for 4(1), from October 7th, 2003,
on, 4(1) exists as a valid charge, and 5(2) always existed
as a valid charge. So, that's the hurdle that you folks have
to overcome. All right?
JCT: Do they have the power to say marijuana is still on the
schedule without amending the sections in the Code? The
Crown again argues they did, and they wouldn't have if they
couldn't have so they can.
MR. NIELSEN: Okay. Well, Your Honour, what I gather from all
this is the fact that the Parker decision killed the law.
The Hitzig decision brought it back to life. The problem I
have with that, and correct me if I'm wrong, but does a
Provincial...
MRS. NIELSEN: A federal judge...
JCT: No, a provincial set of judges.
MR. NIELSEN: ...Court justice have the right to strike up a
law for all of Canada under federal law?
JCT: That's a shot right to the heart that should have taken
the judge by surprise. He hadn't thought of whether Ontario
judges are binding on other provinces in re-legislating
nation-wide prohibitions that had been repealed.
Isn't parliament the only one that can pass a law through
legislation that is constitutional and conforms with the
Charter?
THE COURT: All right. So, that's the question that you're
posing to the court. Unfortunately, the court poses a
question to you, and I look to answers from you. But your
position is, I don't think that the Ontario Court of Appeal
could resurrect a law that they had earlier struck down?
JCT: Yes, that's exactly POLCOA.
MR. NIELSEN: And by pulling out, let's say the cancer of the
law that made it to be struck down, to reapply that cancer
into the law, doesn't that make the law still dead? And that
was as of...
MRS. NIELSEN: December 2003.
MR. NIELSEN: ...December, 2003?
MRS. NIELSEN: The Health Canada was on that one.
THE COURT: All right. So, that's your first...
MRS. NIELSEN: Health Canada was...
THE COURT: ...point.
MRS. NIELSEN: ...involved with that one.
THE COURT: You don't believe that the Court of Appeal has
the authority to resurrect a law that it had earlier
deemed...
MRS. NIELSEN: Unconstitutional.
THE COURT: ...of no force and effect.
JCT: Tada.
MR. NIELSEN: I feel that they're micro managing the law.
THE COURT: All right.
JCT: But they're not supposed to micro-manage the law,
they're supposed to strike it down and let Parliament micro-
manage it.
MS. NIELSEN: Changing it.
THE COURT: Now, you'd have to acknowledge though, that given
the Turmel case, that would only apply, at best, to 4(1)
because, of course, the Court of Appeal never said that 5(2)
was at any time an offence unknown to law, and I think it
made itself clear on Turmel. At best, what you can do is use
that argument for 4(1). Right?
JCT: It's true. The Parker Ace of Sheppard only applies to
the possession charge. It's going to take the Turmel Ace of
Aitken to beat the possess to traffic charge.
MRS. NIELSEN: May I speak, Your Honour?
THE COURT: All right. Well, do you have any to say on these
points? Can I just engage in this discussion with you and
then perhaps I'll allow Mrs. Laurel Nielsen to make some
representation.
I think the frustration that you folks are expressing to the
court is not a frustration that is unknown to a lot of
people. We're going through, I think, a significant change
in attitude and postures with respect to how we as a country
are trying to deal with the issue of marijuana.
MR. NIELSEN: Mm-hmm.
THE COURT: But I think that what you folks need to
understand is this, issues of any kind of broad sweeping
change, quite frankly, shouldn't come through courts.
JCT: What does he call going from legal to illegal again
through the courts?
Courts are there to apply the law, to interpret the law.
JCT: And this Court of Appeal unrepealed the law.
If there is some significant change in how we as a society
deal with this whole issue of possession of marijuana,
production of marijuana, we've just gone through a federal
election. We've now got in excess of what, 300 members of
parliament who are charged with the responsibility of
creating laws that make sense.
JCT: They certainly reversed its illegality without being
elected.
And I think, as I understand it, changes may be coming down
to the Controlled Drugs and Substances Act with respect to
how we as a society deal with simple possession, but to me,
the appropriate forum for how we change our views or our
punishments or our position on issues of possession, that's
got to come from parliament. It has to cone from elected
representatives.
JCT: I'll have to use his own words.
MR. NIELSEN: I agree.
THE COURT: Lord knows, I've taken enough heat about making
decisions that a lot of people think, who's he to make a
decision. He's one person, we're 26 million. Why should a
judge be empowered to make a decision that effectively
affects all of us, and I think that's what you need to
appreciate. I have a limited role in this whole process.
What's the law? Apply the law.
JCT: Why did 3 judges do just that?
And as I say, looking at what the Court of Appeal has said
on October the 7th, it seems to me you've got some
difficulties.
JCT: Seems to me that them doing what he just condemned
means the difficulties are his, not theirs.
If you folks feel, you know what? Quite frankly, the law
just doesn't make a lot of sense, you may not be alone on
that. I mean, one of the cases suggested, for example, that
the black market for production of marijuana was able to
service the needs of medical users. My own personal opinion
is, I think that's an affront to human decency, that
individuals dependent on marijuana, who have been given the
opportunity to use marijuana as a result of debilitating
medical issues, have to rely on a black market. I think that
that is wrong.
JCT: He should like the Krieger decision.
MR. NIELSEN: Mm-hmm.
THE COURT: I just, from a personal point of view, think that
if you're going to allow individuals to use it based on
medical needs, then they shouldn't have to go down a dark
alley to find it.
MR. NIELSEN: That's right.
MRS. NIELSEN: Yes.
THE COURT: But...
MR. NIELSEN: I agree.
THE COURT:, . I'm not the law as far as the....
MR. NIELSEN: But therefore, it's irrational, Your Honour.
They're saying it's all right...
MRS. NIELSEN: They've already said it's irrational.
MR. NIELSEN: ...to smoke for a few and to grow for a few,
but you can't obtain it. It's an irrational law.
THE COURT: And that's a law that should be changed by
parliament, not by me.
JCT: Yes by him. Irrational laws should be struck down by
judges.
MR. NIELSEN: That's right. So, what my argument is today, is
can you show me where parliament passed legislation since
2002?
THE COURT: Probably not, and it's something...
MR. NIELSEN: So, how...
THE COURT: that they've been...
MR. NIELSEN: How am I as a personal individual supposed
to...
MRS. NIELSEN To know there's a law....
MR. NIELSEN:...know that there's a law and that I'm breaking
it? I've looked online, Your Honour, under the Criminal
Code...
MRS. NIELSEN: Can't find it.
MR. NIELSEN: ...of Canada there is not even .,
MRS. NIELSEN: Can't find it.
MR. NIELSEN: ...anything suggesting marijuana laws for me to
know, or the public to know that they're doing anything
wrong.
MRS. NIELSEN: Yeah.
THE COURT: As citizens of Canada, we're all presumed to know
the law, which in itself, can be a little difficult because,
quite frankly, the law is ever changing. But as soon as the
Ontario Court of Appeal came out on October the 7th with its
decision, then we're all deemed to know it.
JCT: That judges can re-legislate criminal statutes? Why
should we know that? It's not taught anywhere?
And it basically says 4(1) is an offence, 5(2) has always
been an offence, and that's the bottom line, and as I say,
changes need to be through the vehicle of parliament, not
through courts.
MR. NIELSEN: Right. So, what you're saying is the Hitzig
decision was okay?
THE COURT: I'm bound by it. Whether I think it's okay...
MR. NIELSEN: Even though the...
THE COURT: ...or not.
MR. NIELSEN: ...Provincial Court judge that ruled in favor
of changing...
MRS. NIELSEN: In the beginning...
MR. NIELSEN: ...the laws for all of Canada?
MS. NIELSEN: In the beginning ...
THE COURT: But it was the Ontario Court of Appeal, which...
MRS. NIELSEN: It was the...
THE COURT: ...is binding on me...
MRS. NIELSEN: ...Court of Appeal.
MR. NIELSEN: But if you go to page 313 of the time line and
read the bottom paragraph, bottom two.
THE COURT: Now, when you say 313, is that in your material?
MR. NIELSEN: Yes.
MRS. NIELSEN: Yes. Our, our time line.
THE COURT: All right. I have that.
MR. NIELSEN: Okay.
MRS. NIELSEN: The last two paragraphs from the bottom.
THE COURT: All right. Why don't you have a seat, Mr.
Nielsen, and I'll let Mrs. Nielsen take over.
MR. NIELSEN: Okay.
THE COURT: What would you like to tell the court, Mrs.
Nielsen with respect to what's...
MRS. NIELSEN: I would just like...
THE COURT: ...on page 313?
MRS. NIELSEN: ...to add that in the Hitzig case, it points
out right on page 47, that they want to substitute two
paragraphs of the original decision and change it. To me
that, that seems very irrational because it, it does explain
in here that you cannot change a law to - you'd have to
strike down or read in, and by doing either of those, you're
changing it immensely. That's the page my husband was
talking about in our time line.
And in the Clay v. The Queen, it, it states on page four,
down at the very bottom paragraph that, that the task of the
court in relation to Section 7 of the Charter is not to
micro manage parliament's re-creation with continuance of
prohibitions by, by penalty. Isn't that what they did with
the Hitzig case, Your Honour? They micro, they actually
macro managed it. They changed the whole thing back again. I
feel it should have been struck down totally. Gone, and a
whole new one resurrected just on these grounds alone.
As well, Health Canada brought, there was a complaint that
they had made about only one person being able to grow for
one other person. The Health Canada suggesting on December
of this, 2003, and they struck it back up that it was okay
that someone else grow for them. So, that's now
in contradiction again. So, there, there's, there can't
possibly be a law in force under such a...
MR. NIELSEN: Contradictions?
MRS. NIELSEN: ...contradictions. There, there's just major
contradictions all through these whole cases. It's been
struck down. It's been shown that it, that it's been struck
down, yet it was read, resurrected by taking two
paragraphs out of another judge's decision. I would, correct
me if I'm wrong, but I believe that's not legal.
THE COURT: All right. Anything else you wish to say?
MRS. NIELSEN: I think, I think that's about it. I could
make, maybe take five seconds and speak with my coach if
I've forgotten, and I'll let you
know.
THE COURT: All right.
MRS. NIELSEN: would that be all right?
THE COURT: Yeah.
MS. NIELSEN: Thank you.
MR. SMITH: Excuse me, Your Honour, may I just...
THE COURT: Don't interrupt.
MRS. NIELSEN: Okay. They did, they did realize that the law
was unconstitutional. They struck it down. They reinstated
it, but they said they had changed the M.M.A.R. since then,
put things back in that shouldn't, shouldn't have been in
there to start with. That, it's the answers that
they've taken out, they put it right back in. Therefore, the
law, it's not constitutional again. It's been struck down.
The law that they, they made again was the original law we
had, which had been struck down.
THE COURT: All right. Thank you.
MRS. NIELSEN: So that...
THE COURT: All right. Danielle Nielsen, is there anything
you wish to say, Danielle, in addition to what, I take it
this is your mother and father?
MS. NIELSEN: Yes.
THE COURT: In addition to what your mother and father have
said today?
MS. NIELSEN: I think they pretty much covered that. I'm not
familiar with really any of the material that they talked
about.
THE COURT: All right. Just give me a second.
MS. NIELSEN: All right.
THE COURT: Mr. Smith, I wish to give you three questions to
mull over the luncheon recess in addition to any ether
representations that you'd like to make and so, I'm going to
now recite these three questions and allow you to consider
them over the luncheon recess and I'll adjourn until two
fifteen.
The first one is this issue about how can the Ontario Court
of Appeal overrule itself when they made a finding in
respect of Parker one and then came back in Parker two,
three years later, and essentially said 4(1) is now valid
legislation. That's the first question.
Two is, does the federal prosecutor accept that the current
law on marijuana possession under 4(1) is in a confusing
state, and as such, an inappropriate piece of legislation to
prosecute under?
MR. SMITH: Your Honour, with the greatest of respect, I
don't know how I'm going to answer those questions. I, that,
that's for the legislature. I, I can't...
MRS. NIELSEN: Exactly.
THE COURT: I'm asking, you can make...
MR. SMITH: Okay.
THE COURT: ...your submissions.
MR. SMITH: Okay.
THE COURT: Three, can a court resurrect a legislative
provision that has been otherwise struck down as offending
the provisions of the Charter?
MR. SMITH: Sorry, the last one again, please?
THE COURT: Can a court resurrect a legislative provision
that has been otherwise struck down as offending the
provisions of the Charter?
All right, Mr. Smith. I'll let you consider that over the
luncheon recess. I'll hear your submissions on those points
as well as any others that you wish to raise, and I'll
adjourn court until two fifteen.
MR. SMITH: Thank you, sir.
RECESS
-- Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel for UNILETS interest-free time-based currency in U.N. resolution C6 to Governments in the http://www.un.org/millennium/declaration.htm http://www.cyberclass.net/turmel 519-753-0645 USENET: can.politics
- Next message: John Turmel: "TURMEL: #3 Nielsen No-Resurrection Motion Transcripts"
- Previous message: John Turmel: "TURMEL: #1 Nielsen No-Resurrection Motion Transcripts"
- Messages sorted by: [ date ] [ thread ]
Relevant Pages
|
