JCT: Canada Post seized marijuana destined for Terry Parker
and he's now pursuing a Section 24 application for the
return of a controlled substance. I've already published his
Written Representations and the Crown (CR:) has now
responded with its Factum. It's 36 pages so I'll abridge or
paraphrase some parts and leave out the notes.

ONTARIO COURT OF JUSTICE
(Criminal Division)

Between:

Terrance Parker
Applicant

and

Her Majesty the Queen
Respondent

RESPONDENT'S FACTUM

March 13 2007


CR: PART I - RESPONDENT'S STATEMENT AS TO FACTS

1. In this proceeding, the applicant, Terrance Parker, has
applied to a justice, pursuant to Section 24 of the CDSA for
the return to him of marijuana that he claims is his and had
been discovered by Canada Post and seized by the police. The
Respondent opposes this application.

1. RESPONDENT'S POSITION ON APPLICANT'S STATEMENT OF FACT

2. The Respondent disagrees with the allegations of fact
contained in the Applicant's Written Representations.

JCT: I wonder what facts they disagree with.

CR: 2. ADDITIONAL FACTS RELIED UPON BY THE RESPONDENT

3. The Respondent relies on the following facts.

(a) R. v. Parker (Ontario Court of Appeal)
------------------------------------------

4. On Dec 10, 1997, Sheppard J. stayed proceedings..
concluded Applicant required marijuana to control epilepsy
and the prohibition against marijuana infringed on the
Applicant's rights under section 7 of the Charter. The judge
read into the legislation an exemption for persons
possessing or cultivating marijuana for their "personal
medically approved use.

5. On appeal, the Ontario Court of Appeal concluded...
Applicant needed marijuana to control his epilepsy and that
prohibition on the cultivation and possession of marihuana
was unconstitutional... The Court disagreed with Sheppard's
remedy of reading into the legislation an exemption for
medical use, stating that this was a matter for Parliament
to resolve.

JCT: Yet fixing it when the first Parker Court of Appeal said
Parliament had to do it is what the Hitzig Court said it
did.

CR: The Court, therefore, declared the prohibition against
possession of marijuana in subsection 4(1) of the CDSA to be
invalid, but suspended the declaration for one year to
provide the Government with an opportunity to respond. In
addition, the Court ordered that Parker is "exempt from the
marijuana prohibition in s.4 during the period of suspended
invalidity for possession of marijuana for his medical
needs. The Applicant knew that this exemption applied for
only twelve months.

JCT: And if the Court cancelled his S.7 cultivation
exemption from Sheppard as the Crown infers, they did not
also replace it to protect Parker against the continuing
marijuana prohibition in S.7. Applicant's S.7 cultivation
protection was never replaced nor removed during the year of
suspended invalidity of S.4 possession.

CR: (b) Marihuana Medical Access Regulations (MMAR)
-----------------------------------------------

6. [... On July 30 2001, the Government enacted the
Marihuana Medical Access Regulations (MMAR). The MMAR
provided seriously ill persons with a process by which they
could obtain an authorization to possess marijuana (ATP)

JCT: I guess the fact the Hitzig Court did rule, before
fixing it, that the MMAR did NOT provide a proper exemption
process is one of our facts they disagree with if they now
state that the malfunctioning MMAR did provide a process for
exemption.

CR: and a personal-use-production license (PPL) to permit
the production for medical purposes or a designated-person
production license (DPL) to permit a designated person to
grow for an ATP holder....

(c) Health Canada's efforts to assist the Applicant
---------------------------------------------------

7. [... At the end of this twelve-month period, on July 30
2001, the MMAR were enacted so as to cure the constitutional
invalidity identified by the Court of Appeal.

JCT: And the Hitzig Court eventually ruled that the MMAR had
not cured the problem on time and that the invalidation of
the S.4 CDSA prohibition on possession had taken effect on
Aug. 1 2001 until they fixed it on Oct 7 2003.

CR: The following day, on July 31, 2001, the Applicant's
constitutional exemption expired.

JCT: But his protection under his S.7 exemption still
remained.

CR: Thus, as of July 31 2001, the government and the
Applicant believed that the Applicant was once again subject
to the prohibition on the possession of marijuana.

JCT: But John Turmel was celebrating with Terry Parker that
there was no more prohibition to threaten Parker because the
MMAR had not complied in safetying him from it on time as
the Parker Court had ordered. Since we were celebrating the
Terry Parker Day Declaration two years before the Hitzig
Court of Appeal granted the Terry Parker Day Declaration is
indicator that though the government may have believed he
was once again subject to the prohibition, Parker believed
his engineer who knew the prohibition had been invalidated
by a fumble in the end zone by the Ministry of Justice.

CR: 8. Commencing on July 23 and Aug 8 2001, the Applicant
began to take steps to ensure that he would not be charged
with the offence of possession of marihuana. In particular,
the Applicant's counsel wrote to Health Canada to request
that the Applicant be granted an extension of his exemption
from the offence prohibiting the possession of marijuana.

JCT: Like all lawyers, he didn't know that his victory had
just taken effect on Terry Parker Day 2001. Because the
lawyer who won the declaration of invalidity didn't realize
his victory had taken effect doesn't mean it had not, the
Hitzig Court said it had, only Harnett didn't know it. So,
he sought protection for Parker thinking the prohibition was
valid just as I later sought for Parker knowing it was not
but also knowing that the cops busting Parker didn't know it
yet. Neat that only Engineer John Turmel knew it was invalid
from the fact Parker had been left unprotected without
needing validation by a higher court like all the lawyers
and judges did. If Parker wasn't protected, it didn't work
on time. Real hard to bet on. Not.

CR: 9. On Sep 14, 2001, Health Canada notified the Applicant
that he had been granted, pursuant to S.56 of the CDSA, a
six-month exemption from the laws that prohibit the
possession of marijuana to give him an opportunity to apply
for an ATP exemption to expire on March 14 2002.

JCT: Six weeks too late, they gave him an exemption while
the law was dead and now say that makes the law alive.

CR: 10. On Nov 14 2001, his lawyer Aaron Harnett reported to
Health Canada that Parker had found a neurologist and would
file. On cross-examination, Parker claimed the neurologist
was located not in Toronto but in Vancouver.

(d) Hitzig et al. v. Canada (Ontario Superior Court)
-----------------------------------------------------

11. On March 13 2002, the day before the expiry of his
exemption, Applicant commenced an Ontario Superior Court
application requesting a continuation of his "constitutional
exemption from the offence of possession of marijuana and an
order "declaring prohibition of marijuana in the CDSA to be
of no force and effect."

JCT: Of course, this isn't what Parker asked for. Parker
already won the declaration it to be of no force and
effect, suspended 1 year. The Crown deleted the actual
request in Parker Two which was for a declaration of
invalidity "SINCE TERRY PARKER DAY Aug. 1 2001 by cutting
out the "since Terry Parker Day Aug. 1 2001." Then again,
the crown titled this section "Hitzig" when Hitzig wasn't
even filed until May. We're still in March with Pitt J.

CR:On March 15 2002, Pitt J. granted the Applicant his
requested extension of his "constitutional exemption" as
granted by the Ontario Court of Appeal.

JCT: Under its jurisdiction over Criminal Code cases!!!

CR: The federal Crown then moved to set aside the order of
Justice Pitt.

JCT: Under the Civil Rules of Procedure because you there is
no provision setting aside criminal jurisdiction orders.
That must one of our facts the Crown disagrees with. If they
disagree with it, they drop it from their story line!!

CR: On April 19 2002, Chapnik J. set aside the Order of Pitt
J.

JCT: There is no Criminal Code jurisdiction for one
equivalent Superior Court judge to set aside the Order of
another Superior Court judge extending the criminal
jurisdiction of the Ontario Court of Appeal. Notice how the
Crown continues to evade the fact they used the Civil Rules
of Practice to get one judge to set aside an equal judge.

CR: The Applicant then sought to appeal Chapnik

JCT: Sure, I fought back in the kangaroo civil courts though
I knew Pitt could only be set aside by Criminal Court of
Appeal. Not even the Hitzig Court's civil opinion on
Chapnik's ultra vires setting aside of Pitt matters.

CR: and sought a stay pending appeal.

JCT: Sure, I not only appealed in Civil Kangaroo Court, I
also sought a stay from Civil Kangaroo Court.

CR: On May 3, 2002, Feldman J.A. refused the request for a
stay. On Feb 13 2003, the Supreme Court of Canada dismissed
the Applicant's application for leave to appeal.

JCT: Sure, I not only appealed, sought a stay
unsuccessfully, I appealed that too. If you're going to give
them a fight, may as well be with everything you've got.

CR: On cross-examination, however, the Applicant stated that
he still believes that the Pitt J. decision continues to
authorize him to possess and cultivate marihuana, for the
reason that he believes that Chapnik J. did not legally set
aside the decision of Pitt J.

12. The substantive issues raised by the Applicant's March
13 2002 application were heard together with two other
applications, one of which had been commenced by John Turmel
and Marc Paquette, and another which had been commenced by
Hitzig and others. In the fall of 2002, these three civil
applications concerning marijuana for medical reasons were
heard together by Lederman J. of the Ontario Superior Court
of Justice.

JCT: Since Turmel wasn't sick, obviously, the Turmel gang
weren't there with Parker to prove prohibition was
unconstitutionally bad, again, but to prove that it was
dead, that the Parker Declaration of invalidity in 2000 had
taken effect on Terry Parker Day 2001. Only the Hitzig
applications were about the Marijuana Medical Access
Regulations. Parker, Turmel-Paquette were about the
invalidity of the law having taken place. Nothing medical
about our appeals since Turmel wasn't sick, right? I guess
the fact Turmel wasn't there on medical use is an
inconvenient fact that the Crown would replace with the
notion healthy Turmel was wrong in with a bunch of sick
people. Which is why the Lederman decision throwing me out
because I'm not sick is so funny. It was never about my
being sick!

CR: On Jan 9 2003, Lederman concluded absence of legal
supply for authorized persons was inconsistent with
fundamental justice.

JCT: So the legislation that was to provide the necessary
exemption within 1 year, (by Terry Parker Day) did not work.
And did not work on time... But Lederman J. did not note the
absence of access for Parker as he dismissed Parker's
application with no reasons.

CR: Lederman declared the MMAR to be unconstitutional and
invalid on grounds the framework failed to adequately
resolve issues related to source and supply of marijuana.

JCT: And the Crown didn't stop busting people once they
found out that the MMAR exemption process had failed to
comply to save the prohibition on time.

CR: However, Lederman J. suspended the declaration for six
months

JCT: So they could keep busting people under the
unconstitutional prohibition because it wasn't official yet.

CR: so as to permit the Government of Canada an opportunity
to amend the MMAR or otherwise provide for a legal source.

JCT: And fixing it too late means what? We'll find out
later. So he told everyone the MMAR exemption didn't save
the CDSA prohibition on time but that it's not official and
it can't be said that the MMAR didn't work because he
suspended his ruling. So it cannot be said that the CDSA
became invalid even though everyone knows the MMAR didn't
work. He's saying he can give them more time to fix the MMAR
to save the CDSA from dying two years earlier.

CR: 13. All parties appealed the decision of Lederman.

JCT: Another inconvenient fact they keep repeating it.
Parker, Turmel-Paquette appealed, the others responded and
cross-appealed. We pointed this out, the Crown's version of
that fact is an out-and-out falsehood. Since the Crown
insists on mis-labelling the participants, it must be
important to them to I'll make sure to point out the
repeated falsehood.

CR: (e) Hitzig et al. v. Canada (Ontario Court of Appeal)
-----------------------------------------------------

JCT: And notice how they mis-labeled the whole Pitt issue
under the not-then-existing Hitzig case. Just like the Court
of Appeal changed the name from Appellant Parker et al to
Respondent Hitzig et al. Just to give credit for the Terry
Parker Declaration present therein to sham-victor Alan
Young's Hitzig case.

CR: 14. On July 8 2003, pending the appeals of Lederman,
Health Canada developed policies to ensure the MMAR remained
valid.

JCT: The Crown admits the law used to be "invalid" but so it
now remains "valid?" This is bad English with a sleazy
purpose. Things can only "remain" what they "used to be," or
they revert back. You don't remain something different than
you started out being.

CR: The MMAR provided an option for obtaining access to
seeds and dried marihuana.

15. While the parties waited for the appeals, Health Canada
continued to grant the Applicant, pursuant to S.56 of the
CDSA, exemptions so as to provide further opportunities to
apply for an ATP.

16. The Ontario Court of Appeal released its decision in the
Hitzig matter on Oct 7 2003.

JCT: And changed the style of cause from "Appellant Parker
and others" so it would be called "Respondent Hitzig and
others." When was the last time you ever heard of a decision
named after the Respondent and not the Appellant. Of course,
they didn't want to give credit for the Terry Parker Day
declaration to Terry Parker who had asked for it but to Alan
Young's Hitzig group who had not asked for it.

CR: This decision contains rulings in regard to three
related appeals, one of which was concerning Lederman J.'s
ruling in respect of the Applicant's March 13 2002
application (docket C39738). The Court dismissed the
Applicant's appeal and thus denied Applicant's request that
the court continue his personal exemption.

JCT: But then admitted the Terry Parker Day declaration
within the Hitzig appeal so Alan Young could claim his case
proved the law had been invalid since Terry Parker Day.

CR: In addition, it dismissed the Applicant's attempt to
review the April 19 2002 decision of Chapnik J (docket
number 38113).

JCT: Notice that the reason was so ludicrous that he even
can't state why. The court said Chapnik was right to set
aside Pitt because the application had not been served
properly. Since Superior Courts can dispense with service
altogether, how can there be improper service? And there had
not been improper service! Terry had properly served his
documents!

CR: The Court of Appeal determined that the MMAR were
constitutionally defective and... and remedied the
constitutional deficiencies it had identified...

JCT: They fixed the MMAR two years too late to save the CDSA
prohibition that had become of no force and effect.

CR: 17. As the Court remedied the deficiencies, the MMAR
continued to be constitutional...

JCT: Usually, when you "continue to be," you continue to be
what you were before your statement. So if you say "it
continued to be constitutional," it presumes it continues to
be what it used to be. In this case, it was unconstitutional
and then continued to be constitutional! Har har har har.
So, to use the words "continue to be," you have to apply to
it say it continued to be "unconstitutional". Or it reverted
to constitutional. Since it used to be unconstitutional, it
now being constitutional cannot be construed to mean
"continued to be constitutional." Again, sleazy rhetoric
trying to evade that the law used to be dead. If it
"continues to be" alive, it presumes it to have been alive
to continue to be alive. So just like our real situation could not
earlier "remain" valid when it used to be invalid, it cannot
now "continue to be" constitutional when it used to be
unconstitutional.

CR: and thus the prohibition on the possession of marijuana
under section 4 of the CDSA continued to be constitutional
as well.

JCT: See. From being "unconstitutional," it continued being
"constitutional."

CR: [166] The declarations of invalidity we propose remove
the single unconstitutional barrier to eligibility and
sufficient barriers to supply that ATP holders will be
reasonably able to meet their medical needs from licit
sources. As a result, the MMAR as modified become a
constitutionally sound medical exemption to the marihuana
prohibition in s. 4 of the CDSA...

JCT: Become constitutional 2 years too late.

CR: (f) Hitzig et al. v. Canada (Supreme Court of Canada)
-----------------------------------------------------

18. Hitzig and others sought leave to appeal. On May 6 2004,
their application for leave to appeal was dismissed by the
Supreme Court of Canada.

JCT: To get the federal Ministry of Health supervised by
Provincial courts. Har har har har. Only Federal Courts can
supervise Federal Ministries. It got laughed out of court.

CR: 19. John Turmel's application for leave to appeal was
dismissed by the Supreme Court of Canada.

JCT: As abandoned without adjudication of the issues raised.

CR: 20. On Nov 25 2005, Parker's application for leave to
appeal was dismissed. Applicant's request for
reconsideration was dismissed on July 5 2006.

JCT: As abandoned without adjudication of the issues raised.

CR: (g) The Government's response to the Hitzig decision
----------------------------------------------------

21. The Government responded by amending the MMAR to provide
authorized persons access to marijuana and seeds.

22. Health Canada decided to amend the MMAR in phases... to
ensure persons who are authorized.. have reasonable access
to a legal source. The four differences....

23. Since the fall of 2003, policy development.. guided by
vision of.. a) a government source.. b) distribution through
pharmacies.. c) keeping abreast of risks and benefits, d)
improved surveillance to monitor safety..

24. In Jan 2004, Health Canada's phase 2 had the elimination
of the need for a specialist to sign the medical
declaration.

JCT: Finally, one of the most odious and insulting features
of the exemption system I had objected to had been removed.
Professionals having to get a second opinion is unheard of!

CR: 25. Since July 1st, 2005, 75 new applications to possess
every month, 78 renewal applications,

JCT: People with permanent diseases still have to apply
every year just to make it hard on them and their doctors.

CR: The average processing time is 8 weeks.

JCT: They had stalled Don Appleby and Barry Burkholder for 2
years. And we had won an ultimatum for an answer in 30 days.

CR: As of Nov 2006, 1603 persons had an ATP, 701 in Ontario
supported by 431 practitioners. As of Nov 3 2006, 989
persons hold a Production license and 136 hold a DPL.

26. More Stats.

(h) Health Canada's consultations with stakeholders
---------------------------------------------------

27-30.

(i) The Applicant has not applied for an ATP under the MMAR
-----------------------------------------------------------

31. The Applicant has not been examined by a medical
specialist since 1997 and claims that he cannot "trust
neurologists when all they're interested in is lobectomy."
The Applicant has not approached any medical specialist for
assistance since 1997 but the Applicant unsuccessfully asked
his family physician to support his application for an ATP
under the MMAR. Furthermore, the Applicant's legal
representative, John Turmel, has advised the Applicant not
to make any efforts to find a doctor to support his
application since Mr. Turmel believes that it is the duty of
Health Canada to persuade the Applicant's family physician
to support his application.

32. After the Hitzig decision, the Applicant's exemption was
due to expire on May 31 2004. Although the Applicant's
affidavit asserts he had not received notice that his
exemption would expire, on cross-examination he acknowledged
that he had been informed earlier that his exemption would
expire in May 2004. In anticipation of this expiration of
his exemption, on Feb 19 2004, the Applicant telephoned
Health Canada and indicated that he refused to find a doctor
to sign his application for an ATP. On cross-examination,
the Applicant stated that he could go to see a doctor, but
that he does not "want to worry about my brains coming out"
and objects to having "to go back to criminals to get
further assaulted," and objects to the MMAR requirement that
he provide medical authorization for the following reason:
"Well, I am upset.. As you can see, I've been kicked out of
school, college, jobs, got these seizures and now, I've got
to go back to these - these monsters for doctors to get
permission that they won't provide me. I mean, I'm sorry,

continued...


--
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