File No. 2484/08
ONTARIO SUPERIOR COURT OF JUSTICE

Between:
Terrance Parker
Appellant
and
Her Majesty the Queen
Respondent

REPLY TO RESPONDENT'S SUPPLEMENTARY WRITTEN SUBMISSIONS
(in the Appeal of the Order of Clements J. made Dec 7 2007)

1 After the Crown brought the Sfetkopoulos Federal Court of
Appeal decision on failure in MMAR S.41(b.1) to this Court's
attention, Appellant introduced the Supreme Court of Canada's
final dismissal and enlightening background documentation. New
facts make new supplementary submissions necessary for the court
to have the full story.

NOTHING NEW

2. Cr: [1].. The Appellant's supplementary submissions are
completely unnecessary. Both parties addressed the impact of the
Sfetkopoulos decision on Feb 17 2009."

3. Appellant has newly introduced the Crown Memorandum describing
the feared effect of the Sfetkopoulos that needed to be stayed:
"[33] 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."

4. Appellant has newly noted the R. v. Beren decision found in
the Crown's documentation which the Crown herein chose not to
bring to this court's attention in which Madame Justice
Koenigsberg in Paragraph [127] about grower limitations ruled:
"[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."

5. This second MMAR failure in paragraph [127] about the grower
malfunction in Section 54.1 was left unchallenged by the Crown
who responded to her concerns in Paragraphs 94-97 about lack of
doctor participation which Appellant did not newly raise!

6. Appellant newly compares the lapse of the stay of the
Sfetkopoulos effect out of the now functus officio Supreme Court
of Canada being analogous to the lapse of the O'Leary stay of the
Krieger invalidation of the S.7(1) cultivation prohibition when
the Alberta Court of Appeal became functus officio in 2003.

NOTHING CHANGES

7. CR: The recent decision of the Supreme Court of Canada changes
nothing relevant to this appeal.

8. It lifts the stay that prevented Courts from construing the
Federal Court of Appeal's decision as creating a similar period
of retrospective invalidity dating back for 6 years to December 3
2003, the date that s.41(b.1) was re-introduced into the MMAR"
pursuant to the R. v. J.P. ruling that the combined effect of
Parker and Hitzig meant there was no constitutionally valid
marijuana possession offence for 2 years between July 31 2001 and
Oct 7 2003, the date the MMAR were constitutionally rectified by
the decision in Hitzig.

MMAR NOT FLAWED IN GENERAL

9. CR: 3. The Federal Court of Appeal addressed only paragraph
41(b.1) of the Marihuana Medical Access Regulations (MMAR)
finding that provision unconstitutional.

10. The Beren decision addressed paragraphs 41(b.1) and 54.1.
This case also addresses the 60:1 odds of finding a doctor. The
J.P. decision addressed 4 paragraphs.

11. CR: The Court did not address the constitutional validity of
ss.4(1) of the CDSA..

12. Appellant concedes that York University Osgoode Hall Law
School "Professor Alan Young Did Not Ask" that the link feared by
the Crown between the last 6 years being analogous to the Parker
2 years of invalidity be made that discovering a short in the
MMAR exemption shorts out of the CDSA prohibition. To argue that
the Appellant cannot ask that the feared analogy be made because
Court Clutz Young failed to ask is not a valid reason. . It has
been left to Appellant Terry Parker to invoke the Sfetkopoulos
effect feared enough by the Crown to be stayed twice. Since this
failure of Professor Young to make the J.P. link is cited in all
the judgments raised by the Crown to argue the link does not
exist, I'll henceforth dub it the PAYDNA conclusion: "Professor
Alan Young Did Not Ask."

13. CR:.. or the constitutionality of the MMAR scheme in general.

14. The J.P. Court of Appeal ruled the CDSA prohibition was
shorted out when it found 4 constitutional malfunctions in the
MMAR exemption without having to address the constitutionality of
the MMAR scheme in general. Sfetkopoulos found one flaw in
S.41(b.1). Koenigsberg J. in Beren addressed two flaws in both
S.41(b.1) and S.54.1. And Appellant Terry Parker addresses a
third MMAR malfunction in the long odds of finding a doctor. If
J.P. did not have to address every problem with the whole MMAR
scheme in general, Appellant doesn't have to either. To say that
the CDSA is not shorted out because only a few malfunctions have
been discovered in the MMAR and not all is technically inane.

15. CR: As a result, the decision cannot result in the
constitutional invalidity of ss.4(1) of the CDSA as suggested by
the Appellant.

16. PAYDNA again, because Ganja Gilligan Young failed to strike
at the heart of the beast does not preclude Terry Parker from
striking where no one has struck before.

17. CR: 4. The Federal Court itself has since recognized that the
decision in Sfetkopoulos does not invalidate the prohibition
against possession of marihuana. In the case of Edwin Pearson et
al v. HMQ, Prothonotary Aalto explained situation as follows:
"[16].. nothing in the Sfetkopoulos decision suggests that
section 4 of the CDSA is of no force and effect."

18. Appellant agrees Court Clutz Professor Alan Young Did Not
Ask, PAYDNA.

19. "[17] In sum, while the earlier medical marihuana
jurisprudence (Parker, supra) did challenge the constitutional
validity of s.4 of the CDSA, the cases have shifted in their
focus to the operation of the medical marijuana supply regime
codified under the MMAR."

20. None of the Alan Young-inspired cases challenged the CDSA
prohibition. All challenged shorts found in the MMAR exemption
without making the J.P. link to short out the CDSA prohibition.
Only Turmel-engineered jurisprudence has ever challenged the
constitutional validity of the CDSA with the shorts found in the
MMAR as in the case herein.

21. ".. And while the skirmishes concerning the MMAR are ongoing,
none of the jurisprudence concerning the MMAR has attacked the
underlying validity of s.4 of the CDSA." [Emphasis added]

22. Yes, Professor Alan Young Did Not Ask, PAYDNA.

23. CR: 5. Prothonotary Aalto's decision was subsequently upheld
by Justice Hughes.

24. We agree with the Aalto and Hughes rulings that PAYDNA.

R. V. LONG

25. CR: 6. The question of whether the decision in Sfetkopoulos
invalidates ss.4(1) of the CDSA was recently addressed by Justice
Frank in R. v. Long.

26. This is not true. Frank J. specifically refused to address
the non-related Sfetkopoulos ruling stating at:
http://www.canlii.org/en/on/onsc/doc/2008/2008canlii64390/2008canlii64390.html
"[45].. this appeal proceeds on different grounds and must be
determined exclusively on the basis of the factual record before
the court in this appeal.
[46] Unlike Sfetkopoulos, this appeal involves a review of the
constitutionality of an entire regulatory scheme and the question
of whether a policy must be embodied in law for the Regulations
to be constitutionally valid. Strayer D.J. refused to consider
the trial decision in the case at hand, stating that the issue of
whether the policy in issue should be embodied in law was not
relevant to his finding. Consistent with that, the Federal Court
of Appeal did not address the issue.
[47] Both the facts and the issues in Sfetkopoulos are
distinguishable from this case and it is therefore of no
assistance to Mr. Long in the determination of the issue on this
appeal."

27. Appellant agrees with both Justice Strayer and Justice Frank
that whether the MMAR must be embodied in policy or in law is
"very different," "distinguishable" and irrelevant to whether the
MMAR has malfunctions.

The Crown has once again misinformed the Court by suggesting "the
question of whether the decision in Sfetkopoulos invalidates
ss.4(1) of the CDSA was recently addressed by Justice Frank in R.
v. Long" and Appellant submits that it is contemptuous to suggest
Justice Frank ruled on something irrelevant when she evidently
did not.

28. Justice Frank concluded that ss.4(1) is not invalidated by
the decision in Sfetkopoulos.

29. Though we agree that "Professor Alan Young Did Not Ask" that
ss.4(1) be invalidated by Sfetkopoulos, PAYDNA, Justice Frank
concluded that ss.4(1) is not invalidated by the Borenstein
technical decision in Long only.

30. Appellant cites at least 7 times Justice Frank notes the LINK
between the CDSA invalidity whenever there is a flaw in the MMAR:
- [1].. That exemption has given rise to challenges regarding the
constitutionality of the s. 4(1) prohibition.
- [3].. whether the scheme in place does not provide a
constitutionally acceptable medical exemption to the criminal
prohibition.
- constitutionality is dependent on two conditions being met:
- [6] s. 4(1) violated s. 7 of the Charter, as there was no
constitutionally acceptable medical exemption..
- [7].. the Regulations were found to be inadequate,
- [17].. whether the government had responded to the
inadequacies identified in Hitzig in a constitutionally
acceptable manner... whether the s.4 (1) prohibition is in breach
of s. 7 of the Charter.
- [39] those circumstances that resulted in s. 4 of the CDSA
being found unconstitutional have been remedied.

R. V. POELZER

31. CR: 8. The same conclusion was reached by the Supreme Court
of B.C. in Ryan Poelzer v. Regina.

32. Justice Rounthwaite ruled at:
http://www.provincialcourt.bc.ca/judgments/pc/2008/01/p08_0102.htm
R: "Issues: Should there be a stay of proceedings on the grounds
that s.4(1) of the CDSA is invalid because the MMA Regs violate
the Charter?
[17].. With these provisions struck, the MMA Regs and the
prohibition under s.4(1) of the CDSA were declared valid.
[18] In December 2003 the federal government re-enacted two of
the three supply-limiting regulations struck down by the Ontario
Court of Appeal in Hitzig,
[20] The Crown cites Kubby as conclusive of the constitutionality
of the MMA Regulations... The court held that that the applicant
lacked the necessary factual basis for her application.
[24] It is true that the judgment did not refer to the fact that
two provisions of the MMA Regs were re-enacted verbatim after
being struck in Hitzig, a fact that is central to the cases of R.
v. Long[9] and Sfetkopoulos et. al. v. Attorney-General of
Canada[10], cited by the Applicant. However, the B.C. Court of
Appeal approved the B.C. Supreme Court judgment in Kubby.. found
the MMA Regulations valid."

33. Actually, the MMAR flaws in S.41(b.1) S.54.1 were not central
to Long, only whether it was enacted in policy or in law was.
This is the "no evidence of flaw is evidence of no flaw" theory.
And Kubby is another Alan Young-associated loser proceeding.

34. R: "[26] If I were wrong in concluding that Kubby decides the
matter, I would nevertheless decline to apply the reasoning in
Long and Sfetkopoulos for the following reasons.
[29]... In Sfetkopoulos, the Federal Court Deputy Judge dismissed
Long because.. he considered the question of whether the Supply
Policy should be embodied in law to be irrelevant.
[33] I also consider the remedy accorded in Long 2[21] to be
problematic...
[35] I find the decision of the Federal Court of Canada in
Sfetkopoulos no more helpful than Long. In Sfetkopoulos, a deputy
judge declared s. 41(b.1) of the MMA Regs (the re-enacted 1:1
producer to user ratio) to be unconstitutional and invalid...
[36] However, on March 19, 2008, the Federal Court of Appeal
granted a stay pending appeal[22] of the Trial Division's
judgment in Sfetkopoulos. The Crown correctly asserts that, due
to the stay, the declaration that s.41(b.1) of the MMA Regs is
unconstitutional has no effect until the appeal is disposed of.
The Applicant replies that its reasoning is persuasive and should
nevertheless be applied.
[37] I reject the Applicant's submission for these reasons. The
Sfetkopoulos decision is based on a factual finding that the
current system under the MMA Regs and the Supply Policy does not
adequately meet the needs of medical marijuana users, but the
judgment does not explain the evidence supporting this finding.
The judgment mentions that 20% of ATP holders were obtaining
marihuana from the government supplier in July 2007, but does not
explain the inference drawn from this fact, and provides no other
facts to support the finding that many medical marihuana users
were forced to obtain the drug illegally.
[38].. Applicant's argument based on Sfetkopoulos requires
proof.. Applicant cannot rely on Sfetkopoulos without
establishing the underlying facts on which the analysis is based.
[39] There is no evidence before me of access problems...
There would have to be an evidentiary basis... before I could
consider an application based on the reasoning in Sfetkopoulos.

35. Justice Rounthwaite ruled the CDSA was not shorted out by a
flaw in the MMAR; not because he disagreed with the Sfetkopoulos
malfunction but because he was bound by the Kubby ruling that the
MMAR were not flawed because Kubby lacked the necessary factual
basis to prove they were. Kubby had shown no evidence of flaws in
the MMAR so he was bound to conclude that there were none.


36. R: [40] However, whether or not Sfetkopoulos is wrongly
decided, as the Crown submits, it did not conclude that s.4(1) of
the CDSA is invalid.

37. Because Professor Alan Young Did Not Ask: PAYDNA!

38. R: A judge of the Federal Court has the power to make
declarations, and the Deputy Judge declared s. 41(b.1) of the
MMA Regs to be of no force and effect.
[41] Even if I felt able to apply Sfetkopoulos without a factual
context, and agreed with its conclusions, the result would not be
a finding that s.4(1) is invalid.

39. According to J.P. precedent, it should have been but except
that Professor Alan Young Did Not Ask, PAYDNA.

40.R: [44] I therefore conclude that s.4(1) of the CDSA is
constitutionally valid for the following reasons:
I am bound by the decision of the B.C. Court of Appeal in Canada
v. Kubby, which held s.4(1) to be constitutionally valid. I am
also not bound by the judgment of the Federal Court Trial
Division in Sfetkopoulos et al v. Attorney-General of Canada,
which is also under appeal and has been stayed pending appeal.
The facts necessary for me to apply its reasoning have not been
proven in this application.

41. So, Justice Rounthwaite rejects Long because the reasoning is
no good and rejects Sfetkopoulos because it is stayed and rather
than rely on the informed judgments made on the evidence of
malfunction in the federal legislation by the Federal Court of
Appeal, Rounthwaite J. chooses to be bound by the uninformed
judgment by his B.C. Court of Appeal that no evidence of
malfunction is evidence of no malfunction. He is not bound by
declaration of "evidence of MMAR malfunction" found in the
Sfetkopoulos while being bound by "no evidence of MMAR
malfunction" found in Kubby, like choosing to keep his eyes
closed.

42. Moreover, it does not conclude that s.4(1) is invalid.
A.E. Rounthwaite Provincial Court Judge

43. PAYDNA again. The Crown has failed to show the Poelzer ruling
rejected Sfetkopoulos on its merits.

R. V. BEREN

44. CR: 9. Finally, the Appellant suggests that the recent
decision of Justice Koenigsberg of the B.C. Supreme Court in R.
v. Beren (released without written reasons Feb 2 2009) supports
his contention that the "physician as gatekeeper" model is
unconstitutional. Quite the opposite is true.
10. It is clear from the following passage from Madam Justice
Koenigsberg's reasons, issued on or about April 7 2009, that the
requirement that a physician authorize a person's use of
marihuana for medical purposes is not a barrier to access:
[94]...

45. Appellant never raised a "physician as gatekeeper' issue from
paragraphs 94-97. Appellant raised paragraph 127 about a flaw in
the grower section:
"[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."

46. Appellant is not arguing that having his family doctor
supervise medication is a barrier. he's arguing that the failure
to make his family doctor participate in the MMAR is, with only 1
in 60 doctors in Ontario participating.

Though there may have been no evidence that lack of physician
participation was a barrier to access, that is not evidence that
lack of physician participation is no barrier to Terry Parker's
access with odds of 60:1 in Ontario. We raised the Beren uncited
Beren decision to show that a second flaw has been judicially
discovered in section 54.1 of the MMAR and the Crown's only
rebuttal is to say it's not too hard to find a doctor!

RECAP

47.Repeated throughout is the PAYDNA notion that the failure of
Court Clutz Ganja Gilligan Young to ask that the analogy be made
between the Parker 2 years of invalidity and the Sfetkopoulos 6
years means the link cannot be made by a less clutzy advocate.

48. Repeated throughout is the notion that "no evidence of
malfunction" equals "evidence of no malfunction." One hundred
courts finding "no evidence of flaw" because they looked in the
wrong place is not "evidence of no malfunction" especially when
other courts are have already pointed them out and condemned them
in the right place. This Court should trust not the judges who
"saw no evidence of failure" but the judges who "saw evidence of
failure" presented by the victims?

49. R. v. Long did not address whether Sfetkopoulos invalidates
ss.4(1) of the CDSA.

50. R. v. Poelzer did not address whether Sfetkopoulos
invalidates ss.4(1) of the CDSA.

51. R. v. Beren did declare a second flaw in the MMAR which the
Crown did not address.

52. Appellant asks the Court to construe the Federal Court of
Appeal's decision in Sfetkopoulos 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" pursuant to the
Court of Appeal in R. v. J.P. which 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."

Dated at Brantford on June 9 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: So that's it. Our last submission to Justice Tulloch.
You have to admit that the Crown's response was pretty
pathetic. Har har har har.