JCT: http://health.groups.yahoo.com/group/MedPot/message/1000 is
my analysis of the the Ontario Court of Appeal decision in the
Windsor JP technicality.

>[14] The Parker order by its terms took effect one year after
its pronouncement. That order was never varied. After the MMAR
came into effect, the question was not whether the enactment of
the MMAR had any effect on the Parker order, but rather whether
the prohibition against possession of marihuana in s.4 of the
CDSA, as modified by the MMAR, was constitutional. If it was, the
offence of possession was in force. Paired with the suspension of
the declaration in Parker, this would have the effect of keeping
the possession prohibition in force continually. If the MMAR did
not create a constitutionally valid exception, as we have held,
then according to the ratio in Parker, the possession prohibition
in s.4 was unconstitutional and of no force and effect. The
determination of whether there was an offence of possession of
marihuana in force as of April 2002 depended not on the terms of
the Parker order but on whether the Government had cured the
constitutional defect identified in Parker. It had not.

JCT: If the MMAR did not create a constitutionally valid
exception, as Sfetkopouls held, then according to the ratio in
Parker, the possession prohibition in s.4 was unconstitutional
and of no force and effect. The determination of whether there
was an offence of possession of marihuana in force after Dec 3
2003 depended not on the terms of the Parker order but on whether
the Government had cured the constitutional defect identified in
Parker. It had not.

>[29] The Superior Court judge treated this court's order in
Parker as the equivalent of a Parliamentary repeal of s.4 of the
CDSA as it applied to marihuana.

JCT: Ontario Justices PHillips, Rogin and BC Justice Chen all
explained that they were treating the prohibition has repealed
pursuant to S.2(2) of the Interpretation Act that says that laws
that have been struck down by the courts are to be deemed
repealed.

>We do not share that interpretation.

JCT: They do not agree with the interpretation of what striking
down a law means!!! They do not agree with judge deeming struck-
down laws as repealed. These three can tell Canada's judge to
ignore Parliament's Interpretation Act. Worse than that, all
judge have!!!

>For convenience, we repeat the salient words of the order:
The remedy granted by the trial judge is varied by declaring the
marihuana prohibition in s. 4 of the Control Drug and Substances
Act to be invalid.

[30] The order was directed at the marihuana prohibition in s.4
as it existed when Parker was decided. The authority to make the
declaration emanates from s. 52 of the Constitution Act, 1982,
which provides that:
[A]ny law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force
or effect.
[31] The court in Parker, supra, declared that the marihuana
prohibition in s. 4 was inconsistent with the Charter and
consequently of no force or effect absent an adequate medical
exemption.

JCT: No, the court in Parker declared that the marihuana
prohibition in s.4 was inconsistent with the Charter and
consequently invalid.

"absent an adequate medical exemption" was added to the Parker
Court's Order by the Hitzig Court. The Parker Court never said it
was an on-off switch. They just said it was off. the Hitzig Court
added the on switch to the true ruling. Then they used their own
newly-installed switch to turn the prohibition back on. So they
said.

>In making the declaration, the court did not and could not
repeal or otherwise alter the terms of the statute.

JCT: Remember, these are Court of Appeal judges, at the top of
Ontario's greasy totem pole. They know that when a law is struck
down, the Interpretation Act doesn't mean it should be deemed
repealed since their new on-switch added to the Parker off-
switch.

>The court could only declare the constitutionally offensive part
of the legislation to be of no force or effect.

JCT: They declared "Section 4 to be invalid." That's all. So
that's what they did, declare the constitutionally offensive
prohibition on marijuana possession in S.4 to be of no force and
effect." But they didn't add an "absent a valid on-switch."

Just like the Torture judges changing meanings around. If they
can get the Torture Judges, maybe we'll someday get the Genocide
by denial of medicine judges.

>[32] By bringing forward the MMAR, the Government altered the
scope of the possession prohibition in s.4 of the CDSA. After the
MMAR came into force, the question therefore became whether the
prohibition against possession of marihuana as modified by the
MMAR was constitutional. If it was, then the possession
prohibition was in force. If the MMAR did not solve the
constitutional problem, then the possession prohibition, even as
modified by the MMAR, was of no force or effect.

JCT: So it's official, believers in Alan Young's resurrection
switch have to admit that the "stupid gimme" of attaching an
already-declared-unconstitutional condition back again means the
MMAR did not solve the constitutional problem, then the
possession prohibition, even as modified by the MMAR, was of no
force or effect. MMAR

>[33] There was no need to amend or re-enact s. 4 of the CDSA
to address the constitutional problem in Parker. That problem
arose from the absence of a constitutionally adequate medical
exemption.

As the order in Sfetkopoulos demonstrates, the prohibition
against possession of marihuana in s. 4 is not in force when
there is not a constitutionally acceptable medical exemption in
force.