File Number:_____ Appeal Court No: 40127 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: John C. Turmel Applicant Appellant in appeal and Her Majesty The Queen Respondent Respondent in appeal ------------------------------------------------- NOTICE OF APPLICATION FOR LEAVE TO APPEAL JOHN C. TURMEL, APPLICANT (Pursuant to Section 59 of the Supreme Court Act) ------------------------------------------------- TAKE NOTICE that Applicant John C. Turmel hereby applies for leave to appeal to the Court in forma pauperis pursuant to Section 59(4) of the Supreme Court Act from the judgment of Justices Doherty, Goudge and Simmons of the Court of Appeal for Ontario #40127 made Oct 7 2003 and for an Order declaring that the word "marijuana" was deleted from Schedule II for all sections of the CDSA. AND FOR any Order abridging the time for service, filing, or hearing of the application, any Order amending any defect as to form or content of the motion or any Order deemed just. AND FURTHER TAKE NOTICE that this application for leave is made on the grounds that the judiciary do not have the constitutional power to resurrect penal statutes that have been repealed. Dated at Brantford Ontario on Oct 6 2004 Applicant: John C. Turmel, B. Eng. 8-37 Colborne E. Brantford, N3T 2G3 Tel/Fax: 519-753-0645 Email: turmel@ncf.ca ORIGINAL TO: THE REGISTRAR AND TO: Croft Michaelson: cmichael@justice.gc.ca Christopher Leafloor: christopher.leafloor@justice.gc.ca Vanita Goela: vgoela@justice.gc.ca Department of Justice, Ontario Regional Office 130 King St. W. #3400 Toronto, ON, M5X 1K6 Tel: 416-952-7261, 973-0392, 973-9638 Fax: 416-952-0298 NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in response to this application for leave to appeal within 30 days after service of the application. If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration pursuant to section 43 of the Supreme Court Act. ==== TABLE OF CONTENTS ----------------- Notice of Application for leave to appeal.................(1) Certificate on seal or ban on publication.................(4) Aitken order dated May 26 2003............................(5) Appeal Court Decision dated Oct 7 2003....................(6) Appellant's Memorandum of argument........................(9) ------------------------- APPLICANT'S MEMORANDUM JOHN C. TURMEL, APPLICANT ------------------------- OVERVIEW 1. Section 4 of the CDSA says it is illegal to possess anything on Schedule II of banned substances. Schedule II has "marijuana" on the list. When the marijuana prohibition in s.4 of the CDSA became invalid, the only way to effect the repeal of the prohibition without adding the words "except for marijuana" in Section 4 left only the deletion of "marijuana" from Schedule II of banned substances. PART I - STATEMENT OF FACTS: 2. On Oct 7 2003, the Ontario Court of Appeal ruled: [1] On May 14, 2003 Mr. Turmel was charged with possession of marihuana for the purposes of trafficking pursuant to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (the CDSA). [2] On May 26, 2003 Mr. Turmel brought a motion in the Superior Court of Justice seeking in effect to have this charge stayed. Aitken J. dismissed the motion and Mr. Turmel now appeals from her order. [3] He makes only one argument. It is founded on the order made by this court in R. v. Parker (2000), 146 C.C.C. (3d) 193 declaring the marihuana prohibition in s. 4 of the CDSA to be invalid and suspending the declaration for 12 months. Mr. Turmel says that since s. 4 prohibits possession of any substance included in, inter alia Schedule II (which lists marihuana) this court's declaration can only be effected (now that the 12 months has passed) by deleting marihuana from Schedule II. He argues that this must remove marihuana from Schedule II for all purposes. Section 5(2), like s. 4, relies on the listing of marihuana in Schedule II to create the charge of possession of marihuana for the purposes of trafficking. Mr. Turmel says that the Parker declaration means that there was no such charge on May 26, 2003, since it deletes marihuana from Schedule II. [4] While there are questions about whether this motion was properly brought, and whether the Superior Court had jurisdiction to hear it, we prefer to deal with this appeal by addressing directly the argument made by Mr. Turmel. [5] It is based on a fundamental misconception. A declaration does not delete a provision from a statute. Pursuant to s. 52(1) of the Constitution Act, 1982 its effect is to render the provision of no force or effect to the extent of its inconsistency with the provisions of the Constitution. [6] The declaration of invalidity made by this court in Parker8 supra, does not delete marihuana from Schedule II of the CDSA. It simply declares that the reference to marihuana in Schedule II is of no force or 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. 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. As a result, the charge of possession of marihuana for the purposes of trafficking existed on May 26, 2003. [7] Thus Aitken J. was correct to dismiss the appellant's argument and we would dismiss his appeal. PART II - QUESTION IN ISSUE 3. When legislation is struck down, is it reasonable for the government not to re-print the legislation to effect the repeal and to count on the courts to remember where the written word no longer applies? PART III - STATEMENT OF ARGUMENT 4. The invalidation of the prohibition on marijuana in the section 4 of the CDSA also invalidated the prohibitions in the other sections too. S.4 says it is an offence to possession anything on "Schedule II of banned substances." Section 7 says it is an offence to cultivate anything on "Schedule II of banned substances." Section 5 says it is an offence to possess for the purpose of trafficking anything on the "Schedule II of banned substances." 5. Leaving repealed legislation on the books and counting on the judiciary to remember, or the bar to remind the judiciary to remember, when the written word does not apply can lead to wrongful prosecutions when the judiciary or the bar forget. 6. In this case, the judiciary forgot, and the bar failed to remind the judiciary, that the Court of Appeal found the marijuana prohibition in s.4 of the CDSA to be invalid resulting last December in the staying of 4000 improper prosecutions under the repealed statute. Further, The judiciary and the bar forgot while 100,000 improper prosecutions were dealt with. 8. This is the biggest foul-up in Canadian legal history. All because the court believes that there is no need to insist on a strict written word when counts on judges having unfailing memories in keeping up with the latest developments in jurisprudence. 9. Believing that the written word sometimes counts and sometimes does not count is the reason behind this greatest ever of legal snafus. It's the reason courts must insist on the strict interpretation of criminal statutes with no reliance on judicial memory. PART IV - SUBMISSIONS ON COSTS 40. Applicant has devoted over 4 years to the abolition of the prohibition of the safest best herbal medication on the planet and has suffered arrest and incarceration so the maximum allowed would be appropriate. PART V - ORDER SOUGHT 41. Applicant seeks leave to appeal the Oct 7 2003 judgment of the Ontario Court of Appeal for an Order declaring that the word "marijuana" was deleted from Schedule II for all sections of the CDSA. Dated at Brantford on Oct 6 2004 ____________________________ For the Applicant: John C. Turmel, B. Eng.