Loading ...
Sorry, an error occurred while loading the content.
 

TURMEL: MedPot Magnificent Seven Memo to Supreme Court

Expand Messages
  • John Turmel
    JCT: Here s the Memorandum being served on the Crown with the Applications for Leave to Appeal to the Supreme Court of Canada. All the others have adopted his
    Message 1 of 1 , Mar 22, 2012
      JCT: Here's the Memorandum being served on the Crown with
      the Applications for Leave to Appeal to the Supreme Court of
      Canada. All the others have adopted his arguments:
      File Number: #
      Appeal Court No: C51187
      IN THE SUPREME COURT OF CANADA
      (ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
      BETWEEN:
      Terrance Parker
      Appellant in appeal
      and
      Her Majesty The Queen
      Respondent in appeal
      APPLICANT'S MEMORANDUM
      TERRANCE PARKER, APPLICANT
      PART I - OVERVIEW
      1. On Nov 7 2011, Ontario Court of Appeal Justices
      Rosenberg, Sharpe, Juriansz heard the appeals by six medical
      marijuana exemptees charged with various prohibition offences
      before and after establishing their medical need; and by "the
      Terry Parker" whose 2000 Ontario Court of Appeal decision
      established his medical need and who is now seeking the return
      of marijuana seized by Canada Post.
      2. The MedPot Magnificent Seven Appellants were:
      1) C51187 Terrance Parker, not MMAR-exempt, seeking the
      return of marijuana seized by Canada Post in 2006 under S.24
      of the C.D.S.A.;
      2) C52007 Gary Pallister, charged but then became exempted
      seeking an Order citing the Crown for contempt of the
      Sfetkopoulos and Beren decisions and expunging all bogus
      convictions while the MMAR exemption was defective and
      possession and production offences of no force or effect;
      3) C53096 Debra McIntyre, charged but then became exempted
      seeking an Order citing the Crown for contempt and expunging
      all bogus convictions while MMAR defective;
      4) C52961 Mark MacDonald, charged then became exempted with
      charges stayed by Crown seeking an Order citing the Crown for
      contempt and expunging bogus convictions while MMAR exemption
      defective;
      5) C52549 Rob McCrady, charged but then became exempted and
      appealing conviction for Possession under S.4(1);
      6) C52898 Wayne Hearn, charged but then became exempted and
      appealed conviction for Production under S.7(1);
      7) Sean Maloney, charged but then became exempted and
      appealed conviction for Possession for the Purpose of
      Trafficking under S.5(2) and a 30-day jail sentence to be
      served on week-ends.
      3. The Crown noted the challenges to the CDSA marijuana
      offences were based on arguments promulgated by John Turmel
      that have been dismissed over the years. Despite Crown
      opposition, the Court nevertheless allowed John Turmel to help
      the Appellants argue those Turmel arguments:
      1) BENO: J.P. ruled: Bad Exemption = No Offence;
      2) POLCOA: Parliament Only Legislates, Courts Only Abrogate;
      3) HITZIG170: Establish medical need to simply be exempt;
      4) NODOCTOR! Health Canada has not yet persuaded Parker's
      doctor's association to participate in the MMAR exemption
      regime!
      4. On Dec 22 2011, the Court of Appeal dismissed all the
      appeals ruling:
      5. PARKER REASONS [1] This appeal involves the dismissal
      of an application for return of seized marihuana pursuant to
      s. 24 of the Controlled Drugs and Substances Act, S.C. 1996,
      c. 19. The appellant's s. 24 CDSA application was originally
      dismissed on December 7, 2007 by Clements J. of the Ontario
      Court of Justice. The appellant appealed Clements J.'s
      decision to the Superior Court of Justice. Tulloch J. ruled
      that he had jurisdiction under s. 40 of the Courts of Justice
      Act to hear the appeal. He subsequently dismissed the appeal
      on September 30, 2009. The appellant now appeals from the
      decision of Tulloch J.
      6. MALONEY REASONS [1] On May 27, 2011, the appellant
      pleaded guilty to one count of possession of marihuana for the
      purpose of trafficking. Bordeleau J. sentenced the appellant
      to 30 days imprisonment to be served intermittently and 11
      months probation. The appellant initially appealed his
      conviction. At the hearing of that appeal, with the consent of
      the Crown, time to appeal sentence was extended.
      7. MCCRADY REASONS [1] These appeals involve five
      appellants who have been charged and, in some cases, convicted
      of marihuana related offences contrary to the Controlled Drugs
      and Substances Act, S.C. 1996, c. 19. The appellants have been
      frustrated by the operation of the Marihuana Medical Access
      Regulations, S.O.R./2001-227 and argue that the offences with
      which they have been charged have been judicially repealed.
      The reasons in this appeal are being released at the same time
      as the reasons in the companion cases of Parker and Maloney.
      8. [2] The appellants McCrady and Hearn appeal from
      convictions for marihuana related offences. The appellant
      McCrady was convicted of possession of marihuana contrary to
      s. 4(1) of the CDSA by Lalande J. of the Ontario Court of
      Justice on July 19, 2010.
      9. Appellant was charged on Feb 20 2009, four months
      after having sent in his doctor-signed MMAR application.
      Justice Lalande rued there would have been no prosecution had
      there been no 6-month delay.
      10. [2].. The appellant Hearn pleaded guilty to
      production of marihuana contrary to s. 7(1) of the CDSA in the
      Ontario Court of Justice on July 9, 2010.
      [3] The appellants Pallister and McIntyre currently face
      charges for production and possession for the purpose of
      trafficking, and production and simple possession,
      respectively. The appellant MacDonald was charged with
      possession for the purpose of trafficking in December 2008.
      Those charges were stayed in December 2010. Pallister,
      McIntyre and MacDonald each seek... to have the Crown cited
      for contempt for continuing to prosecute marihuana offences.
      Finally, they seek to expunge the criminal records of all
      people convicted of marihuana offences.
      11. [10] The appellants McCrady and Hearn appeal their
      convictions. They raise the following issues:
      (1) Their charges should have been quashed, as marihuana is
      no longer a controlled substance.
      (2) Their charges should have been judicially stayed, as
      marihuana no longer should be a controlled substance.
      12. Their charge should have been dismissed was the third
      ground relying on having established medical need by obtaining
      exemptions to simply be exempt pursuant to Hitzig Par.170.
      13. [11] The appellants raise the following issues
      respecting marihuana offences:
      (1) The combined effect of the decisions of the Ontario Court
      of Appeal in R. v. Parker (2000), 49 O.R. (3d) 481, [Parker
      (2000)]; Hitzig v. Canada (2003), 177 C.C.C. (3d) 449 (Ont.
      C.A.), and R. v. J.P. (2003), 67 O.R. (3d) 321 is the repeal
      of the marihuana prohibitions. This deemed repeal has never
      been remedied.
      (2) The decision in R. v. Krieger, 2000 ABQB 1012 is deemed to
      have repealed the marihuana production offence in s. 7 of the
      CDSA.
      (3) The decisions in Sfetkopoulos v. Canada (A.G.), 2008 FC
      33, Sfetkopoulos v. Canada (A.G.), 2008 FCA 328 and R. v.
      Beren, 2009 BCSC 429 have invalidated the marihuana
      prohibition retroactive to at least December 3, 2003. BENO 2
      14. The court failed to note (4) reliance on Hitzig 170
      after having established medical need to be simply exempt.
      PART II - QUESTIONS IN ISSUE
      MCCRADY REASONS
      15. A) Whether the Court erred in ruling its amendments
      in the MMAR revived the prohibitions in the CDSA when S.43(a)
      of the Interpretation Act states: Where an enactment is
      repealed in whole or in part, [in the MMAR] the repeal does
      not revive any enactment or anything not in force or existing
      at the time [in the CDSA] when the repeal takes effect;" or
      whether Parliament Only Legislates new penal sanctions, Courts
      Only Abrogate: POLCOA?
      16. B) Whether Krieger decision invalidating the S.7(1)
      took effect on Mar 18 2003?
      17. C) Whether the J.P. (BENO Bad Exemption means No
      Offence) decision quashing the possession charge when the
      Parker declaration of invalidity of the S.4 Possession Offence
      was in effect while the MMAR were found to be defective
      between Aug 1 2001 and Oct 7 2003 by the Hitzig Court should
      apply again now that the Beren Court has ruled the MMAR have
      been again flawed by the very same two defects between Dec 3
      2003 and Mar 4 2010?
      18. D) Whether the court erred in finding the Parker and
      Krieger invalidations do not apply to McCrady's S.4(1)
      Possession Offence nor Hearn's Production Offence because they
      do not apply to Turmel's S.5(2) Purpose of Trafficking
      Offence!
      19. E) Whether the MMAR was constitutional during the
      suspension of the Beren decision striking down both MMAR flaws
      when Applicants were charged?
      20. F) Whether other non-Ontario courts not following
      J.P. is reason for Ontario courts not to follow J.P. as
      Taliano J. did in Mernagh?
      21. G) Whether the Sfetkopoulos, Beren, Mernagh decisions
      are sufficient evidence in Appellant's challenge to the MMAR?
      22. H) Whether the Court should have waited for the
      Mernagh decision before dismissing the appeals because Taliano
      J.'s BENO ruling in Mernagh has been merely stayed?
      23. I) Whether the presumption of trafficking by Maloney
      to whom Health Canada has now granted an exemption sustainable
      given the more likely presumption of bulk buying for
      established medical need?
      24. J) Whether bogus convictions while MMAR deficient
      should be expunged?
      25. K) Whether obtaining MMAR exemptions establishing
      Applicants' medical need to simply be exempt pursuant to
      Hitzig Par.170 should have been considered?
      PARKER REASONS:
      26. L) Whether the Superior Court Criminal Order of Pitt.
      J. could be set aside in Superior Civil Court Justice Chapnik
      as a Default Judgment?
      27. M) Whether Carole Bouchard's affidavit citing 431
      doctors from Ontario's 27,128 practitioners is evidence of
      Parker's claim of 1 in 60 doctors in Ontario!
      28. N) Whether asking his family doctor and not seeking a
      new doctor was too minimal effort?
      29. O) Whether Health Canada's failure to enlist Parker's
      doctor to participate in the MMAR is a failure to comply with
      the Order of the Court by Terry Parker Day Aug 1 2001?
      30. P) Whether the death of 15,000 epileptics at a rate
      of 4 fatal seizures per day from Canada's known epileptic
      population of 400,000 is of sufficient importance for leave to
      be granted?

      PART III - ARGUMENTS
      A) POLCOA, Parliament Only Legislates, Courts Only Abrogate.
      31. [14].. Rather, this court brought the MMAR into
      compliance with the Charter by striking down s. 41(b) (which
      prohibited a licensed producer from growing for more than one
      authorized-to-possess holder) and s. 54 (which prohibited more
      than three licensed producers from producing in common).
      [15] Hitzig created a retrospective period of invalidity of
      the prohibition of marihuana possession dating back to July
      31, 2001 (the date that the suspension of invalidity in Parker
      (2000) ran out). Going forward, Hitzig made the prohibition of
      marihuana possession fully constitutional in Ontario as of
      October 7, 2003 (the date of the Hitzig decision)."
      32. Since Parliament has never re-enacted those offences
      after they were declared of no force in Parker and Krieger and
      The Interpretation Act states:
      S.2.(2): "For the purposes of this Act, an enactment that has
      been replaced is repealed and an enactment that has expired,
      lapsed or otherwise ceased to have effect is deemed to have
      been repealed."
      S.43(a): Where an enactment is repealed in whole or in part,
      the repeal does not revive any enactment or anything not in
      force or existing at the time when the repeal takes effect."
      33. The Court's amendments to the MMAR could not revive
      the invalid possession and production offences under S.4 and 7
      of the CDSA that were not in force at the time!
      B) KRIEGER TOOK EFFECT MARCH 18 2003
      34. Krieger does not assist the appellants
      [19] In Krieger the Alberta Court of Queen's Bench held that
      because Mr. Krieger used marihuana to alleviate his suffering
      from multiple sclerosis, the production prohibition in s. 7(1)
      of the CDSA infringed his s. 7 Charter rights to liberty and
      security of the person. The court held that s. 7(1) was of no
      force and effect with respect to marihuana production. The
      declaration of invalidity was suspended for one year to give
      the government time to arrange for a legal source of marihuana
      for therapeutic use. The Alberta Court of Appeal extended the
      suspension of the declaration "until further order of the
      Court". That suspension has never been lifted. In the interim,
      the Hitzig line of cases resulted in the MMAR which allow for
      lawful access to marihuana for therapeutic use. The
      constitutional defect identified in Krieger was thereby
      remedied during the period of suspension and the declaration
      of invalidity is now moot.
      35. The interim suspension could not be lifted from a
      closed file because it lapsed with the further Final Order
      rendering the court Functus Officio on Mar 18 2003. And the
      constitutional defect identified was not remedied in Hitzig
      until later on Oct 7 2003 after the Acton suspension ran out
      on Mar 18 2003, it was not remedied during the suspension.
      36. On June 18 2003, after both the Parker and Krieger
      Courts' invalidations had taken effect and before the Hitzig
      decision on Oct 7 2003 rendered the MMAR constitutional again,
      Real Martin was charged with S.4(1) possession and S.7(1)
      production offences. He had no medical need. In 2005, Real
      Martin's S.4(1) possession charge was withdrawn due to Parker
      but his S.7(1) production charge was not dropped due to
      Krieger. Despite his possession charge being dropped while
      there was a bad MMAR exemption, his motion to similarly quash
      his production charge while there was a Bad Exemption was
      dismissed. Nov 19 2010, the Ontario Court of Appeal dismissed
      Real Martin's appeal against his S.7(1) cultivation charge
      being dropped due to Krieger like his S.4(1) possession charge
      had been dropped due to Parker because he wasn't sick.
      37. All MedPot Magnificent Seven Applicants herein
      charged with the S.7(1) cultivation offence have established
      medical need like Parker and Krieger had though Martin had
      not.
      C) IF PARKER-HITZIG BENO, WHY NOT PARKER-BEREN BENO
      38. [28] These appeals are some of many cases that have
      recently found their way to this court either as conviction
      appeals or attempts at prerogative remedies. They all turn on
      an argument referred to by the appellants as BENO (Bad
      Exemption = No Offence). By the reasons in this appeal and in
      the companion appeal in Parker it should now be apparent that
      this argument cannot succeed. This court and other courts have
      dealt with the so-called Bad Exemption by reading in words to
      fix the constitutional infirmity or by striking down the
      exemption. It was only in Hitzig that the effect of the Bad
      Exemption was to retroactively render of no force and effect
      the s. 4 CDSA possession prohibition as it related to
      marihuana. That order gave effect to the order of this court
      in Parker (2000). In Parker (2000), this court gave Parliament
      a year to fix the problem identified in that case. The effect
      of Hitzig was to find that Parliament had not succeeded. Hence
      the order in Parker (2000) declaring s. 4 as related to
      marihuana of no force and effect, took effect, but only until
      October 7, 2003. Put another way, the BENO argument only
      applied to the period from July 31, 2001 to October 7, 2003.
      39. On Dec 8 2003, with no distinction as to medical
      need, the Crown dropped the remaining 4,000 possession charges
      across Canada since Aug 1 2001 Terry Parker Day to Oct 7 2003
      Hitzig Day in compliance with the Parker-Hitzig rationale from
      J.P. But the Crown did not expunge the 100,000 bogus
      convictions registered while there was a Bad Exemption and No
      Offence. And the Crown then did not drop any remaining
      cultivation charges in compliance with the Krieger-Hitzig
      rationale nor expunge any bogus convictions under S.7(1).
      40. [16] Following Hitzig.. A new provision was added to
      Part IV of the MMAR which enabled the Government's supply of
      dried marihuana to be shipped directly to persons authorized-
      to-possess. Sections 41(b) and 54 were re-enacted in their
      original form as sections 41(b.1) and 54.1. As we explain in
      Parker, the fact that the government re-enacted ss. 41(b) and
      54, when it revised the MMAR in response to Hitzig, did not
      retroactively resurrect the effect of the Parker (2000)
      decision striking down the prohibition.
      41. PARKER REASONS [32] The declaration of invalidity in
      Parker (2000) does not survive indefinitely, waiting to be
      invoked whenever problems are identified with the
      constitutional validity of a provision of the MMAR. A finding
      of invalidity would depend on a fresh finding of invalidity
      with respect to the marihuana offences in the CDSA.
      42. The J.P. decision did not rule there was No Offence
      "absent a constitutionally adequate medical exemption once."
      Regardless, absent a constitutionally adequate medical
      exemption now, Applicants ask the court to so construe.
      43. MCCRADY REASONS [20] Sfetkopoulos was a civil
      application for declaratory relief in the Federal Court.
      Strayer J. found that the MMAR still did not adequately
      address the issue of lawful supply first canvassed in Hitzig.
      He declared s. 41(b.1) of the MMAR (which prohibited the
      holder of a production license from growing for more than one
      ATP-holder) invalid. He did not, however, strike down any of
      the prohibitions in the CDSA.
      44. Crown Crown Attorney Sean Gaudet argued to the
      Supreme Court of Canada in Sfetkopoulos Memorandum:
      "[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."
      45. [21] R. v. Beren involved a prosecution for
      production and trafficking in marihuana. Koenigsberg J. of the
      British Columbia Supreme Court relied on Sfetkopoulos and held
      that ss. 41(b.1) and 54.1 of the MMAR infringed s. 7 of the
      Charter. No provision of the CDSA was found to be invalid in
      Beren.
      46. JCT: The courts weren't asked to construe the Bad
      Exemption declared in Sfetkopoulos and Beren meant No Offence.
      In both instances, there was no companion charge like there
      had been when the J.P. appeal asked for No Offence when Hitzig
      declared a Bad Exemption. These Applicants are asking now. If
      the J.P. decision that a Bad Exemption means No Offence
      resulted in J.P.'s quashed charge during the first Bad
      Exemption, the courts should construe the Beren decision
      creating another period of retrospective invalidity dating
      back to December 3 2003, the date that s.41(b.1) 54(1) were
      re-introduced into the MMAR, to Mar 4, 2011, the date the MMAR
      were constitutionally rectified by the decision in Beren.
      D) PARKER & KRIEGER APPLY TO MCCRADY & HEARN
      47. [22] The appellants argue that, by analogy to Hitzig
      and J.P., Sfetkopolous and Beren have the effect of
      invalidating all marihuana offences retroactively dating back
      to December 3, 2003. This argument fails for several reasons.
      [23] First, Hitzig and J.P. only affected the
      constitutionality of the offence of simple possession of
      marihuana, not the offences of production or possession for
      the purpose of trafficking. The foundational declaration of
      invalidity in Parker (2000) simply declares that the reference
      to marihuana in Schedule II is of no force and effect for the
      purposes of the possession charge in s. 4 of the CDSA. The
      declaration does not extend to any other section of the CDSA
      (Turmel, (2003) at para. 6). Thus, if the appellant's argument
      had merit it could only apply to the simple possession charges
      against the appellants McCrady, Pallister and McIntyre.
      48. Applicant McCrady was convicted under only S.4(1)
      Possession and not S.5(2) "Purpose of Trafficking."
      49. [17] The appellants argue that, in combination,
      Parker (2000), Hitzig and J.P. have the effect of completely
      repealing all of the marihuana offences set out in the CDSA.
      50. Not all. Just Possession.
      51. [17].. That is incorrect. In R. v. Turmel (2003)..
      The declaration does not extend to any other section of the
      CDSA. In particular, it does not diminish the effect of the
      listing of marihuana in Schedule II for the purposes of s.
      5(2) of the CDSA.
      52. Parker and Krieger invalidations do apply to
      McCrady's S.4(1) Possession Offence nor Hearn's Production
      Offence even if they do not apply to Turmel's S.5(2) Purpose
      of Trafficking Offence! No appellant is arguing the Parker or
      Krieger declaration applies to Section 5(2) Purpose of
      Trafficking offence once Turmel did and lost! Only Sean
      Maloney is now challenging his "Purpose of Trafficking" 1
      pound upon the new ground that possession of less than his
      current exemption must be presumed to be bulk buying and not
      for trafficking! No other Applicant is arguing that "all"
      prohibitions have been invalidated by Parker or Krieger, only
      Possession and Production.
      E) WHETHER MMAR CONSTITUTIONAL DURING BEREN SUSPENSION
      53. [24] Second, the period of retroactive invalidity
      that the appellants argue for would not apply to any of them:
      (a) Retroactive invalidity would only work backward from the
      date of Sfetkopoulos. The offence dates in the cases of
      MacDonald, McCrady and Hearn (December 8, 2008, February 20,
      2009 and April 22, 2009, respectively) are after January 10,
      2008 when the Sfetkopoulos declaration remedied the
      Sfetkopoulos problem.
      (b) The offence dates in the cases of Pallister and McIntyre
      (October 2, 2009 and January 7, 2010, respectively) are after
      paragraph 41(b.1) of the MMAR was amended in response to
      Sfetkopoulos on May 14, 2009. No court has found the amended
      regulation unconstitutional.
      [25] Third, the offence dates in the cases of McCrady, Hearn,
      Pallister and McIntyre (February 20, 2009, April 22, 2009,
      October 2, 2009, and January 7, 2010, respectively) are during
      the one-year Beren suspension of invalidity, which began on
      February 2, 2009. Maloney's offence date (June 6, 2010) is
      after the MMAR were amended in response to Beren, on March 11,
      2010."
      54. Applicants claim retrospective invalidity backward
      from the date of the Beren ruling fixing both the S.41 and
      S.54 defects, and not backward from the earlier Sfetkopoulos
      fixing only the first flaw. Being charged during the
      suspension before the Beren decision took effect to fix the
      problem means it does help all those charged while there was a
      Bad Exemption which had not yet been fixed!
      F) WHETHER NON-ONTARIO COURTS NOT FOLLOWING J.P. MATTERS
      55. [26] Fourth, although the trial judge in Beren
      declared ss. 41(b.1) and 54.1 of the MMAR invalid, she made
      findings of guilt under the CDSA (at para. 136). Thus, Beren
      upheld the production and trafficking offences as they relate
      to persons who do not have ATPs under the MMAR.
      56. Though many have found a "Bad Exemption" and not
      followed J.P. to declare "No Offence," they weren't asked and
      weren't in Ontario subject to the Ontario Court of Appeal's
      J.P. ruling! These Applicants are in Ontario and would expect
      to be treated according to J.P.'s treatment.
      G) WHETHER SFETKOPOULOS, BEREN, MERNAGH SUFFICIENT EVIDENCE
      57. The charges against McCrady and Hearn not be stayed
      [27] The appellants McCrady and Hearn, submit that the charges
      against them should be stayed as marihuana no longer should be
      a controlled substance. The record does not support this
      position. The appellants submit a list of 25 complaints
      related to the MMAR. The complaints are not grounded in
      evidence in the record placed before the trial courts or this
      court. In so far as the complaints reference Sfetkopoulos and
      Beren, the appellant's argument is addressed above...
      [30].. If they wish to now challenge the validity of any part
      of the CDSA or the MMAR they can do so as part of the defence
      to their charges or by an application in the Superior Court of
      Justice. However, that defence and any application must be
      based upon proper material that clearly demonstrates the
      constitutional infirmity of the MMAR and the link between the
      CDSA offences and the alleged infirmity in the MMAR.
      58. Appellants did adopt the same arguments as in Beren
      in relation to the re-imposition of the old limits "plus one"
      being just as uneconomically unconstitutional as the old
      limits, and adopted the arguments in Mernagh with respect to
      the lack of doctors.
      H) DISMISS BEFORE MERNAGH BENO DECISION
      59. [27].. The appellants also make reference to the
      trial decision in R. v. Mernagh, 2011 ONSC 2121. In that case,
      Taliano J. declared that the prohibitions against possession
      and production of marihuana in ss. 4 and 7 of the CDSA are
      invalid. However, this court has already extended the Mernagh
      suspension of invalidity pending appeal.
      [29].. since October 7, 2003, with the exception of the 2011
      decision Mernagh, no court has held that the marihuana
      prohibitions are invalid.. The order made by Taliano J. in
      Mernagh holding the possession and production marihuana
      offences of the CDSA and the MMAR to be of no force and effect
      cannot assist the appellants at this point because that order
      has been stayed.
      60. Justice Taliano is the first to follow the J.P. BENO
      decision finding a Bad Exemption means No Offence for Mernagh
      and Court should have waited to see if the appeal of Mernagh
      is dismissed to the benefit of Appellants.
      I) WHETHER MEDICAL NEED PRESUMES BULK BUYING NOT TRAFFICKING
      61. Appellant Maloney was convicted of Possession for the
      Purpose of Trafficking one pound and he is now exempted to
      possess even more. An exemptee who has established medical
      need should be presumed to have have possessed his medicine
      for the economic purpose of bulk buying and not trafficking.
      J) MUST BOGUS CONVICTIONS BE EXPUNGED?
      62. Because the last 4,000 remaining Possession charges
      from the Parker-Hitzig BENO period declared in J.P. were
      withdrawn by the Crown on Dec 8 2003, the Court erred in not
      expunging the 100,000 bogus convictions for Possession
      registered while the MMAR were deficient. As well as the
      convictions registered during the next Parker-Beren BENO
      period when the MMAR were deficient.
      K) HITZIG 170 NOT CONSIDERED
      63. In claiming to have revived the CDSA prohibitions by
      their amendments in the MMAR in Paragragh 170, the Hitzig
      court added those charged need only "establish medical need to
      simply be exempt."
      64. On Dec 15 2004, though Health Canada had rejected his
      doctor's application for medical use, Quebec Court Justice
      Pierre Chevalier stayed the charges in R. v. Johnny Dupuis
      after he entered his medical file and doctor's testimony into
      evidence to establish medical need and reasoned Dupuis was
      simply exempt with no reason to doubt he was not also in need
      when he was charged. Despite not establishing medical need to
      the satisfaction of Health Canada, he established medical need
      to the satisfaction of the court to simply be exempt.
      canlii.org/fr/qc/qccq/doc/2004/2004canlii48452/2004canlii48452.html
      L) PARKER PITT EXEMPTION EXTENSION
      65. [27] On March 15, 2002, Pitt J. of the Superior Court
      of Justice ordered that the constitutional exemption granted
      to the appellant following Parker (2000) be extended "until
      such time as the government has complied with the Court's
      ruling." The appellant argues that this order entitles him to
      lawfully possess marihuana. However, Chapnik J. set aside Pitt
      J.'s order on April 19, 2002(see [2002] O.J. No. 1503). The
      appellant appealed Chapnik J.'s decision and this court found
      that she made no error when she set aside the order of Pitt J
      (see [2003] O.J. No. 3874). Thus, the March 15, 2002 order of
      Pitt J. is of no assistance to the appellant.
      66. Yes, the Court of Appeal did rule that Civil Court
      could set aside a criminal ruling as a default judgment. It
      didn't make it right.
      M) INSUFFICIENT EVIDENCE OF LACK OF 1/60 DOCTORS
      67. [33] The appellant asserts that only one in 60
      Ontario doctors participate in the medical marihuana regime,
      making the possibility of obtaining an exemption under the
      MMAR illusory... Clements J. dismissed the argument on the
      grounds that there was no evidentiary record before him to
      support the appellant's claim.
      [34] No court can determine whether or not this argument has
      merit in the absence of relevant information. Clements J. was
      correct to refuse to consider the appellant's constitutional
      challenge in the absence of a proper evidentiary record. We
      note that this issue was decided by Taliano J. in R. v.
      Mernagh, 2011 ONSC 2121, on an extensive factual record, but
      his order has been stayed pending appeal.
      68. The Court failed to note that in the Affidavit of
      Health Canada's Carole Bouchard Para 8, Jan 16 2007 Appeal
      Book Vol 1 Tab 13 says: "As of Nov 3 2006, 705 (1,603) persons
      in Ontario (Canada) have an authorization to possess marihuana
      for medical purposes supported by 431 practitioners." The
      Ontario College of Physicians had 27,128 licensed doctors
      2007. 27,128/431 = 62.9. 1 in 63 doctors. And Judge Taliano
      condemned the lack of doctors in Mernagh even though there are
      now more!
      N) MINIMAL EFFORTS TO SEEK NEW DOCTOR
      69. [13].. Parker had made minimal efforts to comply with
      the MMAR... he refused to seek a doctor to sign his ATP
      application."
      70. Parker had asked his family doctor, not too minimal
      effort to comply, and refused to seek a "new" doctor to sign
      his ATP. When Health Canada could not persuade his family
      doctor to participate in the MMAR, asking Parker to seek a new
      doctor with only 431 out of Ontario's 27,000 doctors
      participating, 1 in 63, made the search unconscionably
      onerous.
      O) FAILURE TO ENLIST PARKER'S DOCTOR
      71. The 2000 Parker decision ordered Health Canada to set
      up a MMAR regime to exempt Terrance Parker. After 12 years,
      his doctor's professional association has still not endorsed
      Health Canada's MMAR regime. How can it be said that the MMAR
      have complied with the Parker Court's Order when Parker ends
      up not exempted? Failure to set up a regime acceptable to the
      medical community is no move evident in the fact the poster
      boy for the medical marijuana movement still isn't' exempted!
      P) 15,000 DEAD EPILEPTICS SINCE REGIME
      72. At a rate of 4 fatal seizures per day from Canada's
      known epileptic population of 400,000, 15,000 epileptic deaths
      due to faulty exemption regime ordered set up by the Parker
      court is of sufficient importance for leave to be granted.
      PART IV - COSTS
      Applicant seeks no order as to costs.
      PART V - ORDER SOUGHT
      Applicant seeks an Order granting leave to appeal.
      Dated at Toronto on Mar 22 2012.
       
       
       
      __________________________
      For the Applicant:
      Terrance Parker
      2209-55 Triller Ave.
      Toronto, Ontario, M6R-2H6
      Tel: 416-533-7756
      Fax: 519-753-0645
      E: terryparkerjr@...
      TO: Registrar of this Court
      AND TO: James Gorham
      Department of Justice,
      3400-130 King St. W.
      Box 36 Toronto M5X 1K6
      Tel/fax: 416-954-2929/952-0298
      E: james.gorham@...
      PART VI - TABLE OF AUTHORITIES
      Beren BCSC Par: 45, 46, 47, 53, 54, 55, 57, 58, 62.
      Dupuis Par: 64.
      Hitzig v. Canada (2003): Par: 31, 40, 44, 46, 47, 49, 62, 63.
      J.P. (2003), Par 42, 44, 46, 47, 49, 56.
      Krieger, 2000 ABQB: Par 32, 34, 36, 37, 52.
      Parker (2000) Par: 32, 37, 38, 41, 44, 47, 49, 52, 62, 71, 72.
      Parker (2002) Par: 65.
      Martin (2010), Par: 36.
      Mernagh, 2011 ONSC Par: 59, 60, 67, 68.
      Sfetkopoulos (2008) FCA Par: 43, 44, 47, 53, 54, 57.
      Turmel [2003] Par: 51, 52.

      Jct: Then on to file them in Ottawa on Friday.

      John C. "The Banking Systems Engineer" Turmel, KingofthePaupers, Great Canadian Gambler, TajProfessor, Author of the UNILETS interest-free time-based currency United Nations Millennium Declaration C6 in the http://www.un.org/millennium/declaration.htm See http://johnturmel.com

      [Non-text portions of this message have been removed]
    Your message has been successfully submitted and would be delivered to recipients shortly.