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. This is part II:

PART II - RESPONSE TO APPLICANT'S ISSUES
-----------------------------------------

33. The Applicant made submissions in regard to the
following five issues that he had identified:

1) Sheppard J. criminal court constitutional exemption for
cultivation remains valid despite a change in name of the
statute prohibiting cultivation.

2) Pitt J. criminal extension of constitutional exemption by
Ontario Court of Appeal remains valid despite being set
aside as a "default judgment" pursuant to the Rules of Civil
Procedure and for improper service to a court which may
dispense with any service at all.

3) S.4 possession prohibition remains repealed pursuant to
the S.2.2 of the Interpretation Act once declared invalid by
the Parker Court of Appeal in 2001 despite S.4 being
resurrected by the Hitzig Court of Appeal for only being
being absent, not repealed, once being declared of no force
and effect by the Parker Court.

4) Section 7 cultivation prohibition and by implication S.4
possession prohibition remain repealed pursuant to the S.2.2
of the Interpretation Act once declared invalid by the
Krieger Court of Appeal of Alberta in 2002.

5) With the MMAR failing to mandate that Parker's doctor
participate in the government's exemption program, S.7
cultivation and S.4 possession prohibitions cannot apply to
Parker because he grandfathered exemption for the sick.

34. The position of the Respondent in regard to these
submissions is as follows;

1) SHEPPARD J. CRIMINAL COURT CONSTITUTIONAL EXEMPTION FOR
CULTIVATION REMAINS VALID DESPITE A CHANGE IN NAME OF THE
STATUTE PROHIBITING CULTIVATION.

35. The Applicant has submitted that "Sheppard J. criminal
court constitutional exemption for cultivation remains valid
despite a change in name of the statute prohibiting
cultivation." In support of this submission, the Applicant
has provided the solitary argument:
"Argument backing up the ground that Parker's Sheppard
exemption remains in force for cultivation and by
implication possession remains unchallenged."

36. It appears that the applicant is presenting the argument
Sheppard J. granted the Applicant an exemption from the
cultivation offence, and that that exemption continues to
apply, which thus provides the Applicant with an exemption
to the possession offence.

37. The Applicant's argument, however, is based on the
misunderstanding of the Ontario Court of Appeal's decision
in respect of Sheppard J.'s judgment. In fact, the decision
of Sheppard J. read down the possession and cultivation
offences concerning marihuana, under both the CDSA and
Narcotic Control Act (NCA) (although Sheppard J. recognized
that the Narcotic Act had been repealed by Parliament
effective May 14 1997), so as to exempt from their ambit
persons possession or cultivating marihuana for their
personal medically approved use. On appeal, the Ontario
Court of Appeal concluded that Sheppard J. did not have
jurisdiction to issue a declaration in regard to the
cultivation offence under the CDSA, and thus the Court set
aside those portions of Sheppard's judgment.

JCT: No, they did not. Just as the Court of Appeal said that
the Section 7 cultivation prohibition was not before them so
they could not strike it down with Section 4 while giving
Terry an exemption against section 7 and 4, so too, the
section 7 cultivation prohibition was not before them so
they could not strike down Sheppard's exemption remedy.
Sheppard's exemption for the Section 4 possession offence
was replaced by the Court of Appeals's exemption during the
period of suspended invalidity but Sheppard's remedy for the
Section 7 violation of Parker's rights was not dealt with
nor was Parker's protection against Section 7 removed. So
the Court of Appeal could not have struck down his Section 7
protection since it was not before them. And it's never been
appealed since. So it's still valid until appealed giving
the court the chance to replace it by some other protection.

CR: As well, since the Narcotic Control Act had been
repealed, the Court ruled that it was unnecessary to strike
down any offending provisions in that Act.

JCT: And since they did not fix Parker's Section 7
predicament like they fixed his Section 4 predicament, and
stated that they could not because it was not before them,
then the remedy to Parker's Section 7 predicament has never
been removed either.

CR: In the result, the Court of Appeal declared the
marihuana prohibition in S.4 of the CDSA to be invalid, but
suspended this declaration declaration for 12 months and
provided the Applicant with an exemption during this period
of suspended invalidity. Contrary to the Applicant's
submission, Sheppard J.'s ruling concerning the cultivation
offence had been set aside by the Court of Appeal.

JCT: If they changed Sheppard's Section 7 remedy, why didn't
they protect him like when they changed the S.4 remedy? When
they removed Sheppard's exemption for Terry from S.4, they
provided their own exemption for Terry from Section 4. If
they really removed his Sheppard exemption from S.7, why
didn't they provide their own exemption from Section 7 too?
And why didn't the Crown then proceed with his trial if his
remedy had been removed? The Court's and the Crown's own
actions belie any statement that the Court removed both
protections and only replaced one.

CR: 38. Accordingly, there is no basis for the Applicant's
argument that the decision of Sheppard continues to provide
the Applicant with rights to cultivate marihuana.

JCT: There is no basis for the Respondent's allegation that
the Court of Appeal removed Parker's Section 7 cultivation,
and by implication, Section 4 possession, protection.

CR: 2) PITT J. CRIMINAL COURT EXTENSION OF CONSTITUTIONAL
EXEMPTION GRANTED BY ONTARIO COURT OF APPEAL REMAINS VALID
DESPITE BEING SET ASIDE AS A "DEFAULT JUDGMENT" PURSUANT TO
THE RULES OF CIVIL PROCEDURE AND FOR IMPROPER SERVICE TO A
COURT WHICH MAY DISPENSE WITH ANY SERVICE AT ALL.

39. The Applicant has submitted that "Pitt J. criminal
extension of constitutional exemption by Ontario Court of
Appeal remains valid despite being set aside as a "default
judgment" pursuant to the Rules of Civil Procedure and for
improper service to a court which may dispense with any
service at all." In support of this submission, the
Applicant has provided the following solitary argument:
"The Pitt decision extending the criminal jurisdiction
exemption granted by the Ontario Court of Appeal cannot be
set aside pursuant to the Rules of Civil Procedure as a
default judgment nor for improper service by a court which
may dispense with service all together."

40. This argument presented by Applicant appears to be based
on a misunderstanding of the legal proceedings subsequent to
the decision of Pitt J. On April 19 2002, Chapnik set aside
the order of Pitt J.

JCT: Gee, if he repeats the result, it must make the process
okay. No

CR: The Applicant then

JCT: Notice absolutely no basis provided for the setting
aside of an criminal Order by an equivalent judge.

CR: sought to appeal the decision of Chapnik and sought a
stay pending appeal. On May 3, 2002, Feldman J.A. refused
the request for a stay of the decision of Chapnik J. On Feb
13 2003, the Supreme Court of Canada dismissed the
Applicant's application for leave to appeal. As well, on Oct
7 2003, the Ontario Court of Appeal dismissed the
Applicant's attempt to review the April 19 2002 decision of
Chapnik J.

JCT: This is pure repetition from earlier.

CR: 41. Despite these court rulings, the Applicant continues
to believe that the Pitt J. decision continues to authorize
him to possess and cultivate marihuana, for the reason that
he believes that Chapnik did not legally set aside the
decision of Pitt J.

JCT: This is repeated too.

CR: 42. In short, the Pitt J. decision was set aside.

JCT: Including no basis provided for one judge setting aside
a criminal Order. Third time it's just repeated without
explaining where Chapnik got the jurisdiction under the
Rules of Civil Procedure to set aside a decision issued
under the Criminal Rules of Practice.

CR: and the Applicant cannot now be permitted to launch a
collateral attack on the decisions that set aside the
endorsement of Pitt J.

3. S.4 POSSESSION PROHIBITION REMAINS REPEALED PURSUANT TO
THE S.2(2) OF THE INTERPRETATION ACT ONCE DECLARED INVALID
BY THE PARKER COURT OF APPEAL IN 2001 DESPITE S.4 BEING
RESURRECTED BY THE HITZIG COURT OF APPEAL FOR ONLY BEING
BEING ABSENT, NOT REPEALED, ONCE BEING DECLARED OF NO FORCE
AND EFFECT BY THE PARKER COURT.

3) The Applicant has submitted that "S.4 possession
prohibition remains repealed pursuant to the S.2.2 of the
Interpretation Act once declared invalid by the Parker Court
of Appeal in 2001 despite S.4 being resurrected by the
Hitzig Court of Appeal for only being being absent, not
repealed, once being declared of no force and effect by the
Parker Court." In support of this submission, the Applicant
has provided the following solitary argument:
"When asked where the Hitzig court got the power to
resurrect a statute that's been struck down, Greg Smith in
R. v. Nielsen et al is the only Crown Attorney to ever
explain that though there was no written authority, the
court wouldn't have done it if it couldn't do it so it can.
The Hitzig Court did not have the authority to order courts
in Canada to ignore the Interpretation Act that a statute
declared of no force and effect was to be deemed repealed
and to follow their order that such statute was to be deemed
merely absent until fixed, not repealed."

44. Section 2(2) of the Interpretation Act provides as
follows: 2(2) "For the purposes of this Act, an enactment
that has expired, lapsed, or otherwise ceased to have effect
is deemed to have been repealed."

JCT: Seems pretty clear to me.

CR: 45. Thus, it appears that the Applicant is presenting
the argument that once the Hitzig decision determined that
the MMAR were flawed, then the Interpretation Act deemed the
prohibition on the possession of marijuana in section 4 of
the CDSA to have been repealed and thus incapable of
"resurrection."

JCT: Seems pretty clear, especially since that is what
Justices Phillips, Rogin, and Chen said of the prohibition
they had deemed repealed because it had ceased to have
effect since Terry Parker Day and as a nullity, could not be
resuscitated. I'm not the only one saying that that's the
way Parliament intended laws that were declared of no force
and effect to be considered by the courts.

CR: 46. Again, the Applicant's argument appears to be based
on a misunderstanding of the order and reasons for decision
of the Court of Appeal in Hitzig which clearly indicate that
section 4 of the CDSA was not repealed:

"[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...

[170] First, if we do not suspend our order, there will
immediately be a constitutionally valid exemption in effect
and the marihuana prohibition in s. 4 of the CDSA will
immediately be constitutionally valid and of full force and
effect.

JCT: Parliament tells the courts to consider statutes which
have been declared of no force and effect to be repealed and
the Hitzig Court of Appeal tells the courts to consider
statutes not repealed but only quasi-struck down.

CR: In R. v. Parker, supra, this court declared the
prohibition invalid as of July 31, 2001 if by that date the
Government had not enacted a constitutionally sound medical
exemption. 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.

JCT: There's the proof that the S.4 prohibition took place
on Terry Parker Day.

CR: Since the July 8, 2003 regulation did not address the
eligibility deficiency, that alone could not have cured the
problem. However, our order has the result of
constitutionalizing the medical exemption created by the
Government. As a result, the marihuana prohibition in s. 4
is no longer inconsistent with the provisions of the
Constitution.

JCT: If it was still alive, it would no longer be
inconsistent. But it's dead.

CR: Although Parliament may subsequently choose to change
it, that prohibition is now no longer invalid, but is of
full force and effect.

JCT: The Hitzig Court brings a penal stature that had been
repealed back to life without Parliamentary scrutiny. Are
they soon bringing back capital punishment?

CR: Those who establish medical need are simply exempted
from it.

JCT: This is the Derek Francisco card. People who can show
legitimate medical need are exempted when they were busted
so they can get their stuff back. They had the implied
exemption of all people with medical need who only need to
prove it to the court if they couldn't or didn't prove it to
Health Canada.

CR: This consequence removes the cloud of uncertainty from
the marihuana prohibition in s. 4 of the CDSA - a cloud
which we were told in argument has created very considerable
confusion for courts and law enforcement agencies alike...

JCT: Resulting in the deaths of over 5000 extra epileptics
in Canada over the past three plus years.

CR: [171] Second, in argument, counsel for the Government
strongly urged that if we found the MMAR to be
constitutionally flawed, we should be as precise as possible
in specifying the corrective measures to be taken.

JCT: Which is exactly what the Parker Court of Appeal said
it would not do as that was a job for Parliament. Lucky we
got a panel of judge willing to do Parliament's job for
them.

CR: Our remedy quite precisely determines the barriers in
the MMAR which, if removed, would render it a
constitutionally sound medical exemption to s. 4 of the
CDSA.

JCT: And they caught them all. No mistakes. It's now perfect
as no bureaucracy or Parliament could design. No mistakes.
Its engineering is now in working order because judges are
such experts in systems engineering.

CR: Our order represents a minimal intrusion on the
Government's scheme of medical exemption.

JCT: An intrusion on Parliament's prerogative the Parker
Court had said was improper for courts to do.

CR: It leaves untouched the licensed possession aspect of
the scheme and modifies the licensed production aspect of it
only enough to make it constitutionally acceptable.

JCT: And, being judges, they got it perfectly right. And
they're accountable, just like Parliament, for any errors.
Not.

CR: 47. These passages from the decision in Hitzig clearly
reveal that the Court did not determine section of the CDSA
to be an enactment that had been repealed.

JCT: These passages will be included in any indictment of
these judges presumptuous enough to seize Parliamentary
prerogative to put me in jail. Someday, we'll get to see
them on the other side of the docket, even if in posterity's
court.

CR: Instead, the Court determined that the marijuana
prohibition within section 4 of the CDSA was inoperative.

JCT: The court used the word "absent" but this is a new one.
We've had quite a few different interpretations from
different Crowns rather than "repealed," "absent" is what
the Court of Appeal said, and now inoperative. Show me in
the Interpretation Act where it says that statutes that have
been struck down are to be deemed "inoperative until made
operative."

CR: This point has been recently confirmed by the Court of
Appeal in response to a similar argument presented by Mr.
Turmel in which he challenged the trafficking offence under
the CDSA.

JCT: The Court of Appeal confirmed its own ruling for lower
courts to ignore the Interpretation Act that says to treat
the prohibition as repealed and only treat them as absent
until fixed. And the Crown remains confused between the
"trafficking" and "possession for the purpose of
trafficking" charge which I was faced; though my argument
that no possession or no cultivation offence negates both.

CR: 4. SECTION 7 CULTIVATION PROHIBITION AND BY IMPLICATION
S.4 POSSESSION PROHIBITION REMAIN REPEALED PURSUANT TO THE
S.2(2) OF THE INTERPRETATION ACT ONCE DECLARED INVALID BY
THE KRIEGER COURT OF APPEAL OF ALBERTA IN 2002.

48. The Applicant has submitted that "Section 7 cultivation
prohibition and by implication S.4 possession prohibition
remain repealed pursuant to the S.2.2 of the Interpretation
Act once declared invalid by the Krieger Court of Appeal of
Alberta in 2002." In support of this submission, the
Applicant has provided the following solitary argument:

"The Hitzig Court of Appeal did not resurrect the Section 7
cultivation prohibition, and by implication, section 4
possession, which had been struck down by the Alberta Court
of Appeal in 2002. Since those arguments are all being
raised in the 3 appeals of John Turmel in the Ontario Court
of Appeal on Feb 23 2007, the factums for the relevant
C44587 appeal against refusal to prohibit charges and C45295
appeal against conviction and failure to permit
constitutional challenge, are appended. Due to the volume of
case law, only the very important appendices used in
Prohibition Applications will be included herein:
App.1: 2000 Jul 31 Parker Ont.C.A. Order on CDSA S.4....(A1)
App.2: 2002 Dec 04 Krieger Ab.C.A. Memorandum on S.7....(A2)
App.3: 2002 Dec 05 Calgary Herald Krieger article.......(A6)
App.4: 2002 Dec 05 Calgary Sun Krieger article..........(A7)
App.5: 2003 May 14 Turmel holds back marijuana bill.....(A8)
App.6: 2003 May 16 S. David Frankel culpability clause..(A9)
App.7: 2003 Oct 07 Hitzig Ont.C.A. Order for MMAR fix..(A10)
App.8: 2003 Oct 07 Turmel Ont.C.A. Order for Parker Day(A12)
App.9: 2003 Dec 08 Turmel stays 4000 since Parker Day..(A14)
App.10: 2003 Dec 23 Krieger Supreme Court Order........(A15)
App.11: 2004 Apr 01 Turmel to A.G. for 100,000 more....(A17)
App.12: 2005 Nov 02 Affidavit of Scott Couper..........(A18)
App.13: 2006 Apr 17 Turmel Consolidated factum C44587..(B01)
App.14: 2007 Jan 28 Turmel Factum C45295...............(C01)
Any other cases cited are referenced by their web site.

49. These above-noted material submitted by the Applicant
refer to the Krieger decisions. However, the argument
presented by the Applicant appears to be based on a
misunderstanding of the significance of the Krieger
decisions.

50. In 1999, Grant Krieger was charged with the offences of
production of marijuana contrary to subsection 7(1) and
possession for the purpose of trafficking contrary to
subsection 5(2). He brought a motion seeking a declaration
that these provisions violate section 7 of the Charter. On
Dec 11 2000, pursuant to subsection 24(1) of the Charter,
Acton J. struck down subsection 7(1) and stayed the charge
against Krieger in respect of subsection 7(1) but permitted
the charge in respect of subsection 5(2) to proceed to trial
where Krieger was subsequently acquitted by a jury. On Dec 4
2002, the Alberta Court of Appeal confirmed the ruling which
struck down subsection 7(1) but ordered a new trial in
respect of Krieger's acquittal of the trafficking charge
under subjection 5(2). On Dec 23 2003, the Supreme Court of
Canada dismissed an application for leave to appeal from
this decision of the Alberta Court of Appeal. As the courts
had ordered a new trial on the trafficking charge, a trial
was held and a conviction was obtained. On a further appeal
to the Supreme Court, on Oct 26 2006, the Supreme Court
allowed the appeal and ordered a new trial, for the reason
that the trial judge had erred when he directed the jury to
find the accused guilty as charged. Meanwhile, Krieger had
been charged with counts of trafficking marijuana on Dec 3
2003 and Jan 2004 contrary to subsection 5(1) of the CDSA,
and on Sep 25, 2006, Krieger was found guilty on both
charges. In short, the Krieger decisions contain a ruling
that the subsection 7(1) production offence was contrary to
the Charter in respect of Krieger.

51. These Krieger rulings, however, are not binding on
Ontario.

JCT: The ruling of the Supreme Court of Canada is.

CR: As well, these rulings on the production offence have no
bearing on the possession offence under section 4.

JCT: But the Crown argued in their Krieger Memorandum that
if cultivation was not illegal, by implication, possession
was not illegal, and now argue the opposite.

CR: Furthermore, the decision of Acton was in respect of
events that pre-dated the MMAR and Acton J.'s decision was
issued prior to the Ontario Court of Appeal's decision in
Hitzig and thus the decision of Acton J. has been superseded
by the MMAR and the subsequent decision of the Ontario Court
of Appeal.

JCT: They're fudging the timing to make that statement. The
Acton decision was already affirmed by the Alberta Court of
Appeal in Dec 2002 before the Hitzig decision was handed
down by the Ontario Court of Appeal in Oct 2003 and it
cannot be said that the Ontario Court of Appeal superseded
the Alberta Court of Appeal. Also, the MMAR was not valid
when Acton and the Alberta Court of Appeal ruled so it could
never supersede their decisions either.

5. WITH THE MMAR FAILING TO MANDATE THAT PARKER'S DOCTOR
PARTICIPATE IN THE GOVERNMENT'S EXEMPTION PROGRAM, S.7
CULTIVATION AND S.4 POSSESSION PROHIBITIONS CANNOT APPLY TO
PARKER BECAUSE HE GRANDFATHERED EXEMPTION FOR THE SICK.

52. The Applicant has submitted that "With the MMAR failing
to mandate that Parker's doctor participate in the
government's exemption program, S.7 cultivation and S.4
possession prohibitions cannot apply to Parker because he
grandfathered exemption for the sick." In support of this
submission, the Applicant has provided the following
solitary argument:
"On July 27 2006, a cultivation charge was withdrawn against
Derek Francisco in Lindsay Ontario after he received his
Health Canada exemption. The Court has a S.24 order dated
Aug. 21 2006 in which Justice Rhys-Morgan signed a S.24
Order prepared by Mr. Greenspoon, Crown Attorney, returning
the controlled substance to Francisco though he only had a
generic claim to Krieger exemption due to illness at the
time."

53. It appears that the Applicant is presenting the argument
that he has a right to possess marijuana that trumps the
regulatory regime established by the MMAR.

54. The Respondent submits, however, that the MMAR is a
valid regulatory regime which must be complied with by the
Applicant. In Hitzig, the Ontario Court of Appeal ruled that
is is appropriate for the MMAR to require doctors and
specialists to act as the gatekeepers of the issuance of
ATPs.
[138] The second attack on the eligibility barriers created
by the MMAR focuses on the use of physicians as gatekeepers
in the sense that every application must be supported by a
doctor and it is that doctor who must declare that marihuana
is recommended to mitigate the symptom involved. It is
argued that this places unwarranted power to determine
whether an individual receives a medical exemption in the
hands of physicians rather than letting the individual
decide for him or herself or having the Minister of Health
do so. It is further argued that the serious concerns of
several central medical groups about the gatekeeper role for
physicians means that doctors will not assist individuals to
obtain medical exemptions.
[139] Again, we do not agree. Whether marihuana will
mitigate the particular symptom of an individual with a
particular serious medical condition is fundamentally a
medical question. Just as physicians are relied on to
determine the need for prescription drugs, it is reasonable
for the state to require the medical opinion of physicians
here, particularly given that this drug is untested.[11] The
second argument is answered by Lederman J.'s finding that
despite the concerns of central medical bodies, a sufficient
number of individual physicians were authorizing the
therapeutic use of marihuana that the medical exemption
could not be said to be practically unavailable...

JCT: Look at the part the Crown dropped:
"This finding of fact is entirely reasonable on the record
in this case and we would not interfere with it. Of course,
if in future physician co-operation drops to the point that
the medical exemption scheme becomes ineffective, this
conclusion might have to be revisited." And the law become
dead again?

CR: [140] The third attack on the eligibility conditions of
the MMAR, and the one focused on in the argument before us,
rests on the requirement that the physician support for a
medical exemption for individuals in category 2 and category
3 must come from specialists...

[142] In our view, this argument too does not succeed. In
order to qualify for a medical exemption, both individuals
in category 2 and those in category 3 must have a
declaration from a specialist practicing in an area of
medicine relevant to the treatment of the individual's
medical condition causing the symptom to be mitigated. The
declaration must say that all conventional treatments for
the symptom have been tried or considered and why each is
medically inappropriate. The requirement for a declaration
in this form serves substantial and compelling state
interests. First, it serves the state interest in protecting
the health and safety of its citizens in relation to an
untested drug. Second, it serves the state interest in
complying with international conventions aimed at
restricting the use of drugs such as marihuana save for
legitimate medical and scientific purposes. A specialist in
the treatment of the particular medical condition is likely
to have more knowledge than a general practitioner of the
complete range of possible treatments, including ones that
may just be emerging. The specialist requirement thus better
assures that marihuana is used only if no other more
conventional medication is effective. Given that marihuana
is an untested drug, this is a substantial and compelling
state interest. So too is compliance with international
conventions that are designed to restrict the use of drugs
save for legitimate medical and scientific purposes a state
interest which the specialist requirement also serves.
[143] Moreover, on this record, the Hitzig applicants simply
have not shown that the specialist requirement is a
significant impediment to obtaining a medical exemption...
Thus, on this record we conclude that the specialist
requirement does not constitute an undue constraint on the
individual's ability to get a medical exemption and
represents a fair balance between the interests of the
individual and the state.

55. Recently, the Nova Scotia Supreme Court ruled that a
person is not exempted from compliance with the MMAR merely
because they have encountered some difficulty in obtaining a
prescription from a doctor.

56. In this case, the evidence reveals that the Applicant
has made only a minimal effort to comply with the regime.
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 for assistance. The Applicant has not made any
attempts to find any other family physician to support his
application. 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. After the Ontario Court of
Appeal released its Hitzig decision, the Applicant's
exemption under S.56 of the CDSA was due to expire on May 31
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 does not "want to worry about my brains
coming out" and objects to having "to go back to criminals
[i.e. doctors] to get further assaulted," and objects to the
MMAR requirement that he provide medical authorization.

57. The evidence also reveals that the MMAR regime is
working well

JCT: A thousand and a half out of a population of several
million who use it medically and a lawyer calls that
"working well." Working well at deterring users, perhaps.

CR: and is effective in providing ill persons with the
marihuana that they desire.

JCT: Very few ill persons.

CR: Since July 1 2005, the Marihuana Medical Access Division
receives... same stats.

PART III - ADDITIONAL ISSUES

58. The Respondent Her Majesty the Queen has been improperly
named. Under Section 23(1) of the Crown Liability and
Proceedings Act, the only appropriate Respondent in a
proceeding of this nature is the Attorney General.

JCT: In the nature of a Criminal Code Section 24
application? First we've heard of this.

CR: PART IV - ORDER REQUESTED

59. The Respondent requests the following relief:

(a) An order dismissing the Applicant's application for the
return of a controlled substance

(b) An order granting costs to the Respondent, and

(c) Such relief as this Honourable Court determines to be
just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this 13th day of March 2007.

Christopher Leafloor
Of Counsel for the Respondent
Her Majesty the Queen

JCT: Her Majesty the Queen wants Terry to pay costs?


--
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