TURMEL: #4 Noreen Evers throws in the kitchen sink

From: John Turmel (bc726_at_FreeNet.Carleton.CA)
Date: 03/17/05 

Date: 17 Mar 2005 20:39:35 GMT

18. On December 03 2003 Health Canada reinstated part of the
Hitzig Ontario Court of Appeal repealed sections 34(2),
41(b) and 54 of the MMAR . Tab ____ Para
 
19. Because of an opinion (obiter dicta) at Ontario Court of
Appeal rulings at Hitzig and JP, and because of Judicial
Comity, Crown is again prosecuting for marihuana offences
that are unknown to law.
 
20. In R. v. Nielsen (14 September 2004), Brantford Doc. No.
04-1379 (Ont. Prov. Ct.)(supra Tab ____) Judge Edwards
stated he was bound by the Hitzig decision in the Ontario
Court of Appeal and ruled against a motion to quash.
 
21. HMTQ v. R. Johnson and S. Johnson, Decision on
Application, File #04-168 Elliot Lake (OCJ) 1 Feb 2004
Transcript of Proceeding before the Honourable Madame
Justice L. Serre at Elliot Lake Ontario February 1, 2005
held that:
 
"The Johnson's were charged with CDSA 4.(1), 7.(1), & 5.(2)
and applied for an application to quash as per s. 601(1) of
the CCC quashing all charges relating to marihuana under the
CDSA as unknown to law."
 
"Mr. Johnson contends that the decision of the Alberta Court
of Queens Bench in R v. Krieger on Dec 11, 2000 affirmed by
the Alberta Court of Appeal, leave to appeal sought by
Canada to the Supreme Court of Canada, dismissed, makes it
clear that section 7 of the CDSA has been declared of no
force and effect. Counsel for the prosecution argues that on
the date of the offence marijuana was a substance listed in
schedule II of the CDSA and was not "unknown to law". He
submitted that the application was without merit and that
the decision of the Ontario Court of Appeal in R. v. Hitzig,
October 7, 2003 cured the constitutional defect. He urges
the court to dismiss the application."
 
"Both the Krieger and the Parker judgments made it clear
that adopting the statements of the Court of Appeal in
Hitzig, any medical exemption to the criminal prohibition
against possession of marijuana would have to address not
just possession but also the means of obtaining the drug
needed for medical purposes".
 
"Therefore, the Ontario Court of Appeal targeted the
constitutional shortcomings it identified and made the
following ruling:
 
1. It declared the requirement for a second specialist to be
of no force and effect; and
 
2. It declared invalid sections which prevented DPL holders
to be compensated to grow for more than 1 ATP holder and to
combine their growing with more than 2 other DPL holders.
 
Given these corrective measures, the regulatory scheme MMAR,
as modified, became a constitutionally sound medical
exemption to the marijuana prohibition in S4 of the Act as
of October 7 2003. Therefore, the finite period of
invalidity began July 30, 2001 and ended with the decision
of the Ontario Court of Appeal on October 7, 2003.
Therefore, s.7(1), s.5(2), and s.4 remain constitutionally
valid. Part 1 of the application is dismissed."

JCT: Where'd she get this?
 
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 judgement;
 
b. It is demonstrated that some binding authority in case
law or some relevant statute was not considered;
 
c. the judgement 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.
 
PART IV
 
THE ISSUES AND THE LAW:
 
23. 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:
 
24. 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?
 
25. Were 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?
 
26. What is the effect of the expiry of a temporary
Constitutional validity granted by a Court of Appeal?
 
27. 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?
 
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?
 
28. 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?
 
What is the effect of the expiry of a temporary
Constitutional validity granted by a Court of Appeal?
 
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?
 
29. 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. 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.
 
30. 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.
 
31. Section 4(1) ceasing to have force and effect on July 31
2001, 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.
 
32. 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.
 
33. 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, (2004) October 7
2003, DOCKET: C39532; C39738; C39740, on appeal from (2003)
171 C.C.C. (3d) 18, the Ontario Court of Appeal affirmed ,
"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.
 
34. Without consideration by the Court of the issue set
forth in paragraph 9, (supra), it must be noted that on
January 9 2003, the Ontario Superior Court of Justice, in
Hitzig 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 10 2003
the MMAR, if not corrected by that date, as has been
conceded by the Crown became invalid.
 
35. 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.
 
36. 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.
 
37. 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
 
38. 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 xxx. 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 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.
 
39. 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)
 
40. 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:
 
41. 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 Crown's
failure to comply and to adhere to the Court's 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).
 
42. 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.
 
43. The sole distinction between the judgment in Parker
(supra) CDSA s. 4 and that of Hitzig et al (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 Hitzig et 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.
 
It is now trite law to state that all of the above cited
judgements declare that the prohibition, (and I stress the
marihuana prohibition itself) has been declared
unconstitutional. Neither possession nor cultivation nor
trafficking in the substance cannabis (marihuana) in and of
itself is an offence known to law. Absent a prohibition
against the acts stated in paragraphs 1b, (supra) we are not
dealing with a crime or an offence known to law. 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. Tab ___
 
The rule of law is that an act not prohibited is permitted.
 
The mere presence within the Schedules of the Controlled
Drug and Substances Act, of the substance cannabis
(marihuana) is not a crime; it is the prohibition that is
essential for criminality to attach. Nat Bell Liquors Ltd.
(supra)
 
The prohibition against marihuana having been declared
unconstitutional and of no force and effect, this
declaration in law cannot but encompass any would be offence
relative thereto. That is to say pretended offences such as
alleged against the applicant, which are rendered so by
reason of the judgments declaring the prohibition against
marihuana unconstitutional, are invalid and of no force and
effect, section 7 and 52 of the Constitution Act, 1982.
 
44. Question: If this Court does finds that the MMAR as
amended by the Hitzig Court of Appeal reinstates the
marihuana prohibition in the CDSA, it would be appreciated
if this Court could also explain how the police, the Crown,
or the Court could differentiate between a "medical"
marihuana user and a "recreational" marijuana user as per
Charter 15.
 
45. If this Court finds that the marihuana prohibition in
the CDSA are unknown to law as per Constitution Act, 1982
s.52, it would be appreciated if this Court would declare by
Order that the Federal laws in fact pertain to all provinces
as per Constitution Act, 1982 s.32. This would alleviate
much pressure on the Courts (and for Crown) in prosecuting
more marihuana charges in various parts of Canada. It would
also save the country millions of dollars in wasted court
expenses and valuable police resources. Should Revenue
Canada impose taxes on profits realized from eventual sales
of marihuana it would increase the country's revenue by
billions of dollars annually, and possibly some of that
revenue could be added to Provincial Health care budgets.
 
46. The charge in the instant matter is an unconstitutional
infringement of the applicant's rights and in conflict with
Charter s. 7. 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.
 
47. 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.
 
PART V
 
ORDERS REQUESTED
 
48. An Order issued on the grounds that no valid law
prohibiting possession of the Schedule II substance
marihuana exists and that the present and any subsequent
proceedings relative to that substance must be dismissed as
an abuse of process; or an Order that the marihuana
prohibition in the CDSA has been ruled unconstitutional and
therefore the CDSA, as it pertains to marihuana, is null and
void;
 
AN Order that Marihuana, the substance itself being
Cannabis, contains the elements of Cannabis resin,
Cannabidiol, Cannabinol and Tetrahydrocannabinol;
 
AN Order that the Medical Marihuana Access Regulations are
unconstitutional and are therefore null and void;
 
AN Order that the Courts are bound by the mandate of
Constitution Act 1982, s. 52 (1), and lack constitutional or
statutory power to suspend declarations of
unconstitutionality of statutes, rules or regulations that
have been found to violate Charter rights;
 
AN Order that Courts cannot read in or read down statutes,
rules, or regulations that have by Interpretation Act s. 2
been repealed;
 
AN Order as per 684. (1) of the Criminal Code of Canada;
 
AN Order to return any grow equipment, and related
paraphernalia confiscated during a search of the premises of
the accused;
 
AN Order to return the value (to be negotiated) of the
plants or plant material confiscated and/or destroyed during
a search of the premises of the accused;
 
AN Order abridging the time for service, filing or hearing
of the application, or amending any defect as to form or
content of the application;
 
AN order that the applicant be granted her costs;
 
AND FOR any Order deemed just.
Dated this 2nd day of March 2005
At Courtenay, British Columbia
Applicant/Accused Signature
 
For the Applicant/Accused:
F.E. Noreen Evers
Black Creek, British Columbia
V9J 1G7
Tel:(250)337-5709
 
TO: Ministry of Justice
TO: The Registrar of the Court
 
SBC 2002 Chapter 48 -- Bill 54 [3rd Session, 37th Parliament]
BILL 46 -- 2002
 
ATTORNEY GENERAL
STATUTES AMENDMENT ACT, 2002
 
Provincial Court Act
 
13 Section 1 of the Provincial Court Act, R.S.B.C. 1996, c.
379, is amended by adding the following definitions:
 
"pension plan rules" mean the rules of the Public Service
Pension Plan;
 
"Public Service Pension Plan" means the Public Service
Pension Plan continued under the Public Service Pension Plan
Joint Trust Agreement;
 
"Public Service Pension Plan Joint Trust Agreement" means
the agreement established under section 18 of Schedule C of
the Public Sector Pension Plans Act.
 
14 Section 2 (4) is repealed.
 
15 The following section is added:
 
Exclusive jurisdiction of judge
 
2.1 In the Provincial Court of British Columbia, only a
judge may
 
(a) commit for contempt of court,
 
(b) hear a matter for which notice under section 8 of the
Constitutional Question Act is required,
 
(c) hear a matter that involves a determination of
aboriginal or treaty rights or claims,
 
(d) hear a matter arising under the Canadian Charter of
Rights and Freedoms for which notice under section 8 of the
Constitutional Question Act is not required, and
 
(e) preside over the trial of a person charged with an
offence for which, on conviction, the person is liable to be
sentenced to a term of imprisonment.
  

--
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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