JCT: This morning, I priorioty posted the following
"Supplementary Written Representations on Sfetkopoulos" to Justice
Tulloch no considering Terry Parker's claim for the return of his
marijuana seized by Canada Post and other relief:

File No. #SCA(F) 2484/08
SUPERIOR COURT OF JUSTICE
(Criminal Division)
Between:
Terrance Parker
Appellant
and
Her Majesty the Queen
Respondent

SUPPLEMENTARY WRITTEN REPRESENTATIONS ON SFETKOPOULOS

1. JCT: Enclosed are:
- Appendix A: Supreme Court of Canada Memorandum of the Crown
Attorney Ron Marzel in the Sfetkopoulos case aided by James
Gorham for their recently-dismissed application for leave to
appeal
- Appendix B: Notice of Motion and Memorandum for Stay of
Execution pending appeal to Supreme Court of Canada
- Appendix C: Order granting the stay of execution "pending
further order of this Court." The Order granting the stay is
unsigned but Crown James Gorham would know.
- Appendix D: Koenigsberg J. ruling severing two flaws in the
MMAR.

2. JCT: In the Memorandum for Leave to appeal:

CR: 1. The Federal Court of Canada has interpreted Section 7 of
the Charter as conferring the right to obtain marijuana from the
supplier of an individual's choice, notwithstanding the existence
of an effective licit supply of marihuana provided by a
Government licensed supplier. If left standing, the decision:
(b) revives arguments that the offence of marijuana possession in
section 4(1) of the CDSA is constitutionally invalid, despite
this Court having settled the issue in R. v. Malmo-Levine.

JCT: So, now left standing, it revives our arguments that the
offence of marijuana possession in section 4(1) of the CDSA is
constitutionally invalid.
The Malmo-Levine decision only stated that Government can
prohibit a controlled substances, not that it did after the
Parker or Krieger invalidations.

4. CR: 33. The judgment in this case may create confusion
concerning the constitutional validity of the prohibition against
the possession of marihuana as set out in S.4 of the CDSA and
therefore compromise existing prosecutions under the CDSA.

JCT: And perhaps necessitating an expunging of the 300,000 bogus
convictions from the victims' criminal records over the past 6
years?

5. CR: In R. v. Poelzer, for example, a prosecution currently
underway in B.C. Supreme Court, defence counsel has argued that,
by virtue of the Ontario Court of Appeal's judgment in R. v. J.P.
the invalidation of s41(b.1) of the MMAR retrospectively
invalidates s.4(1) of the CDSA in respect of marihuana.

CR: Even lawyers are catching on to the fact the prohibition
became invalid when the exemption became invalid.

CR: The Court in R. v. J.P. ruled that the combined effect of
Parker and Hitzig meant there was no constitutionally valid
marijuana possession offence between July 31 2001 and Oct 7 2003,
the date the MMAR were constitutionally rectified by the decision
in Hitzig. Courts may construe the Federal Court of Appeal's
decision as creating a similar period of retrospective invalidity
dating back to December 3 2003, the date that s.41(b.1) was re-
introduced into the MMAR."

JCT: It's what we've been asking the courts to construe too.

In the Applicant's Notice of Motion for a Stay of Execution:

6. CR: 5. If the Order is not stayed pending the proposed appeal,
the public will suffer irreparable harm... Courts of criminal
jurisdiction may interpret the Order as retrospectively
invalidating the offence of marijuana possession in CDSA s.4(1)."

JCT: In the Applicant's Memorandum for a stay:

7. CR: 1. The Federal Court of Appeal has declared s.41(b.1) of
the MMAR constitutionally invalid.

JCT: And now the Supreme Court of Canada let that ruling stand.

8. CR: 17. This Court has recognized that there is a public
"interest in avoiding harm to users and others caused by
marihuana consumption." The effect of the judgment of this Court
is to jeopardize this public interest in two ways:

(2) Courts are being urged and may interpret the FCA's judgment
as retrospectively invalidating the offence of marijuana
possession, trafficking and/or production in sections 4,5, and 7
of the CDSA.

JCT: How can cultivating something legal be illegal? and how can
trafficking in something legal be illegal? and how can possessing
something legal have an illegal purpose?

9. CR: (2) The public interest in maintaining the offence
provisions of the CDSA
21. Members of the criminal defence bar have argued that s.4 of
the CDSA is retrospectively invalid as a result of the judgments
of the courts below.

JCT: And non-members of the criminal bar way before.

10. CR: For example, defence counsel in the R. v. Poelzer appeal
before the B.C. Supreme Court argued that the FCA's judgment
means that Parliament failed to implement a constitutionally
acceptable scheme for ensuring a licit supply of marijuana for
medical reasons, as required in the Ontario Court of Appeal in
Hitzig, and that the prohibition of possession of marijuana is
therefore of no force and effect. While this argument was
rejected by the Court in that case, this has not prevented it
from being raised in other prosecutions.

22. In a judgment issued on Feb 2 2009, without written reasons,
Justice Koenigsberg of the B.C. Supreme Court declared that
s41(b.1) of the MMAR to be unconstitutional on the same grounds
as the FCA in this case, but suspended the declaration of
invalidity for one year. She went further and, on the same
grounds, struck down S.54.1 of the MMAR, which restricts the
number of licensed growers who can grow in common.

R. v. Beren, Feb 2 2009, (B.C.S.C. #131900)
http://www.courts.gov.bc.ca/jdb-txt/SC/09/04/2009BCSC0429.htm

JCT: The highlight of the decision in Beren is:

11. [127] Adopting the reasoning in Hitzig and Sfetkopoulos,
further bolstered by the evidence before this court, I find
ss.41(b.1) and 54.1 of the MMAR contrary to s. 7 of the Charter.
REMEDIES
[129] As the matter now stands, the federal Court of Appeal in
Sfetkopoulos declared s. 41(b.1) invalid and refused to suspend
that declaration. The case is under appeal to the Supreme Court
of Canada.

JCT: Not any more. So:

12. [133] ..Consistent with the reasoning in Schachter v. Canada,
[1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1, these provisions, unduly
restricting DPLs from growing for more than one ATP or growing in
concert with two other DPLs, are hereby severed from the MMAR.
[135] The government, in my view, will need time to put in place
appropriate monitoring and enforcement mechanisms in relation to
such compassion clubs. Thus, it is appropriate to stay the
effect of this declaration of invalidity for one year.
"Koenigsberg J."

JCT: Not just one but two flaws in the MMAR making the CDSA
prohibition invalid according to the on-off reasoning in J.P.

LONG ODDS IN FINDING A DOCTOR IS THIRD FLAW IN MMAR

13. Also, added to the second flaw to the discredit of the MMAR
found by Justice Koenigsberg, this Court has the opportunity to
put a third nail in the MMAR coffin, that is of the long odds in
finding a doctor when a way should have been legislated ensuring
all doctors participate. If Terry Parker's doctor can prescribe
heroin without fear, why can't he prescribe herb without fear?

KRIEGER INVALIDATION GROUND STRENGTHENED

14. Please notice the wording of the Order staying execution
"pending further order of this court." This is the exact wording
used by Alberta Justice O'Leary in staying the effect of the
Krieger invalidation of S7 cultivation prohibition pending
appeal. Crown Attorney David Frankel then raised the novel
argument that the Krieger invalidation never took effect because
the stay pending further order survived the Final Order upon
dismissal of their appeal and still needed to be lifted. Of
course, once an appeal is dismissed and the court becomes functus
officio, no further motions may be made. So Frankel's Foible
results in the Krieger invalidation being stayed forever. When
they win, we lose. When we win, they don't lose.

15. Now here at the Supreme Court, the execution of the
Sfetkopoulos invalidation of the MMAR was stayed "pending further
order of the court" which I maintain is but a standard phrase,
not a prime Order. Now that the Supreme Court has dismissed their
appeal, can the Crown now argue the Frankel Foible that the stay
pending further order still needs to be lifted (even though
motions can't be filed after the court is functus officio) and
ergo, the Sfetkopoulos invalidation is stayed forever a la
Krieger?

16. Of course, I doubt they will dare raise the Frankel Foible to
argue the Sfetkopoulos decision remains stayed forever because a
stay pending further order of the court survives the Final Order
of the Court and still needs to be somehow lifted. The Frankel
Foible has been exposed by this analogous situation at the
Supreme Court as baseless and bolsters Appellant's ground that
the prohibitions on cultivation and possession were invalidated
by Krieger in early 2003 making for a seamless interval of
invalidity between Terry Parker Day and now.

CROWN WON'T AMEND CRIMINAL CODE OF CANADA

17. The Ministry of Justice DID NOT amend the Criminal Code to
reflect the Parker invalidation in 2001, nor the Krieger
invalidation in 2003, nor to reflect the Sfetkopoulos decision.
And I've heard exemptees have a letter from the Minister saying
it will not be amended to comply. Yet, Canada's lawyers and
judges say: It's still in the Code so it must still be valid."

REMEDIES SOUGHT:

18. In the Crown's own words, Appellant Terry Parker asks this
Court for an Order declaring "the Federal Court of Appeal's
decision as creating a similar period of retrospective invalidity
- dating back to December 3 2003, the date that s.41(b.1) was re-
introduced into the MMAR," or, in the alternative,
- dating back to Aug 1 2001, the date the Parker invalidation of
s.4 possession offence took effect, or,
- dating back to July 1 1983 when the Charter enshrined the
rights violated by the prohibition.

CEASE AND DESIST UNTIL PARLIAMENT RE-ENACTS

19. Appellant ask this court to Order the Crown to cease and
desist all marijuana prosecutions, not until Health Canada fixes
the MMAR to turn the penal statute back on, but until Parliament
re-enacts a new constitutionally valid prohibition with a new
constitutionally valid exemption.

ENDING COPS AND GARDENERS OF NATIONAL IMPORTANCE

20. After saddling over 100,000 Canadians with bogus convictions
during the Parker interval the Crown has not managed to saddle
another 300,000 Canadians with bogus criminal records during the
"Sfetkopoulos" interval of invalidity. The stupendous
incompetence or criminality must end. You have the power and a
chance to exercise the full measure of your power on what the
Crown keeps arguing is an issue of national importance.

21. This Court can end this insane war of cops and gardeners and
focus police resources on real crime while saving all those with
medical need who are too afraid of the system to apply.

EXPUNGE CRIMINAL RECORDS

22. Appellant further asks this Honourable Court to Order the
Crown to expunge from their criminal records all the bogus
convictions registered
- since December 3 2003, the date that s.41(b.1) was re-
introduced into the MMAR." or in the alternative,
- since Aug 1 2001 Terry Parker Day when the statute was struck
down and never re-enacted by Parliament, or,
- since July 1 1983 when the Charter enshrined the right that the
prohibition has violated.

GENOCIDE OF THE SICK

23. Finally, in the name of the 4 known epileptics a day who die
and who would not have had they had a joint in their possession
when they felt the aura of their seizure coming on over the past
many years, end this insane genocide against the sick who need
this medication for healing and the against the healthy who could
use it for prevention of all things it's good for once we've got
them but before we've got them.

Dated at Brantford on Saturday May 2 2009




_________________________
Agent for the Appellant
John C. Turmel, B.Eng.,
8-37 Colborne St. E.,
Brantford, N3T 2G3,
Tel/Fax: 519-753-0645,
Email: johnturmel@...

For the Respondent:
Department of Justice,
Ontario Regional Office, The Exchange Tower,
3400-130 King St. W.
Box 36 Toronto M5X 1K6
Tel: 416-954-2929 Fax: 416-952-0298
Per: James Gorham James.gorham@...

JCT: That's all, folks. Best shot at abolition of prohibition
we've ever had.