ONTARIO COURT OF JUSTICE
(Criminal Division)

Between:
Terrance Parker
Applicant

and
Her Majesty the Queen
Respondent

[continuing...

ISSUE 1: SHEPPARD S.7 EXEMPTION

37. In para.37: "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."

38. This is false. The Court of Appeal stated that the
Section 7 cultivation prohibition was not before them so
they could not strike it down with Section 4. Having not
struck down his Section 7 exemption, they did not need to
replace it with a new exemption like they did for S.4.
Sheppard's exemption from the Section 4 possession offence
was replaced by the Court of Appeal's own 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
and replaced. So the Court of Appeal could not have struck
down his personal Section 7 protection since it was not
before them. And the Crown has never appealed it back to
them yet. So Parker's personal exemption from S.7 remains
valid until an appeal with the chance for the court to
replace it by some other protection.

39. The Crown continued: "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Control Act had been repealed, the Court ruled that it was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."

40. Yet, the Court did find that the S.7 prohibition
violated Parker's rights too. And they did not exempt Parker
from his Section 7 predicament like they exempted him from
his Section 4 predicament, and stated that they could not
because S.7 was not before them. So then the remedy to
Parker's Section 7 predicament has never been removed
either.

41. The Crown continues: "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."

42. Why didn't they exempt him from S.7 like they exempted
him from S.4 if they changed Sheppard's S.7 remedy like they
changed Parker's S.4 remedy? When they removed Sheppard's
exemption from S.4, they provided their own exemption. If
they really removed 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 under Section 7
if his remedy had been removed? The Court's and the Crown's
own actions belie any statement that the Court removed both
personal exemptions and only replaced one.

43. In para.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."

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

ISSUE 2: EXEMPTION FROM PITT J.

45. The Crown repeats three times that Chapnik J. set aside
the order of Pitt J. without explaining how that can be done
when the Criminal Code offers no procedure for setting aside
criminal Orders.

ISSUE 3: RESURRECTION OF S.4 BY HITZIG COURT

46. In para.44, the Crown accepts that 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... but then points out "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. Instead, the Court determined that the
marijuana prohibition within section 4 of the CDSA was
inoperative."

47. The court said the statute was invalid "absent a
constitutionally acceptable exemption," not "inoperative."
The Interpretation Act does not say that statutes that have
been struck down are to be deemed "inoperative until made
operative."

48. The Crown continues: "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."

49. The Court of Appeal confirmed its own ruling that lower
courts should ignore the Interpretation Act that says to
treat the prohibition as repealed and only treat them as
absent until fixed.

ISSUE 4: KRIEGER INVALIDATION OF S.7 REMAINS BINDING

50. Applicant has told the facts of the Krieger case with
respect to Section 7 charge that we are dealing with but the
Crown's version includes what went on with Krieger's Section
5(2) charge that has nothing to do with this. Applicant
agrees with the Crown's following Krieger S.7(1) facts in
paragraph 50 but ignores the S.5(2) charge information in
[parentheses]:
"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." The Krieger decisions
contain the ruling that the subsection 7(1) production
offence was contrary to the Charter:

51. Dropping the irrelevant parts, Applicant agrees that:
"In 1999 Grant Krieger was charged with the offence of
production of marijuana contrary to subsection 7(1)... He
brought a motion seeking a declaration that this provision
violates section 7 of the Charter. On Dec 11 2000, pursuant
to subsection 24(1) of the Charter, Acton J. struck down
subsection 7(1)... On Dec 4 2002, the Alberta Court of
Appeal confirmed the ruling which struck down subsection
7(1)... 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... In short, the
Krieger decision is a ruling that the subsection 7(1)
production offence was contrary to the Charter..."

52. In para.51: "These Krieger rulings, however, are not
binding on Ontario."

53. Case law by provincial courts of appeal is only non-
binding when it is wrong. Otherwise, it is binding. A judge
refusing to follow it has to explain why he disagrees with
the established wisdom! For a court to dismiss for no good
reasons just because it is not bound to follow that is per
incuriam where things that ought to have been considered
were not.
Consider the same ludicrous argument was presented by the
Crown in the Alberta cultivation case where accused gardener
Max Cornelssen sought to prohibit his charges under Section
7 arguing the Alberta Court of Appeal had struck down the
S.7(1) cultivation prohibition in Alberta. Justice Read
accepted the Crown's argument that because only the Court of
Appeal of Ontario had struck down the MMAR in Ontario as
having failed to save the CDSA prohibitions, it was non-
binding in Alberta and since no Alberta court had ruled that
the MMAR had failed, she could hold that it had not failed
and could put the accused to trial, conviction and
incarceration for 3 months. Because the Hitzig decision was
not binding on Alberta, she ignored it stating no reason
why, just that she didn't have to follow it because the CDSA
prohibition had not been struck down in Alberta, only in
Ontario. It's a bad joke for the Crown to argue courts of
appeal that strike down penal statutes do not have national
impact when they are correct. Besides, on such an important
issue, the Supreme Court of Canada's dismissal of the
Crown's case makes the Alberta Court of Appeal's ruling even
more sustained. If it was wrong, the Crown would have
probably been granted leave to appeal. So the Alberta Court
of Appeal striking down the S.7 prohibition and sustained by
the Supreme Court is binding on this court unless why not
can be articulated. To just say the court will not be bound
by Krieger, not because it's a bad bind but because you
don't have to be bound, is the anti-thesis of justice.

54. The Crown also adds that: "As well, these rulings on the
production offence have no bearing on the possession offence
under section 4."

55. Applicant's Appendix 6 cites Crown S. David Frankel's
argument to the Supreme Court that Section 4 was, by
implication, connected to the invalidation of section 7(1).
If one is exempt from cultivation offence, one is exempt
from the possession offence. Having the Crown now argue the
very opposite of what they told the Supreme Court only
demonstrates the contempt in which they hold the courts that
are expected to bend with whatever foul wind they can blow.

56. The Crown also add: "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."

57. The Crown omits the fact that the the Dec 2000 decision
of Acton J. it claims is superseded by the Ontario Court of
Appeal. was sustained by the Alberta Court of Appeal's Dec
2002 decision. The Crown may claim that the Ontario Court of
Appeal supersedes Acton but cannot claim it supersedes the
Alberta Court of Appeal, another inconvenient fact the Crown
would rather omit from its version of the facts. Besides,
the Hitzig decision claims to have unrepealed the Section 4
possession prohibition invalidation by Parker One and said
nothing about unrepealing the Section 7 cultivation
prohibition invalidation by the Krieger Court of Appeal. For
the Crown to ignore that Acton was sustained by the Court of
Appeal of Alberta and then say the Ontario Court of Appeal
supersedes her decision is another sleazy misrepresentation
of the situation. The Ontario Court of Appeal Hitzig
possession decision had no bearing on the Alberta Court of
Appeal Krieger cultivation decision. And the fact Acton
predated the non-functional MMAR has no bearing since the
MMAR did not worked on time.

ISSUE 5: PARKER'S GRANDFATHERED EXEMPTION

58. Applicant agrees when the Crown says in para.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."

59. As long as doctors are allowed to opt out, the MMAR
cannot be said to work for all who need the medication. Yet,
in para.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 gatekeepers of the issuance of ATPs."

60. The problem is that access isn't a function of being
sick but of finding a gatekeeper! The Crown cites paragraphs
138-9 of the Hitzig decision:
[138]... 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]... 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...

61. Here, the Crown dropped the rest of the paragraph:
"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."

62. Appendix 15 is a March 30 2007 Toronto Sun article
titled "Doped up system" where Licia Corbella writes:
"ABSURDITY IN LAW
Yes, it's true the feds now make it possible for sick
Canadians to buy medicinal marijuana through legal means,
but it's almost impossible to find a physician who will
prescribe it. Just another vicious cycle that spins our
legal system into disrepute and throws righteous people in
jail."

63. The exemption scheme remains ineffective as long as
Government cannot provide a list of physicians who will
participate with the exemption system. And so the
prohibition remains invalid, if not for everyone, at least
for already-proven-sick Parker alone.

64. In para.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."

65. The Crown says a ruling of the highest Court in Alberta
is not binding but now cites a lower court ruling from Nova
Scotia.

66. In para.57: "The evidence also reveals that the MMAR
regime is working well and is effective in providing ill
persons with the marihuana that they desire.

67. Fifteen hundred exemptions out of a population of
several million who need it for medical use may qualify as
"working well" for a lawyer but protecting less than a tenth
of one percent isn't what could be called success in the
real world.

68. The version of the facts which the Crown wishes the
court to accept is so filled with errors, lies by omission,
and outright falsehoods, that it's contemptuous to suggest
this court accept any of it.

69. The Applicant has the constitutional right to access to
his medicine no matter whether the Ministries of Health or
Justice think he qualifies or not. That they have failed to
enshrine a workable exemption process for Parker to receive
his medicine is their fault and until they fix their system,
they have no right to deny him his constitutional and hard-
won right to his medicine.



Dated at Brantford on April 12 2007.





_____________________________
Agent for the Applicant,
John C. Turmel
8-37 Colborne St. E.
Brantford, N3T 2G3,
Tel/Fax: 519-753-0645
Email: turmel@...

To: Judge Clements
Ontario Court of Justice
Brampton Ontario
Fax: 905-456-4829

And to: Christopher Leafloor
Of Counsel for the Respondent
Her Majesty the Queen
Email: christopher.leafloor@...
Tel/Fax: 416-973-0392/952-0298


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Abolitionist Debt 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 USENET blog: alt.fan.john-turmel