TURMEL: Pearson Booby-traps Nielsen motion

From: John Turmel (bc726_at_FreeNet.Carleton.CA)
Date: 09/10/04 

Date: 10 Sep 2004 22:38:31 GMT

JCT: Well, we might as well see what Pastor Ed Pearson has
added to the Nielsen file, word for word.

EP: Court File No:
ONTARIO COURT OF JUSTICE (Region)
 
BETWEEN:
HER MAJESTY THE QUEEN
-AND-
Accused
 
APPLICANT'S FACTUM IN SUPPORT OF HIS
NOTICE OF APPLICATION AND CONSTITUTIONAL ISSUE

JCT: Moron. Now that he's raised a constitutional question,
the Crown has the right to respond and make arguments. Let's
get it straight. We, like the Windsor Phillips decision in
J.P., have no constitutional question. Parker won our
constitutional question. All we need now is a declaration
that the statute is no longer known to law since Courts Only
Abrogated the prohibition and Parliament Only legislates but
did not here. So our case is as simple as Windsor's non-
constitutional case with no constitutional question.

Ed has now complicated it by adding a constitutional
question to the file which may be all it takes for the Crown
to now want to study up on a response. At least, I'd ask for
an adjournment to study Pastor Pearson's new Factum on the
new constitutional issue if I were the Crown, wouldn't you?
Does it not seem fortuitous for the Crown that the inclusion
of this new reason for an adjournment pops up at this time?
So, the Crown can now have the Pearson constitutional issue
delayed because of the failure to file the required Notice
of Constitutional Question to Canada's provincial Attorneys
General too. You must inform all of them if you want to
raise a constitutional issue. It hasn't been done right here
where no constitutional question was expected to be raised
until Ed stuck his constitutional nose into our file.

EP: Pursuant to the provisions of Charter of Rights and
Freedoms s.24 (1) (Criminal Proceedings Rules, Rule 27.01 (
c) , Form 5 and 27.04(1) )

JCT: Our motion deals with none of this, only whether the
statute is repealed or not, not a constitutional question at
all. And nothing more. And now Ed's added a constitutional
question that should permit the delay of the case as the
Crown haven't had the chance to respond to the new
constitutional arguments, only the non-constitutional "no-
longer-known-to-law" arguments. Ed's given the Crown the
chance to delay the case to argue against Ed's new
constitutional arguments. Regardless, it just means that
Sheppard's decision will make the national news first next
month. Or the next person who can stay focused on the non-
constitutional question.

EP: PART 1
STATEMENT OF THE CASE:

1. The applicant , was arrested on 2004 in the town of
Ontario, within the territorial jurisdiction of this Court.
The charges against the applicant are:: --------------------
-------------
2. The applicant released upon his own recognizance appeared
for arraignment Court at the Court House at Ontario on the
day of 2004;
3. That upon arraignment on 2004 the matter was adjourned
until 2004.
4. That on 2004, the matter was adjourned until 2004 for
appearance with agent.
5. That on 2004 the matter was again adjourned until this
day 2004.

PART 11 SUMMARY OF THE FACTS:
6. That the relevant facts in the matter at Bar at this time
consist solely of the Information filed, secondly the
pretended and purported charges that are alleged within the
said Information # . Thirdly, the fact that the applicant
was compelled to appear before the Court to respond to the
said Information. Fourthly, the Information contains charges
and offences unknown to law. Fifthly, the Information and
charges therein infringe and deprive the applicant of his
right to liberty and security and his right not to be
deprived thereof except in accordance with principles of
fundamental justice.

PART 111 ISSUES AND THE LAW:

7. Where a Court of Appeal by final judgment has declared a
statute unconstitutional and of no force and effect but has
granted temporary validity that expired without
Parliamentary re-enactment does not that statute for all
legal purposes cease to have effect as law? If the answer
is: yes:

8. If such a statute no longer exists at law may, a Court of
Appeal at a subsequent sitting approximately three years
later, without statutory authority lawfully empower itself
to indirectly re-enact and grant constitutional validity to
such a statute?

JCT: I like it better the way judge Edward asked it: Does
the court have the power to resurrect a law that's been
repealed? Ed's verbose rendition can't be anyone's first
choice.

EP: 9. Whether the Medical Marihuana Access Regulations
[MMAR] were valid purposeful regulations having force of law
when the underlying law sought to be regulated was without
force and effect at the time of the promulgation, the former
having been declared unconstitutional and of no force and
effect?

JCT: I don't even want to read this twice. We're not here to
deal with questions of constitutionality.

EP: 10. What is the effect of the expiry of a temporary
Constitutional validity granted by a Court of Appeal?

JCT: We had no reason to ask this because it had already
been answered. The Parker Day Declaration took effect after
July 31 2001 and they've admitted it did. So the effect
after expiry is what the court admitted it was, the law was
repealed. Why is Ed trying to ask what's already been
determined.

EP: 11. May a Court of Appeal directly or indirectly in
respect of a statute that in law no longer exists read in or
read down that statute so as to constitutionally validate
such a non-existent law?

JCT: Judge Edward's question was shorter. Perhaps he'll
appreciate Ed helping him make it longer.

EP: Where a Court of Appeal by final judgment has declared a
statute unconstitutional and of no force and effect but has
granted temporary validity that expired without
Parliamentary re-enactment does not that statute for all
legal purposes cease to have effect as law?

JCT: Everyone's admitted so. Why ask what's already been
accepted? The law died on Terry Parker Day. Everyone knows
it, except Ed who has to ask. Though it gives the Crown the
chance to engage the constitutional debate once again.

EP: 12. It is clear from the judgment of the Supreme Court
of Canada in Big M Drug Mart Ltd.[1985] 1 S.C.R. 295 that no
person may be charged or convicted under an unconstitutional
law and that any person may defend against the charge by
arguing the constitutional validity of the charge. Inclusive
is that any person may defend against a charge that is
founded upon a statute that has been declared
unconstitutional and of no force and effect, has ceased to
exist, and which has not subsequently been re-enacted by
Parliament.
If such a statute no longer exists at law may, a Court of
Appeal at a subsequent sitting approximately three years
later, without statutory authority lawfully empower itself
to indirectly re-enact and grant constitutional validity to
such a statute?

JCT: Edwards asked it better.

EP: What is the effect of the expiry of a temporary
Constitutional validity granted by a Court of Appeal?

JCT: It's been admitted that the effect was the invalidity.

EP: May a Court of Appeal directly or indirectly in respect
of a statute that in law no longer exists read in or read
down that statute so as to constitutionally validate such a
non-existent law?

JCT: Still like Edward's wording better no matter how many
times Ed repeats the same thing.

EP: In Re Manitoba [1985] 1 S.C.R. 721 the Supreme Court of
Canada determined that if before the expiry of the temporary
validity a statute is not re-enacted it ceases to have any
legal force and effect no law existing.. In respect of the
instant matter the Ontario Court of appeal in Parker v Q,
[2000] 49 O.R. (3d) 481 (C.A.) declared at paragraphs 10-12
and 210 that the prohibition against cultivation and
possession of Marihuana was unconstitutional CDSA s.7 and 4
being integral one to the other and inseparable the Court
rightly declared both to be in violation of Charter s.7
rights.. The Ontario Court of Appeal suspended for one year
the effect of the declaration of unconstitutionality by
granting temporary validity to those statutes during that
period of time. Is not such a suspension constitutionally
impermissible given Charter s 1, 7, and s. 52 of the
Constitution Act, 1982.

JCT: Ed's supposed to be telling them the answer to the
question, not asking it.

EP: That issue is in question at this time and cannot be
left for another day. It is submitted that what is clear is
that the applicant as an accused has standing to attack
these present charges as being for offences unknown to law
and as charged offences that infringe and deny his s. 7
Charter rights.

JCT: No one needs part II about his constitutional rights,
we only need part about unknown to law which calls for no
further delays.

EP: It is a fundamental principle that orders issued without
jurisdiction or on some fundamentally flawed basis are
nullities ***** Persons materially affected by such matters
are entitled as of right to have them put to rest and some
Court is correspondingly obliged to do so.**** It is part of
the overarching doctrine of ex debito justitiae : R v
Sterling (1993) 84 C.C.C. (3d) 65 (Sask. C.A.).

14. In Schachter, [1992] 2 S.C.R. 679 and the more recent
case of Canadian Foundation for Children, Youth and the Law
v. Canada (Attorney General) Neutral citation: 2004 SCC 4.
File No.: 29113, 2003: June 6; 2004: January 30, the issue
before the Supreme Court of Canada was the question of when
it is permissible to read in and/or read down an "existing
law" so as to bring it within constitutional requirements.
It is no longer questionable that the common law power to
read in and/or read down conflicts with the mandatory terms
of s.52 of the Constitution Act, 1982. The applicant at
this time raises that issue. However, it is of note that
both of the above cited cases have application only where
and when the reading in or reading down is in respect of an
existing, enforceable having effect statute. Thus there
exists that additional issue. (underline emphasis added by
applicant) No judgment on all fours with the applicant's
present submissions can be found by this applicant, thus
viable constitutional issues are raised. In the case at bar
it is established that in respect of the involved statutes
and regulations neither had force and effect nor existed as
valid law.

15. Section 4(1) ceasing to have force and effect on July 31
2001,

JCT: Actually, July 31 2001 was its last day of force and
effect. It ceased to have force and effect at 12:00:01 on
Aug 1 2001.

EP: the objective purpose of the MMAR had ceased to exist.
The CDSA, Schedule substance sought to be regulated, was and
is marihuana, the possession and cultivation of which was no
longer prohibited. Marihuana was no longer a substance
within the very intent, purpose and objective of the
regulations. The MMAR were not stand alone provisions they
provided no prohibitions the validity of those regulations
required an underlying source, which was the prohibitions
found in CDSA s. 4 (1), 5 (1) ,7 (1) the Schedule substance
'marihuana' without which they had neither force nor effect.
The MMAR were ab-initio nullities.

16. It is the applicant's submission that as CDSA s. 4 and
7, were offences unknown to law and of no force and effect
on October 7, 2003. The Ontario Court of Appeal could
neither directly nor indirectly by any act of the Court give
breadth of life to either. Common reason and logic dictates
that non- existent no force and effect statutes and
regulations are not capable of correction or resurrection
except by Parliament and in respect of the latter by
Governor in Council.

JCT: So he argues POLCOA too.

EP: 17. In Parker (supra) The Court of appeal declared
sections 4 (1) as it relates to the substance Marihuana in
the Schedule and s. 7(1) as it relates to the substance
marihuana in the Schedules of the CDSA, unconstitutional and
of no force and effect but suspended the effect of the
declarations for one year, that is to say until (July 31
2001). Sections 4 (1), 5 (1) and 7 (1) in and of themselves
remained in full force and effect and constitutionally valid
excepting when relative to the substance marihuana
prescribed in the schedules. No application by the Crown for
leave to appeal to the Supreme Court of Canada was sought.
On July 31 2001 and thereafter, actually since the CDSA
enactment in 1995, relative to the substance marihuana had
no legal existence. In Hitzig et al v Q, (2003) October 7
2003, DOCKET: C39532; C39738; C39740, on appeal from (2003)
171 C.C.C. (3d) 18, the Ontario Court of Appeal affirmed R.
v. Parker, supra, 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 [sic]. The
Section 4, declared unconstitutionality related to the
substance prohibited, 'marihuana' as set forth in the
schedule. Absent the inclusion of a substance the section 4
(1) prohibition is meaningless.

18. Without consideration by the Court of the issue set
forth in paragraph 9, (supra), it must be noted that on
January 9th 2003, the Ontario Superior Court of Justice, in
Hetzig et al v Her Majesty the Queen, Lederman (J) rendered
a decision declaring the Marihuana Medical Access
Regulations (MMAR) unconstitutional being in violation of
Charter s. 7 though suspending the effect of the said
declaration for a period of six months. Thus on July 10th
2003 the MMAR, if not corrected by that date, as has been
conceded by the Crown became invalid.

19. The Crown appealed the judgment in Hitzig et al, and
sought before Carthy J.C.A., a stay of the Lederman (J.)
decision on the grounds that Failure to sufficiently address
the issues raised by the Court by July 10, 2003 would result
in the MMAR becoming invalid in Ontario. A stay of the
decision was requested by the Crown pending the appeal, but
refused. The consequence of the denial of the stay coupled
with the Crown failure to address the issues raised by
Lederman (J) prior to July 10, 2003 resulted in the MMAR
becoming constitutionally invalid and of no force and effect
in Ontario. Thus the MMAR was without force and effect for
any purpose in Ontario. As a matter of law, for purposes of
enforcement or compliance therewith, the regulations no
longer existed, s. 52 Constitution Act 1982. Clearly this
situation was subject to the reasoning and judgment of the
Supreme Court of Canada in Re Manitoba (supra) as regards
the consequences of an expiration of a temporary validity.
The question then is what are the legal consequences and
sanctions relative to the appeal taken in Hitzig et al and
whether a Court of Appeal in such circumstances has the
constitutional or statutory power to re-enact the specific
provision or whether the regulating body must promulgate new
regulations or must Parliament intervene in the enactment.
It is the submission of the applicant that the appeal
relative to the MMAR at the point of denial of the stay
became academic and un-remedial. It became an appeal wholly
devoid of underpinning and one not subject to adjudication,
one which no judgment could cure.

20. Even if it were acceptable as being within jurisdiction
and the Hitzig et al Court of Appeal could strike or read
down five parts of a regulative scheme that expired (MMAR),
its power to do so was limited and curtailed by both Re
Manitoba and Schachter v Canada, which together impose a
burden that is incapable of being met within the confines of
the Courts jurisdiction, statutory and constitutional. The
striking of five parts of the MMAR in all of the
circumstances was void.

21. The Hitzig et al, Court concluded without a proper
analysis of its power to do so, that by striking or reading
down the offending five parts of the MMAR they could give
life to the expired MMAR, and secondly, having recreated
same the end result would automatically be that the
prohibition of possession of marihuana Parker v Q, declared
to be unconstitutional would ipso facto become
constitutional and the CDSA s. 4(1) prohibition against
marihuana would once again be enforceable. On the basis of
this constitutionally infirm assumption that defies all
rules of statutory construction the present applicant stands
charged, with a Court created offence that infringes and
deprives him of his right to liberty and security and the
right not to be deprived thereof except in accordance with
fundamental principles of justice. The position of the Crown
in Parker v Q (supra) was:

In this respect, I agree with the submissions of the Crown.
In light of the leading decisions on remedy in Schachter v.
Canada, [1992] 2 S.C.R. 679, Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203 and
Rodriguez, the Crown submits that, should this court find a
violation of s. 7 because the legislation fails to provide
adequate exemptions for medical use, the only available
remedy is to strike down those provisions and suspend the
finding of invalidity for a sufficient period of time to
allow Parliament to craft satisfactory medical exemptions.
[199] Since the federal Crown takes this position in
defending its own legislation, it is only necessary for me
to briefly indicate my reasons for reaching the same
conclusion with respect to the Controlled Drugs and
Substances Act

22. Assuming arguendo that the Hitzig et al judgment
conforms with statutory and constitutional dictates and that
the five stricken parts served to give life to the expired
MMAR, there remains glaring infirmities going to establish
invalidity. The Court failed to constitutionally situate
itself in a position that would permit or vest it with the
power exercised. In fact, the Court concluded that there
indeed was no permanence in the power exercised and that the
striking of those five parts would in all probability give
life to further constitutional attacks. The Court stated at
paragraph [172]
Third, we acknowledge that the Government could choose to
address the constitutional difficulty by adopting an
approach fundamentally different from that contemplated in
the MMAR. The alternatives range from the Government acting
as the sole provider, to the decriminalization of all
transactions that provide marihuana to an ATP holder.
Indeed, even if the Government is content with the solution
contained in the MMAR as modified by our order, it may seek
to impose reasonable limits, provided they do not impede an
effective licit supply, for example on the amount of
compensation that a DPL holder can claim or on the size of
the operation that a DPL holder can undertake.

23. The Court then went much further acknowledging that
their decision, [166] While the record before us sustains
this conclusion, it is conceivable that, as events unfold,
further serious barriers could emerge either to eligibility
or to reasonable access to a licit source of supply. Should
that happen, the issue of the appropriate remedy might have
to be revisited in a future case (underline emphasis added
by the applicant)

24. These above paragraphs 19-20 make it patently clear that
the Hitzig et al Court exceeded the jurisdictional powers
imposed by Schacther v Canada (supra) and Re Manitoba
(supra). The Crown in Hitzig et al, (supra) submitted as
follows:

JCT: How many ways are there to say they exceeded their
power?

EP: 76. With respect to 'reading in' the Supreme Court in
Schacter noted as follows:

The Court should not read in in cases where there is no
manner of extension which flows with sufficient precision
from the requirements of the constitution. 'In such cases,
to read in would amount to making ad hoc choices from a
variety of options, none of which was pointed to with
sufficient precision by the interaction between the statute
in question and the requirements of the Constitution. 'This
is a task of the legislature, not the courts.' (emphasis
added) Schacter v. Canada, supra at 19

77. The Court in Schacter also reiterated the following
observation of Dickson, C.J.C. in Morgentaler who, having
found that the detailed scheme embodied in the abortion law
was constitutionally deficient, went on to say:
Having found that this "comprehensive code" infringes the
Charter, 'it is not the role of the court to pick and
choose among the various aspects of s.251 so as to
effectively redraft the section.' (emphasis added)

25. It can be also be properly advanced and it is submitted
that the failure of the Crown to comply fully with the Order
of the Hitzig et al, Court as regards removing the
limitation of the amount of compensation a DPL holder can
command as well as the size of the operation that a DPL
holder can undertake and for how many is fatal. The Crowns
failure to comply and to adhere to the Courts Order in
respect of the very constitutional infirmities found, two of
the five, resituates the MMAR as declared by Lederman (J),
unconstitutional and unknown to law as of July 10th 2003,
the whole being violation of Charter section 7, Justice
Carthy, of the Ontario Court of Appeal on June 25, 2003
having refused to grant the Crown application for a stay of
the decision of Lederman, (J).

26. As concerns CDSA s. 4, ( the prohibition against
possession of marihuana), the question is whether a law that
has by final judgment been declared unconstitutional and of
no force and effect as of July 31 2001 can, on October 7th,
2003 without any act of the Parliament, be re-constituted as
an offence known to law notwithstanding that that provision
for all purposes ceased to exist on July 31st 2001, Charter
section 1 and section 52 of the Constitution Act 1982, Re
Manitoba, and Schacter (supra). The applicant submits that
the CDSA s.4 (1) prohibition against marihuana the
substance, remained and is as previously declared
unconstitutional and of no force and effect.

JCT: I like Edward's short question better.

27. The sole distinction between the judgment in Parker
(supra) CDSA s. 4 and that of Hitzig et a l (supra) MMAR,,
is that the latter because of the pending appeal might
appear to have an air of legality which the applicant does
not admit, whilst Parker (supra) on the finality of judgment
principle was not subject to collateral, direct or in this
case indirect intrusion and interference with by the Court
of Appeal of Ontario through the bias of another independent
matter then before the Court. It can be said that in respect
to CDSA s.4 the Court put the wagon before the horse, their
act was premature in the sense that prior to speaking to
that section it was required that that section exist in law
and fact. A surgical intervention to remove the shoes from a
dead horse cannot give life to that animal or an adjacent.
The Hitziget al Court failed to adhere to the Parker
judgment which unequivocally directed that only Parliament
could enact a statute that could correct the constitutional
infirmities that resulted in the declaration of
unconstitutionality. Parliament failed to do so within the
temporary period of validity and the declared inoperable
part at that point ceased to exist. It is submitted that the
Ontario Court of Appeal in Hitzig et al, (supra) usurped the
exclusive domain of Parliament and acted ultra vires its
statutory authority and prescribed powers its judgment was
in excess of jurisdiction and was a nullity and void. The
charge in the instant matter is an unconstitutional
infringement of the applicants rights and in conflict with
Charter s. 7.

JCT: Parliament Only Legislates, Court Only Abrogates" is
shorter.

EP: 28. Even under the common law and common law principles
the power to read in, read down or suspend declarations of
ultra vires was circumscribed by the necessity that there
exist exceptional circumstances. However, with the advent of
the Charter and Constitution Act, 1982 s. 52 it is
abundantly clear, that Court suspensions of declared
unconstitutional statutes and regulations found to be so
because they violate charter s. 7 run afoul of s. 52. This
is so by reason that such suspensions would condone
continued violations and infringements of the Charter s. 7
Charter rights of individuals contrary to the mandatory
provisions of s.52 and remove or nullify the remedial
provisions of Charter s.24 (1). It is trite law to state
that common law and principles thereof that conflict with
the Charter must be resolved in conformity with the Charter
and the clear mandate of s.52 of the Constitution Act, 1982.

29. The applicant submits that in all of the circumstances
and in law, both statutory and constitutional the instant
charge is an unconstitutional infringement and denial of his
Charter section 7, rights.

JCT: This gives the chance to the Crown to have an
adjournment to argue whether it's unconstitutional or not,
once the Nielsens have served the other 14 provincial
Attorneys General first. Maybe I'll get the Nielsens to drop
their constitutional request which the Crown can use to
adjourn their case.

EP: PART 1V ORDER REQUESTED

30. An Order issue on the grounds that no valid law
prohibiting possession of the schedule 11 substance
marihuana exists and that the present and any subsequent
proceedings relative to that substance must be dismissed as
an abuse of process.

JCT: How many ways to ask if no law exists? Ed's thinks his
way is better than mine.

EP: 31. That the applicant be granted his costs.
Dated this day of July 2004 At Burlington, Ontario,

AUTHORITIES TO BE CITED Paragraphs Page (First appearance)

Big M Drug Mart Ltd [1985] 1 S.C.R. 295 11 4
Re Manitoba [1985] 1 S.C.R. 721 12,16,20,22 5
Parker v Q [2000] 49 O.R. (3d) 481 (C.A.) 12,14,17,21,23 5
Schachter v Canada [1992] 2 S.C.R. 679 12,20,22 5
Canadian Foundation Youth v Canada, (attorney General)
Neutral Citation 2004 S.C.C. 4 13, 6
Hitzig et al v Q [2004] October 7, 3003 (OCA)
14,15,16,17,20,21,23 6
it this factum in writing, without oral argument.
Edited by MedPotMarc (Sun Sep 05 2004 09:58 AM)

JCT: Imagine missing the Krieger decision which invalidates
both cultivation and possession at the same time.

Anyway, he's asking for the same relief I'm asking for
except his Factum has the constitutional booby-trap that
should derail their case for the next few months. It's an
out for the Crown they'd be stupid to miss. Remember how
Bruce Ryan had the 200 page document to hand in that would
have delayed his case? Same kind of possible stall here.
What other choice does the Crown have? They're in no rush to
judgment and Ed's given them the opportunity to put
everything off. It's basically a more verbose version of
Turmel's POLCOA except that Pearson Booby-traps Nielsen
motion with constitutional question. 

--
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