TURMEL: Crown Factum in Drouin's Krieger Quash Parsed
From: John Turmel (bc726_at_FreeNet.Carleton.CA)
Date: 03/11/05
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Date: 11 Mar 2005 19:32:39 GMT
>Date: Fri, 11 Mar 2005 03:00:17 -0800
>From: wworld@island.net (Evers)
>Subject: TURMEL: Crown's Factum in Drouin Krieger Quash!!!
>To: MedPot-discuss@yahoogroups.com
Sorry John - I really want to answer this. I go to court on
the 17th. How did I do?? Noreen
----- Original Message -----
From: <turmel@ncf.ca>
To: <turmel@yahoogroups.com>
Sent: Thursday, March 10, 2005 4:09 AM
Subject: TURMEL: Crown's Factum in Drouin Krieger Quash!!!
> CR: 2. The Respondent notes that there is no evidence
> before this court that the Applicant's production of
> marihuana was intended to satisfy medical need.
N.E. This is not a question of charter rights, this is a
question of law: Charter rights come under a different
jurisdiction and complaint. What the applicant is
questioning, is not whether his charter rights was violated,
but whether there is in fact a law to charge him with.
JCT: Right. Charter right is argued right before his trial
in the step 5 constitutional motion a la Parker/Krieger. And
best of all, Pierre will qualify for medical use. Just like
Richard Johnson, he'll have his doctor's diagnosis of a
"marijuana-useful" illness when that time comes.
> CR: 3. The Respondent's position is that, as a matter of
> fact and law, the Applicant is wrong.
NE. Well, I disagree. Hence here we are in front of the
judge.
JCT: Of course, the guys who oppose will disagree. Kind of a
given. Har har.
> Marihuana has never been removed as a controlled substance
> in the schedules that form part of the CDSA.
NE. Very true. Marihuana has never been removed as a
controlled substance in the schedules. If you look at the
CDSA you will still find it in schedule II. The PROHIBITION
of marihuana is removed as per Parker (OCA):
[11].. I would declare the prohibition on the possession of
marihuana in the Controlled Drugs and Substances Act (CDSA)
to be of no force and effect.
JCT: And how do you effect it's removal for all to know? If
they refuse to amend the legislation, does that mean the old
legislation still rules. If they refuse to amend the
Criminal Code to reflect Parker striking down S.4 and
Krieger striking down S.7, does it mean Parker and Krieger
don't count until they finally can be persuaded to amend the
legislation? Evidently not. This is a criminal omission
committed by the Attorney General.
NE: In the CDSA, marihuana is only listed in the schedules.
The schedules themselves, like the MMAR, do not have
penalties. It is the ACT itself which prescribes penalties.
The OCA Parker court could not delete CDSA itself. That
would mean that EVERY drug is legal, which they clearly did
not want to do. The OCA Parker court could also NOT delete
marihuana from the schedules. They did not have the
authority to do that. It says very clearly in CDSA 60 who
may: (The Governor in Council):
(CDSA) 60. The Governor in Council may, by order, amend any
of Schedules I to VIII by adding to them or deleting from
them any item or portion of an item, where the Governor in
Council deems the amendment to be necessary in the public
interest.
It is pretty clear that it was the PROHIBITION of possession
of marihuana that was the issue, both then and now. H
Crown appears to forget that that which is not prohibited is
permitted. And if something is permitted, than how can one
infer an illegal purpose? Rex v. Nat Bell Liquors Ltd.,
[1922] 2 W.W.R. 30, 128, 91 L.P.J.C. 146, 37 C.C.C. 129, 65
D.L.R. 1.
JCT: The issue is not whether the Court could add "except
marijuana to the sections" or could delete marijuana from
the schedule but whether marijuana is deleted if the only
other alternative to reflect the striking down, actually
saying "except marijuana" in the sections, was not done.
This is my argument in my House of Commons bust to explain
why S.5(2) also dies due to the letter of the law thesis.
There are only two ways to reflect the strike down:
1) amending the section so it's illegal to possess anything
on Schedule 2 "except marijuana" or
2) dropping marijuana from the list.
If they didn't do 1), then 2) happens by default or
implication.
Of course, the Doherty, Goudge, Simmons Court of Appeal say
those aren't the only two ways, that there is a third way,
that judges will remember which sections in the Criminal
Code really apply and which sections do not.
So though we can accept that the Parker Court could not
order marijuana struck as opposed to ordering the section be
amended, this does not mean that the ruling doesn't have to
be reflected in one of the two ways.
>Further, the Court of Appeal in R. v. Parker never did make
>a declaration pursuant to s.52 of the Constitution Act 1982
NE: Very true.
JCT: No, all declarations striking down laws are pursuant to
s.52 of the Constitution Act.
NE: What OCA said was that the marihuana prohibition was
against Parker's charter rights, which was his Section 7
charter rights not his Section 52 charter rights.
JCT: There are not S.52 rights. S.52 defines the power to
strike down laws that are not consistent with the Charter
right.
NE: (Maybe Pierre should bring a copy of the constitution
with him to court so Crown can read it over). Section 7
reads:
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.
JCT: Okay, let's look at Section 52:
"Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency,
of no force or effect.
Constitution of Canada
(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in
paragraph (a) or (b).
JCT: The Canada Act includes the Charter. So when the Parker
Court found that prohibitions on S.4 possession and S.7
cultivation of anti-seizure epilepsy medicine were
unconstitutional violations of Parker's Section 7 Charter
right, they then ruled they were striking down S.4
possession. It was pursuant to their power under Section 52
of the Constitution Act that they can say that a law which
is inconsistent with the provisions of the Constitution is,
to the extent of the inconsistency, of no force or effect.
So their power to strike down the law comes from the
Constitution Act and the standard of constitutionality to be
met comes from the Charter. So I really don't know what that
Crown means when they say the court didn't strike down S.4
under the power of the Constitution Act. Of course it had
to.
NE: What OCA said was that the marihuana prohibition was
against Parker's charter rights, which was his Section 7
charter rights not his Section 52 charter rights.
JCT: Section 52 doesn't deal with any rights. It deals with
the power to strike down laws that are inconsistent with the
Charter.
NE: (Maybe Pierre should bring a copy of the constitution
with him to court so Crown can read it over).
JCT: I never saw the need to explain to judges that courts
have the power to strike down laws under the Constitution
Act when they know courts have the power to strike down
laws. They should already know where they get it from. I
don't spend time proving the obvious. No one's saying the
court's can't strike down the law. So why bring proof they
can? I've never seen the need to make the point that the
courts have the power to strike they know they have. But
again, I think the answer is that the Parker Court did
strike down the s.4 prohibition pursuant to their power
under the Constitution Act. Where else does it say laws may
be struck as inconsistent with the Constitution but in the
Constitution?
> that either the production or possession for the purpose
> of trafficking law was "of no force and effect";
NE: Very true. They said the prohibition on the cultivation
and possession of marihuana is unconstitutional.(at para
10): Para 10 of Parker (OCA) effectively addresses Crown's
entire para 3:
[10] I have concluded that the trial judge was right in
finding that Parker needs marihuana to control the symptoms
of his epilepsy. I have also concluded that the prohibition
on the cultivation and possession of marihuana is
unconstitutional. Based on principles established by the
Supreme Court of Canada, particularly in R. v. Morgentaler,
[1988] 1 S.C.R. 30, where the court struck down the abortion
provisions of the Criminal Code, and Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519, where the
court upheld the assisted suicide offence in the Criminal
Code, I have concluded that forcing Parker to choose between
his health and imprisonment violates his right to liberty
and security of the person. I have also found that these
violations of Parker's rights do not accord with the
principles of fundamental justice.
JCT: No, at this stage, he's talking about the purpose of
trafficking law not having been struck down. The only
arguments are "spirit and letter" of the law to include
other statutes dependent on the ones being struck. If S.4
can be struck by implication of S.7 being struck, as David
Frankel explains, then S.5 can be struck by "letter and
spirit of the law" implications too. You didn't deal with
the Purpose of Trafficking issue he really raised.
NE. Judge Acton at Krieger said the very same thing:
JCT: I think you forgot to include her quote but I believe
you.
> in light of that Court's subsequent decision in Hitzig et
> al, v. The Queen and the Supreme Court's decisions in R.
> v. Malmo-Levine and R. v. Clay, there is no basis for this
> Court to make such an order. The application should be
> dismissed.
NE. You will explain yourself please.
JCT: Don't bet on the Crown doing a good job.
> B. ARGUMENT
> 4. The Applicant sets out a number of grounds that he
> maintains supports his application for an order quashing
> all charges relating to marihuana under the CDSA as
> unknown to law, starting with the decision of the Ontario
> Court of Appeal in R. v. Parker, 2000. However, as
> previously stated, marihuana has never been removed as a
> controlled substance in the schedules that form part of
> the CDSA
NE: This has been dealt with. See above.
JCT: We have to keep repeating that its not being removed is
a crime by the Attorney General's office. Every time they
point out the law has not been amended, we charge them with
their ultimate crime. Reflex. Every time you hear: "It's not
been changed," you answer "Why not?" They admit they didn't
remove it after it had been struck down. This is your judo
move where you turn their statement against them. Yes, it
was not removed when it was struck down. It should have
been. Why not?
> and case law has always supported the contention that all
> offence provisions in respect of marijuana, such as
> production of marijuana, trafficking in marihuana,
> possession of marijuana for the purpose of trafficking
> and importing of marihuana remain in full force and effect
NE: Well, I certainly can't agree with you more. That's
definitely the problem. It's been "case law" that has been
the problem. Cases like the Nielsens, the Johnsons, Stavert,
etc. I am sincerely hoping that this judge doesn't follow
judicial comity in this case and do the same thing. Two (or
more) wrongs don't make a right. As per when not to follow
judicial comity:
22. Judicial Comity is not to be followed:
In Re: Hansard Spruce Mills Ltd. (1954), 4 DLR 590 (BCSC).
Tab ____ Wilson J. sets out the situations in which it is
permissible to depart from the requirements of judicial
comity. Those situations are described as follows:
a. Subsequent decisions have affected the validity of the
impugned judgment;
b. It is demonstrated that some binding authority in case
law or some relevant statute was not considered;
c. the judgment was unconsidered, a nisi prius judgment
given in circumstances familiar to all trial judges, where
the exigencies of the trial require an immediate decision
without opportunity to fully consult authority.
JCT: And of course, these are the subsidiary dependent laws
which fall to the letter and spirit of the law arguments.
> 5. The Applicant's argument is grounded on the fundamental
> misunderstanding of the effect of the Court of Appeal's
> order in Parker.
NE. ?????????????????? I think it might be the other way
around.
JCT: Those are the words of my Court of Appeal where I
argued the letter of the law argument.
> In Parker, the Court of Appeal determined that the
> prohibition against simple possession of marihuana
> in the CDSA was overly broad,
NE. See para 10 (above) I have also concluded that the
prohibition on the cultivation and possession of marihuana
is unconstitutional. Unconstitutional doesn't mean "overly
broad". Unconstitutional means 'an infringement of the
constitution. Maybe you could explain what overly broad
means. I believe that overly means 'large' or even 'extra
large', and broad means 'wide'. Sometimes 'broad' is a nasty
term for a woman, but in the context Crown is using I would
take it to mean 'wide'. So Crown is saying:
"In Parker, the Court of Appeal determined that the
prohibition against simple possession of marihuana in the
CDSA was extra large wide."
I think the Court of Appeal really meant to say exactly what
they did: that the prohibition against possession of
marihuana in the CDSA was "an infringement of the
constitution."
Also, Crown infers "simple" possession. Here is where the
OCA says "simple": "simple" screening device:
[143] In the companion case of R. v. Clay, I have reviewed
at greater length the state's objectives in prohibiting
marihuana. First, the state has an interest in protecting
against the harmful effects of use of that drug. Those
include bronchial pulmonary harm to humans; psychomotor
impairment from marihuana use leading to a risk of
automobile accidents and no simple screening device for
detection; possible precipitation of relapse in persons with
schizophrenia; possible negative effects on immune system;
possible long-term negative cognitive effects in children
whose mothers used marihuana while pregnant; possible long-
term negative cognitive effects in long-term users; and some
evidence that some heavy users may develop a dependency. The
other objectives are: to satisfy Canada's international
treaty obligations and to control the domestic and
international trade in illicit drugs. It remains to consider
whether the deprivation of Parker's rights to liberty and
security of the person enhance these objectives.
At para 203, the Court agrees with the Crown that "simple"
possession of marihuana must be struck down, but then the
Court explains why they don't strike down "simple"
possession:
[203] I do not necessarily accept that all of these problems
necessarily flow from the remedy chosen by the trial
judge.21 I do accept, however, that the Crown has raised
matters of sufficient complexity that reading in is not an
appropriate remedy. For these reasons, I agree with the
Crown that the prohibition on simple possession of marihuana
in s. 4 of the Controlled Drugs and Substances Act must be
struck down.
[204] I point out, however, that this is not a case like
Rodriguez where creating an exception might frustrate the
purpose of the legislation because adequate guidelines to
control abuse are difficult or impossible to develop.
Rather, refusing to read in an exemption demonstrates a
recognition of and respect for the different roles of the
legislature and the courts. There is, in my view, no
question that a medical exemption with adequate guidelines
is possible. The fact that such exemptions exist in some
states in the United States is testament to that. However,
there are many options to consider and this is a matter
within the legislative sphere. There is also a particular
problem in the case of marihuana because of a lack of a
legal source for the drug. This raises issues that can only
be adequately addressed by Parliament.
There are no other references in Parker for "simple".
You also might want to check out the order itself. It
states:
"declaring the marihuana prohibition in s. 4 of the CDSA to
be invalid". It doesn't say "simple possession".
Section 4 is possession. See Nat Bell again. That which is
not prohibited is permitted. If you are allowed to possess,
how can one impute an improper purpose?
JCT: That's Ontario Provincial Judge Earle-Renton's "spirit
of the law" argument. It's worth quoting her.
> as the legislative scheme failed to provide an exemption
> for medical use. The constitutional validity of the
> offence of possession of marijuana for the purpose of
> trafficking in s.5(2) of the CDSA, was not before the
> Court of Appeal in Parker nor was the constitutional
> validity of the offence of production of marijuana in
> s.7(1) of the CDSA.
NE: Very true.
JCT: Of course, the S.5(2) wasn't before the Parker Court.
It was before the Turmel Court now on appeal. As for Section
7(1), by the implication that the Crown didn't appeal their
weaker cultivation loss in Parker, Parker's win of the
possession, by implication, implies Parker's win of the
cultivation too. They they couldn't win the appeal they
chose to fight, how could they win the appeal they chose not
to fight. That's why Acton went that route 6 months later.
Actually, this is the first time I've brought the
implication of the Crown's not appealing the Sheppard ruling
on S.7 into argument!
NE: The Crown only appealed the possession charge. Why?
Because of Nat Bell.
JCT: Who's Nat Bell?
NE: That which is not prohibited is permitted. Cultivation
was not appealed because at Para 208 of Parker the OCA court
says:
[208] I do not accept the submissions of the intervener that
the appropriate remedy is a constitutional exemption for
persons requiring marihuana for medical purposes. In
Corbiere at p. 225, the court held that the remedy of a
constitutional exemption has only been recognized in a very
limited way, "to protect the interests of a party who has
succeeded in having a legislative provision declared
unconstitutional, where the declaration of invalidity has
been suspended".22 Thus, Parker is entitled to a
constitutional exemption from the possession offence under
the Controlled Drugs and Substances Act during the period of
the suspended invalidity for possession of marihuana for his
medical needs. I have also made it clear in these reasons
that if the cultivation offence under that Act were before
this court, I would have held that provision to be invalid.
I expect that the authorities would not subject Parker to
further prosecution under that section in view of these
reasons.
JCT: So we argue that the Crown's failure to appeal the
Parker's cultivation win is an implication that they would
have lost had they appealed and the judge's decision saying
they would have lost had they appealed makes the point that
cultivation went down with possession on Terry Parker Day.
Anyway, what the Parker Court said regarding s.7 which
wasn't on the docket isn't as important as what the Krieger
court said about the Section 7 charge which was on the
docket.
-- 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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