Court File No. ________ ONTARIO SUPERIOR COURT OF JUSTICE (Criminal Division) Between: ____________________ Applicant/Accused and Her Majesty the Queen Respondent/Plaintiff APPLICANT'S FACTUM OVERVIEW 1. This is an issue of national imorrtance. Epilepsy.ca cites 4 deaths every day from among the 400,000 known epileptics and yet, after 5 years, due to the onerous Health Canada hurdles set before their doctors to get their prescriptions filled, there are only just over 1000 Health Canada exemptees in all of Canada for all illnesses with only a small fraction from Canada's epileptic community. 7200 epileptics died in the 5 years it took for Health Canada to exempt 1000 Canadians. The vast majority of Canada's epileptics remain unexempted, including Terrance Parker. The MMAR's failure to provide a constitutionally acceptable medical exemption creates a genocide among Canada's epileptics. No epileptic should be without a cannabis joint. No epileptic should have been, should be, left unexempted. No prohibition against marijuana can exist while the majority of Canada's epileptics remain unexempted. 2. On Dec. 23 2003, the Supreme Court of Canada dismissed the Crown's Application for leave to appeal the Dec. 04 2002 decision of the Alberta Court of Appeal declaring the prohibition against cultivation of marijuana in section 7(1) of the CDSA to be of no force and effect. Despite this repeal of the prohibition pursuant to s.2(2) of the Interpretation Act, the Crown has continued prosecutions holding that an earlier interim stay by the now functus officio court was still in effect. It is not. PART I - STATEMENT OF FACTS 3. On Dec 10 1997, Ontario Provincial Judge Sheppard stayed S.4(1) and S.7(1) charges against Terrance Parker ruling: "Mr. Parker will be granted immediate protection under Section 24(l) of the Charter of a stay of proceeding with respect to count I (cultivate a narcotic, Section 6(l) N.C.A.) and the September 18, 1997 count (possession of a controlled substance, Section 4(l) of the C.D.S.A). All plant material (three plants) seized from him by the Metropolitan Toronto Police Services on September 18, 1997 is to be returned to him forthwith..." "...It is ordered pursuant to Section 52, that Section 4(1) and Section 7(1) of the C.D.S.A. be read down so as to exempt from its ambit persons possessing or cultivating Cannabis (a schedule II substance) for their personal medically approved use. http://www.cyberclass.net/turmel/sheppard.htm 4. On July 31 2000, the Crown's appeal against the S.4(1) possession ruling but not against the S.7(1) cultivation remedy, was dismissed by Ontario Court of Appeal Justices Rosenberg, Catzman and Charron who Ordered "the marijuana prohibition in s.4 of the CDSA to be invalid" for not providing access for medical purposes and suspended its ruling while granting Parker a constitutional exemption for 1 year. The court further wrote they would have invalidated the cultivation prohibition had the Crown appealed Parker's win on Section 7 too. App.1: 2000 Jul 31 Parker Ont.C.A. Order on CDSA S.4 repeal http://www.ontariocourts.on.ca/decisions/2000//july/parker.htm 5. Though Parker was not deprived of his rights in that year, 2400 to 4600 Canadian epileptics who were not exempted with him were deprived of their right to life and every year since then. With the Attorney General for Canada erroneously holding that the CDSA prohibition had been saved by the MMAR, the courts have continued wrongly convicting hundreds of thousands of Canadians. 6. On Dec. 11 2000 in R. v. Krieger, Alberta Justice Acton took care of that omission by declaring the prohibition in Section 7(1) to be of no force and effect and suspending her ruling for 1 year: "[44] I am satisfied that s. 7(1) of the CDSA deprives Mr. Krieger and those who are similarly situated of their rights under s. 7 of the Charter to the extent that it prohibits these individuals from producing raw cannabis marihuana for their own therapeutic purposes. I am also convinced that such deprivation is not in accordance with the principles of fundamental justice... [55] I am prepared to agree with the Applicant that s. 7(1) of the CDSA should be struck down to the extent that it deals with production of cannabis marihuana. If s. 4 were before me I, like the Ontario Court of Appeal in R. v. Parker, supra, would strike down the prohibition against possession of marihuana because to do otherwise would be, to use Dr. Kalant's word, "inhumane" to Mr.Krieger under the circumstances." http://www.albertacourts.ab.ca/jdb/1998-2003/qb/Criminal/2000/2000abqb1012.pdf 7. On Jul 30 2001, one day before the expiry of the suspension of the Parker declaration of invalidity, Health Canada issued the Marihuana Medical Access Regulations (MMAR) which the Ontario Court of Appeal later ruled in R. v. J.P. failed to forestall the Parker Court's invalidation of the s.4(1) prohibition. 8. On Aug 1 2001, Parker's exemption expired without the MMAR having provided the necessary medical access which is why the Court of Appeal ruled the marijuana prohibition in s.4 of the CDSA became invalid after July 31 2001. 9. On Sep 15 2001, six weeks too late, Health Canada sent Parker a s.56 ministerial exemption after his constitutional exemption had expired. 10. On Nov 28, upon a motion by Krieger Crown Attorney Scott Couper for an interim order extending suspension of Acton's order "until the appeal or until further order of the Court of Appeal," Alberta Court of Appeal Justice O'Leary granted an interim Order extending the suspension "until further order of the court." http://www.cyberclass.net/turmel/oleary.pdf 11. On Mar 15 2002, the day after Parker's s.56 exemption had expired, Ontario Superior Court Justice Romain Pitt using his criminal jurisdiction granted Parker an "Order extending the constitutional exemption granted to the applicant by the Ontario Court of Appeal until the Government has complied with the court's ruling." http://www.cyberclass.net/turmel/pittorde.jpg 12. On Dec 4 2002, Alberta Court of Appeal Justices Wittman, Costigan, and LoVecchio Order dismissed the Crown's appeal against Acton J.'s invalidation in R. v. Krieger : "[1] The Respondent was charged with possession of marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA and unlawful production of marihuana contrary to s. 7(1) of the Act. [2] The Crown appeals a voir dire ruling which struck down s. 7(1) and also appeals the Respondent's acquittal by a jury of the s. 5(2) charge. [..6] Nor are we satisfied that the trial judge imposed a positive obligation on the Crown to ensure a supply. The trial judge struck s. 7(1). Her order imposed no obligation. [7] Therefore, we dismiss the appeal as it relates to the voir dire ruling. App.2 Krieger Court of Appeal of Alberta Judgment www.albertacourts.ab.ca/jdb/1998-2003/ca/Criminal/2003/2003abca0085.pdf 13. The Calgary Herald and Sun reports misrepresented the striking down of the S.7 and S.4 prohibitions as a personal exemption victory for Krieger and that the O'Leary interim stay still prevented the Acton ruling from taking effect. Calgary Herald's Daryl Slade wrote that "Krieger's lawyer, Adriano Iovinelli, said outside court it was an important decision that permits his client to continue to cultivate and use marijuana for his own use to alleviate chronic pain caused by multiple sclerosis. Iovinelli said, as it stands, it is status quo on Krieger's charter exemption. But he suggested that would not apply to the general public.." Also, it informed: "Alberta Court of Appeal Justice Willis O'Leary last year extended that stay indefinitely, until there is an application to the courts to remove it." App.3: 2002 Dec 05 Calgary Herald Krieger article App.4: 2002 Dec 05 Calgary Sun Krieger article 14. Once the Court of Appeal for Alberta became functus officio after issuing its further final Order, that court's interim Order by O'Leary J.A. staying the Acton invalidation of the prohibitions in Section 7(1) and, by implication, Section 4(1) of the CDSA, also lapsed. The only court not yet functus officio was the court of last resort and only a stay emanating pursuant to the Supreme Court of Canada Act could stay the Acton invalidation from taking effect. 15. Section 65.1(1) of the Supreme Court of Canada Act: "Stay of execution -- application for leave to appeal 65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate." 16. On Nov 16 2005, Krieger Crown Attorney Scott Couper testified in R. v. Cornelssen that on December 4 2002, upon having the Crown's appeal against the Acton ruling dismissed, he was going to ask for a stay of Acton's invalidation pending their application for leave to appeal to the Supreme Court of Canada but then did not. 17. Couper testified he was deterred from seeking such a stay by Defence counsel Adriano Iovinelli moving the Court of Appeal to lift the interim stay that had just lapsed with the Alberta Court of Appeal becoming functus officio. The court declined to entertain the motion to lift the stay which had just lapsed by the wrong party. The right party, the Crown, then failed to ask for its own legitimate stay pursuant to S.65.1(1) of the Supreme Court of Canada Act. With no stay, Acton's ruling took effect invalidating the cultivation prohibition, and by implication, possession and other prohibitions, on December 4 2002. http://www.cyberclass.net/turmel/cornqtrs.txt 18. On Jan 2 2003, in R. v. J.P., Windsor Provincial Judge Phillips quashed a s.4(1) marihuana possession charge laid on April 12 2002, after Terry Parker Day, declaring: [7] It is submitted by the Applicant therefore, that Rosenberg, J. A.'s judgment had the effect of declaring invalid the marihuana prohibition in s. 4 (1) effective on July 31, 2001 - twelve months after the release of the reasons in R. v. Parker. It is therefore argued that in keeping with s. 2(2) of the Interpretation Act(2), the enactment was deemed repealed. (2)See the Interpretation Act, R.S.C. 1985, c. I-21 at Section 2(2) which states: "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." [8] The Controlled Drugs and Substances Act was not amended by Parliament, and no prohibition on the simple possession of marihuana has been re-enacted. http://cannabislink.ca/legal/windsordecision.htm 19. On Jan 9 2003, Lederman J. ruled in Hitzig v. HMQthat the MMAR had failed to comply with the court's ruling, as had Pitt J. in 2002, and suspended his ruling 6 months. http://www.canlii.org/on/cas/onca/2003/2003onca10584.html 20. On May 14 2003, to demonstrate that the prohibition was no longer valid in Canada on the day before the Minister of Justice was to introduce legislation to newly re-criminalize the prohibition of marijuana, John Turmel was charged at the doors of the House of Commons with possession of 3.3Kg of marijuana for the purpose of trafficking to the Prime Minister, Justice Minister, Supreme Court and others. App.5: 2003 May 14 Turmel holds back marijuana bill 21. On May 15 2003, the Chretien Government held back the marijuana bill and S.7 nor S.4 were never re-enacted after being deemed repealed. Parliament has never re-enacted any new prohibitions since the repeal of S.7 and S.4 prohibitions by the Alberta Court of Appeal. 22. With no new legislation to replace that struck down by the Krieger court, the very next day, May 16 2003, in the Crown Memorandum to the Supreme Court of Canada Crown S. David Frankel pleaded for leave to appeal because " "[11] The Court of Appeal did not deal with O'Leary's order. Accordingly, it remains an offence to grow marihuana in Alberta, unless a person has obtained a ministerial or judicial exemption. If the suspension order were to be vacated, then there would be no prohibition whatsoever on the cultivation of marihuana in the province." [57 As matters now stand S.7(1) has been declared of no force and effect by the highest court in Alberta. An application to vacate O'Leary's Order could be brought at any time. If the suspension order were vacated, then the cultivation of marijuana would not be an offence in Alberta." App.6: 2003 May 16 S. David Frankel culpability clause 23. The Court of Appeal refused to deal with O'Leary's interim Order because it had lapsed. An interim order out of a court that is functus officio does not need to be vacated. But once Crown Scott Couper did not obtain a Supreme Court stay, Frankel's only recourse was to argue that the stay out of the functus officio court continued in effect. App.12: 2005 Nov 02 Affidavit of Scott Couper..........(A18) 24. Both Crown Couper and Defence Iovinelli attested that the court required a hearing with evidence to show how the Government had complied with Acton's Order before the O'Leary suspension could be lifted yet, in its written reasons, the Court of Appeal points out: "Nor are we satisfied that the trial judge imposed a positive obligation on the Crown." It would be contradictory for the Court to have said a hearing was needed to deal with the government's compliance with the Acton order when they pointed out no obligations had been imposed by Acton! 25. On Oct 06 2003, in another application to quash marijuana charges as unknown to law in R. v. Kurtiss Lee Masse, Judge Chen ruled: "[66].. If I am wrong in this, and it is possible for regulations addressing the concerns raised in Parker to halt the operation of the declaration of s.4's invalidity, then I agree with the decision in Hitzig that the MMAR were inadequate for this purpose because, as long as there is no legal supply of marihuana for persons requiring it for medical use, the infringement on s. 7 Charter rights identified in Parker has not been cured. The enactment of the Marijuana Exemption (Food and Drugs Act) Regulations on July 8, 2003 may or may not address the concerns raised in Hitzig but came too late to have any effect on the declaration of invalidity in Parker. July 31, 2001 had, by that time, already come and gone, and the legislation had already been rendered invalid. Once invalid, it became a nullity and could not be resuscitated; it could only be re- enacted. [67] It follows therefore, that there is no offence known to law at this time for simple possession of marihuana. The application is allowed. http://www.provincialcourt.bc.ca/judgments/pc/2003/03/p03_0328.htm 26. On Oct 7 2003, Ontario Court of Appeal Justices Doherty, Goudge, and Simmons ruled in R. v. J.P. that the invalidation of the prohibition in s.4(1) by R.v. Parker had taken effect after July 31 2001. 27. The Court then continued in R. v. J.P. and that on April 12 2002, [11] Having determined in Hitzig that the MMAR did not create a constitutionally valid medical exemption... the prohibition against possession marihuana in s.4 of the CDSA was subject to the exemption created by the MMAR. As we have held, the MMAR did not create a constitutionally acceptable medical exemption... It follows that as of that date, the offence of possession of marijuana in s.4 of the CDSA was of no force and effect. The respondent could not be prosecuted. 28. The Hitzig Court then amended the MMAR by striking down five (5) cancerous sections and opining that it had the effect that "prohibition is now no longer invalid, but is of full force and effect" but refused to include it in the Order herein when requested: [2]...We have concluded that for those people the MMAR as drafted by the Government do not create a constitutionally acceptable medical exemption... the remedy we would impose, namely to declare invalid only five specific sections of the MMAR. This renders constitutional the medical exemption as described in the remaining provisions of the MMAR, thereby rendering the possession prohibition in s. 4 of the CDSA constitutional: R. v. Parker, supra. App.7: 2003 Oct 07 Hitzig Ont.C.A. Order for MMAR fix App.8: 2003 Oct 07 Turmel Ont.C.A. Order for Parker Day http://www.ontariocourts.on.ca/decisions/2003/october/hitzigC39532.htm 29. On Dec 8 2003, the Crown stayed all 4000 pending s.4(1) possession charges laid after July 31 2001. App.9: 2003 Dec 08 Turmel stays 4000 since Parker Day 30. On December 23 2003, the Supreme Court of Canada Bulletin of Proceedings of the Krieger decision states: "29569 HER MAJESTY THE QUEEN v. GRANT WAYNE KRIEGER (Crim) (Alta.) Coram: McLachlin C.J. and Major and Fish JJ. The application for leave to appeal from the judgment of the Court of Appeal of Alberta (Calgary), Numbers 01-00011-A and 01-00288-0A, dated March 18 2003, is dismissed." NATURE OF THE CASE Canadian Charter of Rights and Freedoms - Criminal law - Cannabis marihuana - Cultivation and trafficking - Accused cultivating cannabis marihuana for his own medical needs and supplying others as well - Trial judge finding that prohibition on production of cannabis marihuana infringing accused's s. 7 Charter rights and not saved by s.1. Whether The Court of Appeal erred in holding that s.7 of the Charter guarantees the right to grow (and by implication, possess) marihuana, to anyone with a medical need for the drug... PROCEDURAL HISTORY: December 11 2000 Court of Queen's Bench of Alberta (Acton J.) Section 7(1) of the Controlled Drugs and Substances Act, inasmuch as it relates to cannabis marihuana, declared inconsistent with the Charter; declaration suspended for one year; Respondent granted an exemption from the application of s. 7(1); charge stayed" November 28 2001 Court of Appeal of Alberta (O'Leary J.A.) Period of judicial stay extended until further order of the Court of Appeal. December 4 2002 Court of Appeal of Alberta (Wittman, Costigan and Lo Vecchio JJ.A.) Appeal with respect to s. 7(1) dismissed. May 20 2003 Supreme Court of Canada Application for leave to appeal filed." App.10: 2003 Dec 23 Krieger Supreme Court Order App.10b: Supreme Court of Canada Bulletin Dec 23 2003 http://www.lexum.umontreal.ca/csc-scc/en/bul/2003/html/03-12-23.bul.html 31. The Supreme Court does not note any stay of Judge Acton's repeal of marihuana prohibition in CDSA S.7(1) after the Court closed the file and became functus officio. 32. On the same day, the Court issued the Malmo-Levine ruling that recreational need cannot impede the government's power to prohibit marijuana despite though the Parker ruling certified that medical need does. Appellant agrees the Government can, our point is that the government has not made use of the power established in Malmo-Levine to do just that since the Parker and Krieger invalidations. 33. On April 1 2004, John Turmel wrote the Attorney General demanding redress for the injustice done to those convicted under the invalid sections with no response. App.11: 2004 Apr 01 Turmel to A.G. for 100,000 more PART II - ISSUE 34. Is the Final Order of the Court dismissing the appeal also the "further Order of the Court" which removes the O'Leary stay of Acton J.'s invalidation of the s.7(1), and by implication s.4(1) and all other prohibitions? PART III - ARGUMENTS 35. There was no stay of Acton J.'s ruling pursuant to the Supreme Court of Canada Act so the invalidation had to have taken effect on December 4 2002 when the Alberta Court of Appeal became functus officio. 25. Since that time, hundreds of thousands of Canadians have been charged based on the Crown's contention that the functus officio stay of O'Leary J.A. was still in effect. Of course, with the stay lapsed and not needing to be lifted, there was "no prohibition whatsoever on the cultivation of marihuana in the province." And the country. 85. When the highest courts in Canada affirm a ruling which strikes down an unconstitutional violation of a Charter right and the courts then see that ruling ignored by the Attorney General and that invalid statute enforced against an unsuspecting populace, it has to be the duty of the courts to see that their Orders are obeyed? If not, who else can tackle such renegade elements in the Ministry of Justice? 86. The Ministry of the Attorney General is culpable of mischief and genocide, after all, it did involve denying dying patients who needed access to cannabis such access on the basis of the enforcement of invalid statutes. 6000 extra dead epileptics since 2001 they should have all had a joint in their possession to protect them from their seizures. PART IV - ORDER SOUGHT 91. Appellant seeks an Order 1) prohibiting all charges relating to marijuana under the CDSA as unknown to law on the grounds Parliament has not re- enacted the S.7 cultivation (and by implication S.4 possession) prohibitions which underpin all other marijuana prohibitions in the CDSA since they were struck down by the Alberta Court of Appeal in R. v. Krieger on Dec 04 2002. 2) staying any charges for marijuana as abuse of the court process on the grounds all statutes related to marijuana are of no force and effect; 3) citing the Ministry of Justice, in the absence of proof that all inmates convicted since the marijuana prohibitions were repealed have been released, for abuse of the process and in contempt of the Ontario and Alberta Courts of Appeal and Supreme Court of Canada in R. v. Parker and R. v. Krieger on the grounds Crown Attorney S. David Frankel acknowledged that the S.7 Cultivation and S.4 Possession prohibitions had been struck down by the highest court in Alberta but did not dutifully inform Canada's Law Enforcement to cease and desist arrests under the repealed statutes. Dated at ______________ on _____________ 2006. _______________________________ For the Applicant/Accused: Address:_____________________________ _____________________________ Tel: _____________________________ To: Registrar of this Court And: Attorney General for Canada