TURMEL: Supreme Court "All-Prohibitions-Invalid" Application
From: John Turmel (bc726_at_FreeNet.Carleton.CA)
Date: 10/13/04
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Date: 13 Oct 2004 02:59:20 GMT
JCT: This is the second Application to the Supreme Court of
Canada for leave to appeal the Aitken Appeal decision #40127
rejecting that the Parker Declaration of Invalidity made "all-
prohibitions-invalid." "API" The Crown has 30 days to submit
their memorandum before Nov 7 2004. Then I have 10 days until Nov
16 to submit a Reply. This is about convincing them it's
important enough to get in and having the Parker decision applied
to every other section is a big issue.
File Number:_____
Appeal Court No: 40127
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
John C. Turmel
Applicant
Appellant in appeal
and
Her Majesty The Queen
Respondent
Respondent in appeal
-------------------------------------------------
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
JOHN C. TURMEL, APPLICANT
(Pursuant to Section 59 of the Supreme Court Act)
-------------------------------------------------
TAKE NOTICE that Applicant John C. Turmel hereby applies for
leave to appeal to the Court in forma pauperis pursuant to
Section 59(4) of the Supreme Court Act from the judgment of
Justices Doherty, Goudge and Simmons of the Court of Appeal for
Ontario #40127 made Oct 7 2003 and for an Order declaring that
the word "marijuana" was deleted from Schedule II for all
sections of the CDSA.
AND FOR any Order abridging the time for service, filing, or
hearing of the application, any Order amending any defect as to
form or content of the motion or any Order deemed just.
AND FURTHER TAKE NOTICE that this application for leave is made
on the grounds that the judiciary do not have the constitutional
power to resurrect penal statutes that have been repealed.
Dated at Brantford Ontario on Oct 6 2004
Applicant:
John C. Turmel, B. Eng.
8-37 Colborne E.
Brantford, N3T 2G3
Tel/Fax: 519-753-0645
Email: turmel@ncf.ca
ORIGINAL TO: THE REGISTRAR
AND TO: Croft Michaelson: cmichael@justice.gc.ca
Christopher Leafloor: christopher.leafloor@justice.gc.ca
Vanita Goela: vgoela@justice.gc.ca
Department of Justice, Ontario Regional Office
130 King St. W. #3400
Toronto, ON, M5X 1K6
Tel: 416-952-7261, 973-0392, 973-9638
Fax: 416-952-0298
NOTICE TO THE RESPONDENT: A respondent may serve and file a
memorandum in response to this application for leave to appeal
within 30 days after service of the application. If no response
is filed within that time, the Registrar will submit this
application for leave to appeal to the Court for consideration
pursuant to section 43 of the Supreme Court Act.
====
TABLE OF CONTENTS
-----------------
Notice of Application for leave to appeal.................(1)
Certificate on seal or ban on publication.................(4)
Aitken order dated May 26 2003............................(5)
Appeal Court Decision dated Oct 7 2003....................(6)
Appellant's Memorandum of argument........................(9)
-------------------------
APPLICANT'S MEMORANDUM
JOHN C. TURMEL, APPLICANT
-------------------------
OVERVIEW
1. Section 4 of the CDSA says it is illegal to possess anything
on Schedule II of banned substances. Schedule II has "marijuana"
on the list. When the marijuana prohibition in s.4 of the CDSA
became invalid, the only way to effect the repeal of the
prohibition without adding the words "except for marijuana" in
Section 4 left only the deletion of "marijuana" from Schedule II
of banned substances.
PART I - STATEMENT OF FACTS:
2. On Oct 7 2003, the Ontario Court of Appeal ruled:
[1] On May 14, 2003 Mr. Turmel was charged with possession of
marihuana for the purposes of trafficking pursuant to s. 5(2)
of the Controlled Drugs and Substances Act, S.C. 1996, c.19
(the CDSA).
[2] On May 26, 2003 Mr. Turmel brought a motion in the
Superior Court of Justice seeking in effect to have this
charge stayed. Aitken J. dismissed the motion and Mr. Turmel
now appeals from her order.
[3] He makes only one argument. It is founded on the order
made by this court in R. v. Parker (2000), 146 C.C.C. (3d)
193 declaring the marihuana prohibition in s. 4 of the CDSA
to be invalid and suspending the declaration for 12 months.
Mr. Turmel says that since s. 4 prohibits possession of any
substance included in, inter alia Schedule II (which lists
marihuana) this court's declaration can only be effected (now
that the 12 months has passed) by deleting marihuana from
Schedule II. He argues that this must remove marihuana from
Schedule II for all purposes. Section 5(2), like s. 4, relies
on the listing of marihuana in Schedule II to create the
charge of possession of marihuana for the purposes of
trafficking. Mr. Turmel says that the Parker declaration
means that there was no such charge on May 26, 2003, since it
deletes marihuana from Schedule II.
[4] While there are questions about whether this motion was
properly brought, and whether the Superior Court had
jurisdiction to hear it, we prefer to deal with this appeal
by addressing directly the argument made by Mr. Turmel.
[5] It is based on a fundamental misconception. A declaration
does not delete a provision from a statute. Pursuant to s.
52(1) of the Constitution Act, 1982 its effect is to render
the provision of no force or effect to the extent of its
inconsistency with the provisions of the Constitution.
[6] The declaration of invalidity made by this court in
Parker8 supra, does not delete marihuana from Schedule II of
the CDSA. It simply declares that the reference to marihuana
in Schedule II is of no force or effect for the purposes of
the possession charge in s. 4 of the CDSA. The declaration
does not extend to any other section of the CDSA. In
particular, it does not diminish the effect of the listing of
marihuana in Schedule II for the purposes of s. 5(2) of the
CDSA. As a result, the charge of possession of marihuana for
the purposes of trafficking existed on May 26, 2003.
[7] Thus Aitken J. was correct to dismiss the appellant's
argument and we would dismiss his appeal.
PART II - QUESTION IN ISSUE
3. When legislation is struck down, is it reasonable for the
government not to re-print the legislation to effect the repeal
and to count on the courts to remember where the written word no
longer applies?
PART III - STATEMENT OF ARGUMENT
4. The invalidation of the prohibition on marijuana in the
section 4 of the CDSA also invalidated the prohibitions in the
other sections too. S.4 says it is an offence to possession
anything on "Schedule II of banned substances." Section 7 says it
is an offence to cultivate anything on "Schedule II of banned
substances." Section 5 says it is an offence to possess for the
purpose of trafficking anything on the "Schedule II of banned
substances."
5. Leaving repealed legislation on the books and counting on the
judiciary to remember, or the bar to remind the judiciary to
remember, when the written word does not apply can lead to
wrongful prosecutions when the judiciary or the bar forget.
6. In this case, the judiciary forgot, and the bar failed to
remind the judiciary, that the Court of Appeal found the
marijuana prohibition in s.4 of the CDSA to be invalid resulting
last December in the staying of 4000 improper prosecutions under
the repealed statute. Further, The judiciary and the bar forgot
while 100,000 improper prosecutions were dealt with.
8. This is the biggest foul-up in Canadian legal history. All
because the court believes that there is no need to insist on a
strict written word when counts on judges having unfailing
memories in keeping up with the latest developments in
jurisprudence.
9. Believing that the written word sometimes counts and sometimes
does not count is the reason behind this greatest ever of legal
snafus. It's the reason courts must insist on the strict
interpretation of criminal statutes with no reliance on judicial
memory.
PART IV - SUBMISSIONS ON COSTS
40. Applicant has devoted over 4 years to the abolition of the
prohibition of the safest best herbal medication on the planet
and has suffered arrest and incarceration so the maximum allowed
would be appropriate.
PART V - ORDER SOUGHT
41. Applicant seeks leave to appeal the Oct 7 2003 judgment of
the Ontario Court of Appeal for an Order declaring that the word
"marijuana" was deleted from Schedule II for all sections of the
CDSA.
Dated at Brantford on Oct 6 2004
____________________________
For the Applicant:
John C. Turmel, B. Eng.
======
JCT: Hey, maybe there is some way other than getting all lower
court cases to hinge on these questions being answered to make
sure the Supreme Court realizes that the challenge to the Hitzig
resurrection and Turmel API merits their attention. What if all
medpotters were to write to the Supreme Court Chief Justice
telling her so. I get to tell them them in this Memorandum why I
think it's important enough to be let in to be heard. I guess
there's nothing stopping any Canadian from having some input on
this question at the top too!
For instance, I noticed a post at the Cannabis Vulture's site:
>Orchidman superposter
>Re: the Bloc Quebecois and marijuana legislation
>Date: Thu Oct 07 2004
O: Here's my letter:
Bonjour M. Marceau,
Je m'appelle Brian et j'escrit de Toronto. C'est tres
importante que vous comprende todo de la marijuana avante de
vote sur la nouvelle regime.
Most of what is read in the press is propaganda derived from
the DEA. The RCMP are the slaves of the Americans and have a
vested interest in keeping marijuana illegal.
The lies and corruption in the government is extremely
despicable and makes me ashamed to be a Canadian. My
ancestor was the first Attorney General of Upper Canada,
sent here by the Queen to enforce British law. He certainly
would be disgusted by the performance of the courts of
today.
I don't know if you are aware of the disgusting performance
by the Ontario Court of Appeal who ruled that the Marijuana
law was dead for 2 years and then brought it back to life.
This, according to the rule of law is only a job for
government. They cannot bring a dead law alive again.
JCT: POLCOA right up front.
O: There is no marijuana law at the present time but the dirty
government scum pretend there is a law.
JCT: I'd use less emphatic words.
O: The Alberta court of Appeal in Kreiger ruled the law was dead.
Nobody brought that back to life. The law is dead.
JCT: Two kills are better than one.
O: And thousands of people are being arrested for marijuana when
there is no law. What a crime against humanity. There is no law.
It's a good thing that Quebec didn't sign the constitution. It's
been shredded by the government and turned into a useless piece
of toilet paper. I no longer have my human rights.
The worst is the epileptics. 10 epileptics die every day in
Canada. 6 of them never knew they had epilepsy so we could
not save them.
JCT: Maybe if they all their neighbors had a joint?...
O: The 4 that knew they had epilepsy only had to carry 2
marijuana joints around in their pocket. When they felt the
seizure coming on they could light the joint and prevent the
seizure. They would not die.
JCT: He's got his stats perfectly.
O: But you genocidal maniacs in government can't admit that
marijuana has medical use. Even though there is a licence
available to medical users the doctors won't sign the
applications. 1000 epileptics die in Canada every year
specifically due to marijuana prohibition.
JCT: The genocide card played hard.
O: Now it's coming out that marijuana kills cancer. Do you know
how many people die of cancer? That's genocide, and eventually
all government who supported it will be tried in a world court
for genocide. I promise I will work to this end till my dying
breath.
JCT: I haven't even used the cancer victims, AIDS, Hep C, etc,
victims because 4 epileptics a day in Canada, 40 epileptics a day
in the US, 2000 epileptics a day world-wide, because the best
cheapest anti-seizure herb was surreptitiously added to the
prohibited list with no scientific rationale. Still, 2000
epileptics a day is nothing compared to the 40,000 children a day
who die from preventable poverty-related diseases where interest-
free credit, not marijuana, could save the day.
O: I know that the Bloc have power now in the Government, and I
hope that you will use that power for all Canadians and end the
foolish and dishonest prohibition of marijuana. We need to
institute the Senate report and legalize this harmless and
beneficial plant.
JCT: Most of the Bloc have been subscribed to my Medpot group
since it started and should be completely aware of what's going
on in the non-fiction media-reported world. Parliament has no
excuse not to know.
Still, the writer has put the issues so clearly that I have to
wonder if this letter, minus the cuss words, wouldn't have been
better addressed to the Chief Justice of the Supreme Court
telling her how important the Resurrection Challenge is. I'm sure
he's not the only person reading Medpot to now have the real
story right. And I certainly feel as puked out about all the
corpses too.
But there is nothing illegal about a deluge of paper mail letting
the Supreme Court know the Resurrection challenge is really
important to a lot of people. It's not often that there is the
chance to influence national policy in such a way but helping me
get leave for those questions will be something anyone would have
to be proud of.
If you agree that the challenge the Resurrection Opinion for all
offences should be heard, Supreme Court of Canada, send a note
telling the Chief Justice how important you think it is for them
to grant the leave to appeal the resurrection opinion for all
charges:
And of course, finding someone to make the POLCOA declaration and
getting their cases adjourned pending the SCC is the strongest
persuader. If a whole bunch of cases are hinged on it, the Crown
may even argue they want it in to handle them all at the same
time.
-- 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
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