Jct: Gerard Faux was charged with everything: s....4(1)
possession, s.7(1) cultivation; s.5(2) possession for the purpose
of trafficking. Even though, the s.5(2) presented some problems
because the argument that the possession for the purpose offence
was also invalid while the possession offence was invalid was
made and dismissed in my R. v. Turmel case at the Ontario Court
of Appeal in 2003 and we expected no problem getting the s.4(1)
possession and the s.7(1) cultivation charges dropped because he
had gotten an exemption, all charges were withdrawn yesterday in
Peterborough court.

And Derek is making sure Gerard gets everything back, his
equipment, his money and his 7lbs of marijuana. This should be
the biggest Section 24 Order yet.

RECAP

Gerard and wife Tracy were raided Dec/08. They had eleven plants
(2 in high ) and 7lbs. They had been cooking with marijuana for 5
years now and were charged with 5(2) and 7(1).

They had tried for 3 years to find a doctor to sign our Health
Canada applications but had no family doctor so just gave up.

Because of the charges, they knew they had to get their MMAR
cards to prove their illness. He had severe arthritis and she had
fibromyalgia. They found a doctor in Toronto who signed their
forms and Gerard received his June 09 for 10 grams/day and Tracy
got hers Aug 09 for 15 grams/day.

After the bust they hired a lawyer (not knowing about POLCOA) and
the crown's first offer was to drop the charges to only
possession. That was unacceptable because Tracy would lose her
job and our drug benefits. They then offered to drop her charges
and I plead guilty to possession with an absolute discharge (and
$500. donation).

I hate that donation stuff because when you appeal and win, how
are you supposed to get it back? From the courts, I suppose, or
the Crown.

A friend informed him about POLCOA and he contacted Derek
Francisco that day. Derek pioneered "exemption by sickness" to
get his seized medicine back even though he wasn't exempted at
the time of his arrest, only truly sick, which means exempted.

Gerard and Derek met and Derek helped him prepare his POLCOA
prohibition of charges forms. They were quite impressed with
Derek's help and commitment to the cause and two days later, they
drove down to Peterboro to file his offence. But unfortunately
because he had a lawyer, the Crown would not accept service of
our his POLCOA motion of prohibition. And his lawyer refused to
serve it for hi! So he dismissed his lawyer who e-mailled the
Crown to say he was no longer representing him. But when Gerard
returned to court Jan. 13 to serve the Crown, he refused to
accept it until they formally went in front of a judge scheduled
for Jan 26 (too late because he had a Feb.25 date in the SCO).
I'd have just left it on the Crown's desk, sworn the Affidavit
blurb that I'd given it to him, and filed it.

But he drove back home and phoned Derek who insisted he go right
back to court and do whatever it takes to get my motion filed.
When he got back to court and talked to his lawyer, he was told
it is impossible to see a judge before Jan 26 because they don't
have the paper work yet. Gerard asked him why he just wouldn't
hand it to the Crown on his behalf? The lawyer said: "I want
nothing to do with it but I'll tell you what you can do. Just
leave the motion in the Crown's mailbox; fill out an affidavit of
service and file with the SCO. Good of Tim Johnson to give Gerard
sound advice. He did say the kit was very impressive and well put
together and no one's blaming for not committing career suicide.

While Gerard was standing at the window to file, the Crown came
along and said "Let me give you some advice, get a lawyer". That
was his 3rd unpleasant encounter with this guy.

The best part of all, after his lawyer said there no way he could
be removed from the record before Jan.26, the phone rang when
they got home and it was my lawyer's office telling them to be in
court Fri. Jan 15! At that point, the lawyer withdrew and Gerard
served the Crown and got the POLCOA application filed.

On Jan 15, the lawyer scared Gerard with the Beren case that was
supposedly going to strengthen the Crown's hand and Tracy would
likely lose her job. He thought his deal "to drop her charges"
was good enough "but you think you can do better." Derek did,
didn't' he? the lawyer reminded Tracy she could go her own way.
Gerard thought the Crown and Defence were quite jovial, which I
doubt. After the judge had allowed the lawyer to withdraw, he had
wondered: I don't understand why you would not accept the deal."

And now we know it's the same reason Derek Francisco would not
plead guilty to a law that's dead. Gerard wanted the same
treatment Francisco got. It sure helps to have the Francisco
Free-for-all waved in his face. What a handy precedent for people
who eventually get their exemptions to get all their stuff back
with the withdrawal like Derek. Since many growers are growing it
for their medicine.

Yesterday, Jan 24 2010, the Crown Attorney in Peterborough
withdrew all charges against Gerard and Tracy Faux and only the
Section 24 Order for restitution of his 7lbs remains. But that
should be no problem as it seems the most knowledgeable Crown on
the Derek Francisco precedent was consulted.

And I'd say they don't think so highly of the Beren decision any
more. Maybe they read my analysis that another case citing an
MMAR flaw but forgetting to mention the J.P. link between the
MMAR and CDSA invalidation doesn't mean we have to forget to make
the link too. So we can be pretty sure there's nothing in Beren
that's going to hurt us, only help us with another MMAR flaw
condemned by the courts anew.