JCT: Marijuana helps Rudy Seegobin cope with Crohn's disease
but his doctor would not apply for an MMAR exemption. So
Rudy grew his own until he was busted for cultivation.
He's now looking for another doctor to fill out his
exemption so he can follow in Derek Francisco's footsteps
but in the meantime, his application to prohibit marijuana
on the grounds Parliament never re-legislated a new
prohibition after it was declared repealed by the Alberta
Court of Appeal in R. v. Krieger on Dec 4, 2002 will be
heard in Perth on Dec 12 2006. Since his medical need is
analogous to Krieger's, he can claim a constitutional
exemption a la Krieger too.

Past articles are
Rudy Seegobin: Target For Destruction
http://health.groups.yahoo.com/group/MedPot/message/2144

Derek Francisco helps Rudy Seegobin's Medpot Ultimatum
http://health.groups.yahoo.com/group/MedPot/message/2163

This is the Crown's argument in rebuttal.

SUPERIOR COURT OF JUSTICE
(Eastern Region)
BETWEEN:
RUDY SEEGOBIN
Applicant
Court of Appeal in Krieger will be heard Thursday Dec 14.
HER MAJESTY HE QUEEN
Respondent

WRITTEN SUBMISSIONS OF THE CROWN, RESPONDENT

CR: Part I: History: of the Proceedings

The Applicant was charged on July 27, 2006 with 3 offences
under the Controlled Drugs and Substances Act (CDSA) and 2
vs

2. The charge of production of a narcotic and possession for
the purpose of trafficking are indictable offences and the
Crown has so elected, as the two Breach of Probation charges
are dual procedure.

3. No trial date has been set as of this time.

4. On July 31, 2006, Mr. Seegobin was consequently released
offences under the Criminal Code of Canada (CCC).

5. On August 2, 2006 the respondent received a request for
disclosure from Michael Mavraganis and same was forwarded to
his office.

6. In August, 2006, the respondent received disclosure back
from Michael Mavraganis advising that Mr. Seegobin has
retained new counsel.

at bail court on conditions.
of Justice in Perth and new counsel, J.D. Coon requested
disclosure and same was mailed to him this date.

8. On September 25, 2006, the respondent attended Ontario
Court of Justice in Perth and J.D. Coon was removed from the
record and Mr. Derek Francisco is now to assist the
applicant.

9. On October 12,2006, the respondent telephoned the Judge's
7. On August 21, 2006, the respondent attended Ontario Court
Mr. Francisco.

10. On October 16, 2006, the respondent attended Ontario
Court of Justice in Perth and set date of December 14,2006
at 12:15 pm.

Applications

The Application brought by the Applicant is for an order
secretary and Mr. Francisco to see about motion requested by
under the Controlled Drugs and Substances Act (CDSA).

12. An order staying any charges for marihuana as an abuse
of the court process.

13. An order in the absence of proof that all inmates
convicted since the marihuana prohibitions were repealed,
have been released.

prohibiting prosecution of all charges relating to marihuana
proceeding.

JCT: No, applicants seeks approval of the manner of
recording permitted by Section 136 of the Ontario Courts of
Justice Act that most judges haven't learned very well.
Three Brampton judges so far have blown their tape recorder
tests.

CR: Part II: Issues and the Law
14. And the applicant seeks approval to record the court
15. The applicant's Notice of Application asks the court to
quash the charge against him on two grounds.

Ground One - the Krieger Decision

16. The applicant seeks an order "quashing charges relating
to marihuana under s. 7(1) and 5(2) of the CDSA as unknown
to law on the grounds Parliament has not re-enacted the s.7
cultivation (and by implication s.4 possession) prohibitions

since they were struck down by the Alberta Court of Appeal
in R. v Krieger on December 4, 2002."

17. The case of R. v Krieger1 was concerned with the
constitutionality of the prohibition against the cultivation
of marihuana in the context of Mr. Krieger's production and
use of marihuana to alleviate his suffering from multiple
sclerosis. Acton J. of the Alberta Court of Queen' s Bench
held that section 7.( 1) of the 'CDSA, which makes
which underpin all other marihuana prohibitions in the CDSA
rights to liberty and security of the person as guaranteed
by section 7 of the Charter of Rights and Freedoms.

JCT: Just like it violates Seegobin's right.

CR: She therefore struck down s. 7( 1) to the extent that it
dealt with the production of cannabis marihuana. However she
suspended the declaration of invalidity for one year in
order to give the federal government time to arrange for a
cultivation of marihuana an offence, offended Mr. Krieger's
legitimately required it for therapeutic use.
R. v. Krieger (2000) A.J. No. 1683 (Alta.Q.B.)

18. In 2001 the Alberta Court of Appeal extended the
suspension of the declaration of invalidity made by Acton J.
"until further order of the Court". In fact, that suspension
has never been lifted, presumably because subsequent legal
challenges in Ontario resulted in federal regulations
allowing for lawful access to marihuana for therapeutic
legal source of marihuana to be made available to those who
JCT: Yes, it was never lifted because it expired when the
Court of Appeal became "functus officio."

CR: The constitutional defect in s. 7(1) of the CDSA, which
led Acton J to strike down the section, has thereby been
addressed and remedied and the suspension and declaration
have become moot.
2. R. v Hitzig (2003) 177 C.C.C.(3d) 449 (Ont.C.A.)
use.2
JCT: It's been addressed by being suspended indefinitely?
Har har har.

CR: 19. The applicant's analysis of the effect of the
Krieger decision on the marihuana provisions of the CDSA is
flawed. The authority to issue a declaration of invalidity
is found in section 52 of the Constitution Act, 1982 which
says: s.52(1): The Constitution of Canada is the supreme law
of Canada, and any law that is consistent with the

inconsistency, of no force or effect. (emphasis added).

20. The Krieger decision affected only s. 7(1) of the CDSA
and, as Acton J. was careful to state, only to the extent
that it dealt with the production of marihuana.

JCT: What else does he think we're talking about if not
marijuana?

provisions of the constitution is, to the extent of the
other marihuana prohibitions in the CDSA is neither
factually nor legally correct.

JCT: It was Crown Attorney David Frankel who said the
possession challenge was (by implication) connected to the
cultivation challenge.

CR: In fact, in the Krieger decision Acton J upheld the
constitutionality of s.5(2) of the CDSA - the prohibition
CR: The applicant's assertion that s. 7(1) "underpins" all
trafficking - which had also been challenged by Mr. Krieger.
Section 4(1) of the CDSA - simple possession - was not
addressed in the Krieger case.

JCT: David Frankel, Crown on the case, said it was, by
implication.

CR: 21. In any event, a decision made by an Alberta court
has no binding effect in the province of Ontario.
against possession of marihuana for the purpose of
JCT: Note he's talking about Acton, not the Court of Appeal
we are claiming. He sets up the wrong case and then knocks
it down.

CR: Even if the suspension of the order striking down s.
7(1) of the CDSA had been lifted in Alberta, this would not
have changed the status of that provision in Ontario.

JCT: If the Parker Court of Appeal decision on Section 4 was

Appeal decision on Section 7? Oh right, he's saying the
Acton decision isn't binding, he's ignoring the Court of
Appeal 3-judge decision.

CR: Ground Two - Abuse of Process

22. The applicant further seeks an order staying the charge
against him as an "abuse of the court process on the grounds
all statutes related to marihuana are of no force and effect
binding on all of Canada, why not the Krieger Court of
argument is not explicitly stated, the applicant appears to
be relying on a series of cases concerning the
constitutionality of sections 4.(1) and 7.(1) of the CDSA
which unfolded in Ontario and other provinces between 2001
and 2003. The Crown makes reference only to those cases
which it considers relevant to the issues before the Court.

23. In R. v Parker3, a decision of the Ontario Court of
Appeal released on July 31, 2000, the court held that the
and the Crown knows it". Although the basis for this
of the CDSA must be struck down as it infringed the rights
of liberty and security of the person guaranteed by section
7 of the Charter of Rights and Freedoms in a manner that did
not accord with the principals of fundamental justice.

JCT: They also held the cultivation prohibition infringed on
rights too but the Crown didn't appeal that loss.

CR: Mr. Parker suffered from a particularly severe form of
epilepsy which was only moderately alleviated by
conventional treatment.

JCT: Notice how the bias by inserting his own
adjective "moderately" into the argument. I wonder how he
could call going from up to 80 seizures a day to none
"moderately alleviated." The court never said "moderately,"
the lawyer decided to add the slant!

CR: He found that by smoking marihuana he could
substantially reduce the incidence of his seizures

JCT: Again, is going from 80 seizures a day to none only a
"substantial" reduction? Sounds more like almost completely
reduce the incidence of his seizures.

CR: and, having no legal source of marihuana, began to grow
it himself. The declaration of invalidity made by the court
on July 31, 2000 was suspended for 12 month to give
Parliament time to develop and legislate an adequate
mechanism for individuals to possess and use marihuana for
valid medicinal purposes.
3. R. v Parker (2000) 146 C.C.C.(3d) 193 (Ont.C.A,

24. In response to the Court of Appeal's declaration of
invalidity the federal government enacted the Marihuana
Medical Access Regulations (MMAR), which came into force on
July 30, 2001. Eleven applicants, including Mr. Parker, a
Mr. Hitzig, and Mr. Turmel, then sought orders from the
Superior Court declaring that the MMAR violated their s.7
rights.

JCT: See how handy it was the the Prohibitionists to have
Alan Young Judas Goat case tied to ours? We were asking that
that prohibition be declared invalid since Terry Parker Day,
not the exemption to the prohibition. Alan Young asked to
have the exemption declared invalid after the prohibition
had become invalid on Terry Parker Day.

CR: On January 9, 2003, Lederman J. declared the MMAR
invalid as they failed to adequately provide for a legal,
safe and reliable source of marihuana. He suspended this
declaration of invalidity for six months. All parties
appealed;

JCT: Parker, Turmel and Paquette appealed, the Crown and
Alan Young's Hitzig group cross-appealed. There would have
been no appeal if the guys who don't get mentioned had not
appealed.

CR: The Court of Appeal's decision was released on October
7, 2003 in Hitzig et al v. Her Majesty the Queen.4
4. R. v Hitzig, supra

25. In Hitzig, the Court of Appeal unanimously dismissed the
federal government's appeal

JCT: cross appeal

CR: and found that the MMAR were unconstitutional and a
violation of the applicant's section 7 rights as they failed
to craft an adequate medical exemption into the offence of
possession of marihuana in section 4 of the CDSA.

JCT: So the MMAR failed to satisfy Parker by July 31 2001
and the prohibition became repealed on Aug. 1 2001, Terry
Parker Day.

CR: Rather than strike down the MMAR in their entirety and
declare s. 4 of the CDSA to be of no force and effect,

JCT: Since the Parker Court of Appeal had already declared
s. 4 of the CDSA to be of no force and effect, they couldn't
very well choose not to do it again. It had already been
done so there was no "rather than strike down the law"
possible.

CR: the Court set aside the declaration of invalidity made
by Lederman J. and crafted a narrower remedy more
specifically targeted to the shortcomings it identified in
the MMAR.

JCT: Two years after the prohibition had been deemed
invalid and repealed, the Court of Appeal crafted a narrower
remedy that would have saved the prohibition had been been
done 2 years earlier and declared that fixing it 2 years too
late was just as good as fixing it on time.

CR: The Court itself created a constitutionally valid
medical exemption to s4. of the CDSA, thereby making s. 4 of
full force and effect in Ontario as of October 7, 2003.

JCT: Making it of full force and effect after it had not
been of full force and effect for the past 2 years is a
power of Parliament, not of the Court of Appeal.

CR: However, the court found that between July 31, 2001 (the
date that the suspension of invalidity declared in Parker
expired) and October 7, 2003, there had been no
constitutionally valid prohibition against the possession of
marihuana in Ontario.

JCT: See, at the end of it all, they mention that the law
had actually been invalid since 2001.
And wrongly conclude that the Parker Court of Appeal ruling
affected only Ontario despite the Crown dropping 4000
charges against people all across Canada. It would be stupid
to argue that the federal law must be struck down in each
and every province one at a time.

CR: 26. On the same day that it released the Hitzig
decision, the Court of Appeal released its decision on the
applicant's appeal of the judgment of Aitken J.5. (See
paragraph 4.) The applicant had argued that the effect of
the court's ruling in Parker was to delete marihuana from
schedule II of the CDSA, therefore rendering all marihuana
offences in the CDSA "of no force and effect".
5. R. v. Turmel (2003) 171 C.C.C. 3d [533] (Ont.C.A.)

JCT: Since they could point right at the printed law in the
Criminal Code and establish that it has not been deleted, I
certainly wasn't arguing that it had been deleted. After
all, I could see that marijuana was still there on the list
of banned substances even though the government should
have changed the legislation to reflect the Parker and
Krieger invalidations, the fact the government did not
change the print job to reflect those invalidations is now
used as proof that they were not invalidated. Har har har
har.

CR: 27. The court held that the applicant's argument was
based on a "fundamental misconception" and said the
following:
The declaration of invalidity made by this court in
Parker... does not delete marihuana from Schedule II of the
CDSA. It simply declare: 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. Thus Aitken
J. was correct to dismiss the appellant's argument and we
would dismiss the appeal.6 (emphasis added)
6. R. v. Turmel supra

JCT: The Court argued that the Parker ruling did not affect
the printing of the Criminal Code. The Criminal Code was not
changed to reflect the Court's invalidations of the law. So
the court is pointing out that invalidating the law doesn't
change anything in the written word. This shows most clearly
that the Court of Appeal's ruling that nothing printed had
to change is wrong. Of course, since the prohibition was no
longer valid in the 2002, 2003 Criminal Codes, something
should have been printed differently. Oh right, the court
said there was no need to change the written word, the
judges would remember which written laws and which were
invalid. Courtesy of the judges who had to let 4000 people
go because they didn't remember.

CR: 28. It is respectfully submitted that the grounds upon
which this application is based have been ruled upon by the
Ontario Court of Appeal and said ruling is binding on this
Court.

JCT: Sure, judges can always plead the Nuremberg defense
that proved so useful to the Nazis who also accepted that
rulings are binding, good or bad. The Court of Appeal over-
extended its authority and it is incumbent on this court to
ignore judiciary-created penal sanctions and only obey
Parliament-created penal sanctions.

CR: Both of the grounds stated by the applicant in his
Notice of Application to Quash are premised on the argument
that all prohibitions against marihuana in the CDSA have
been "struck down" or are of no force and effect". This is
the precise point addressed by the Court of Appeal in its
ruling on R. v Turmel, quoted above in paragraph 27, and
characterized by the Court as a "fundamental misconception".

JCT: No, we argue the Court of Appeal is wrong when it told
Courts to ignore the Interpretation Act which says statutes
which have been declared invalid are deemed repealed and
obey the court's new ruling that statutes which have been
declared invalid are only absent, not quite repealed, so
that they may be un-repealed by Courts without Parliamentary
input; courts who now may be able un-repeal capital
punishment without Parliamentary input too?

CR: 29. Attached is the decision of the NBCA in R. v Wood.
Wood operated a "compassion club" providing marihuana to
individuals who claimed to need marihuana for medical
purposes. Woods Club was ultimately found to be a sham at
trial. The decision of the NBCA is important however, in
that the court holds that the amendments to the Marihuana
Medical Access Regulations (MMAR) which post-date the 2003
DCA decision in R. v Hitzig are constitutionally valid and
anyone acting as a "compassion club" or otherwise, who
distributes marihuana outside the MMNA scheme, is violating
the law. This is the first post Hitzig "compassion club"
case to be. considered at the appellant level.

30. Of particular interest are comments of Drapeau C.J.N.B.
at paragraphs 36& 37:
[36] It should also be note that the MMAR Regulations that
concern us here were adopted after Parker and Hitzig were
decided and put into effect a significantly more liberal
regulatory scheme than the one considered in the latter
case. In my view, the scheme under here satisfactorily
answers the concerns raised in Hitzig and easily passes
constitutional muster.

JCT: Two years too late doesn't register in a judicial mind?

CR: [37] It follows that compassion clubs, even those
faithful to their purpose, were not permitted under the law
as it existed on the date specified in the charges against
Ms. Wood.

JCT: What's does a lower-court non-binding ruling on medpot
traffickers got to do with the case of an analogous sick guy
cultivating medpot a la Krieger? Sure it won but it was a
different section. It's like bringing a knife to a gun-
fight.

CR: PART III: Order Requested
31. It is respectfully requested that the application to
quash be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED
THIS 3rd day of December, 2006 at the Town of Smiths Falls,
in the Province of Ontario.
FEDERAL CROWN COUNSEL
Michael V. Ross.

JCT: Pretty weak. Well, as long as Rudy rebuts each point,
we're back to the written word.
Because he's analogous to Krieger, he wants a constitutional
exemption and the charges dropped until he finds a doctor to
sign for his exemption. Until the government system finally
works, he needs a court-granted exemption. Just like
Krieger.

By the way, the Turmel and Drouin-Martin appeals are
slated to be heard on Friday Feb 23 2006 10:30am at Osgoode
Hall, 130 Queen St.E. in Toronto before a bilingual panel of
judges. And they've given us only 40 minutes! Just like last
time. Alan Young got days for his Hitzig case that lost, our
case that won got 45 minutes!


--
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