Canadian Cannabis Consulting

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Laws

Legislation & Bills

Bill: C-10:  An Act to amend the Contraventions Act and the
Controlled Drugs and Substances Act

 

Legal Actions & Court Decisions

 


 

 

Binding Precedents – (Stare decisis)

 

”’Stare decisis”’ (Latin: , Anglicisation: , “to stand by things decided”) is a Latin legal term, used in common law systems to express the notion that prior court decisions must be recognized as precedents, according to case law. Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — “to stand by and adhere to decisions and not disturb what is settled.”

http://tripatlas.com/Stare_decisis

 

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Below are the present binding cases that are proof that the prohibition of cannabis is dead. What a disgrace our judicial system has become and continues to be, because our government blatantly disobey’s our highest courts. I have personally sent an email to the Justice Minister and key members of the opposition parties pointing out these facts, and yet I get no replies except a standard acknowlegment of receipt??? They are all part of the Corrupt Corporation of Canada.

 

Unlawful Arrest

 

When a statute (law) is found to be constitutionally invalid by a court of competent jurisdiction, such a judgment stands as a constitutional bar against Federal Crown proceedings that seek to enforce the declared constitutionally invalid law. The immediate effect of such judgment is that it serves to bind all Government servants, agents and officers until reversed or varied by an appellate court. Where they undertake to enforce such an invalid law by acts such as arrest, seizure, detention and imprisonment as well as the laying of charges constitute torts that are actionable and damages can be awarded against them. Civil action for damages is available.

 

 


 

Binding Precedents

Jurisprudence

Parker Order July 31, 2000

http://www.ccldr.net/resources/Prohibition_Kits/Parker%20Order.rar

R. v. Parker, 2000 July 31 <CanLII 5762 OCA

http://www.canlii.org/en/on/onca/doc/2000/2000canlii5762/2000canlii5762.html

R. v. Krieger, 2003 ABCA 85

http://www.canlii.org/en/ab/abca/doc/2003/2003abca85/2003abca85.html

HMQ v. Grant Wayne Krieger (Alberta) (Criminal) (By Leave) 29569 Dismissed, Supreme Court of Canada

http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspxcas=29569

R v. J.P. 2003, Jan 2 (Ontario Court of Justice)

http://cannabislink.ca/legal/windsordecision.htm

R. v. J.P., 2003 May 16 (Ontario Superior Court)

http://www.canlii.org/en/on/onsc/doc/2003/2003canlii45115/2003canlii45115.pdf

 

R. v. Peddle 2003 May 30, OCJ

http://www.ccldr.net/resources/Prohibition_Kits/R.%20v.%20Peddle.rar

 

R. v. J.P., 2003 October 7 (Ontario Court of Appeal)

http://www.canlii.org/en/on/onca/doc/2003/2003canlii17492/2003canlii17492.pdf

 

Hitzig v. Canada 2003 Order (OCA)

http://www.ccldr.net/resources/Prohibition_Kits/Hitzig.rar

 

Hitzig v. Canada 2004 SCC Bulletin

http://scc.lexum.umontreal.ca/en/bulletin/2004/04-04-16-bul.wpd/04-04-16-bul.wpd.pdf

 

Sfetkopoulos v. Canada 2008 FCA

http://decisions.fca-caf.gc.ca/en/2008/2008fca328/2008fca328.pdf

 

A.G. v. Sfetkopoulos 2009 SCC 32944

http://scc.lexum.umontreal.ca/en/news_release/2009/09-04-20.2a/090420.2a.pdf

Sfetkopoulos Crown Memo Page

http://www.ccldr.net/resources/Prohibition_Kits/GaudetGoodie.rar

 

R v. Beren 2009 Supreme Court of BC

http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc429/2009bcsc429.pdf

 

Her Majesty the Queen v. Matthew David Beren (B.C.) (Criminal) (By Leave) (33071) SCC Dismissed

http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=33071

 

R. v. Mernagh, 2011 ONSC 2121

Read PDF Decision here. Appeal to be heard on March 5 and 6 2012 in the Ontario Court of Appeal.

Retroactive and Prospective Remedies Under the Charter Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 para 81, 82, 83

http://csc.lexum.umontreal.ca/en/2007/2007scc10/2007scc10.pdf

 


 

Legal Authorities

Interpretation Act, R.S.C. 1985, c. I-21

REPEAL AND AMENDMENT

Chapters: 2(2), 42(1)

http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-21/latest/rsc-1985-c-i-21.html

 


Case Law Facts

 

On July 31, 2000 in R.v. Parker the Ontario Court of Appeal declared the marihuana prohibitions invalid, and suspended the declaration of invalidity for one year. The prohibition would become invalid on Aug. 01, 2001.

 

[11] Accordingly, I would uphold the trial judge’s decision to stay the charges against Parker and I would dismiss that part of the Crown’s appeal. However, I disagree with Sheppard J.’s remedy of reading in a medical use exemption into the legislation. I agree with the Crown that this is a matter for Parliament. Accordingly, I would declare the prohibition on the possession of marihuana in the Controlled Drugs and Substances Act to be of no force and effect. However, since this would leave a gap in the regulatory scheme until Parliament could amend the legislation to comply with the Charter, I would suspend the declaration of invalidity for a year. During this period, the marihuana law remains in full force and effect. Parker, however, cannot be deprived of his rights during this year and therefore he is entitled to a personal exemption from the possession offence under the Controlled Drugs and Substances Act for possessing marihuana for his medical needs. Since the Narcotic Control Act has already been repealed by Parliament, there is no need to hold it unconstitutional. If necessary, I would have found that Parker was entitled to a personal exemption from the cultivation offence for his medical needs.

 

R. v. J.P., 2003 May 16 <CanLII 45115 (Ontario Superior Court)

 

[9] I agree with the disposition of Phillips J. in his judgment of January 2/03 and would dismiss the Crown’s appeal for the following reasons:

 

(1) On July 31, 2000, Rosenberg J. in R. v. Parker, severed marihuana from s.4 of the Controlled Drugs and Substances Act and declared it invalid. Section 4 as it relates to substances other than marihuana remains in full force and effect.

 

(2) The declaration of invalidity was suspended for a period of 12 months from July 31, 2000. Mr. Parker was granted an exemption from the marihuana provision in s.4 during the period of suspended invalidity.

 

(3) As of July 31/01, s.4 of the Controlled Drugs and Substances Act as it related to marihuana was invalid. Section 4 includes the penalty section. [See Kemp v. Roth (1996) 141 D.L.R. (4th) 25 at pg.34 and 35:

 

“A statute which is of no force or effect confers no rights. In the absence of a direction to the contrary, a declaration that a law is of no force or effect, invalidates the law from the time when the Charter (here s.15) came into force or the legislation was enacted, which ever is later. Professor Hogg in Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992) states at pp.1241-1242(emphasis added):

 

A judicial decision that a law is unconstitutional is retroactive in the sense that it involves the nullification of the law from the outset. Indeed, any judicial decision must be retroactive in order to apply to the facts before the court, since those facts must have already occurred. That a court makes new law when it overrules prior doctrine or even when it decides an unprecedented case is not open to doubt; but a court does not make new law in the same way as a legislative body, that is, for the future only”.(4) Parliament’s response to the Ontario Court of Appeal decision in Parker was to enact the Medical Marihuana Access Regulations, published in the Canada Gazette on June 14/01, to come into force on July 30/01. Justice Phillips recognized at para. 39 of his judgment, that the regulations have the force of law, which was conceded by the respondent both in this court and before Justice Phillips.

 

(5) However, Parliament at no time re-enacted s.4 of the Controlled Drugs and Substances Act, as it relates to marihuana. Accordingly, notwithstanding the enactment of the Medical Marihuana Access Regulations which allow possession of marihuana under certain circumstances, in no place in those regulations is there a prohibition against simple possession of marihuana.

 

[10] In addition, since s.4 of the Controlled Drugs and Substances Act has not been reenacted, as it relates to marihuana, there is no penalty in the Act for simple possession of marihuana even if it had been prohibited by the Medical Marihuana Access Regulations. It is to be noted, that there are no penalty sections set out in the Medical Marihuana Access Regulations.

 

R. v. J.P., 2003 Oct. 07, the Ontario Court of Appeal states:

 

“[11] As we have held, the MMAR did not create a constitutionally acceptable medical exemption. In Parker, this court made it clear that the criminal prohibition against possession of marihuana, absent a constitutionally acceptable medical exemption, was of no force and effect. As of April 12, 2002, there was no constitutionally acceptable medical exemption. It follows that as of that date the offence of possession of marihuana in s. 4 of the CDSA was of no force and effect. The respondent could not be prosecuted.

 

[34] We would dismiss the appeal.”

 

The Crown lost it’s appeal, and the court upheld the invalidity of the CDSA prohibitions of marihuana.

 

Interpretation Act 2(2) states:

 

Expired and replaced enactments

(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.

 

R.S., 1985, c. I-21, s. 2; 1993, c. 34, s. 88; 1999, c. 31, s. 146; 2003, c. 22, s. 224(E).

 

It is clear that the legislative prohibition was found to be of no force and effect in Parker and is therefore to be deemed repealed. The Crown and the Court lack jurisdiction to proceed with prosecutions, and the Police with arrests.

 

In a most recent decision in Sfetkopoulos v. Canada FCA, it was found that the Marihuana Medical Access Regulations have continued to be unconstitutional. In the Crown’s memorandum to the Supreme Court of Canada for leave to appeal the Crown states:

 

“The Court in R. v. JP 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.”

 

The retrospective invalidity of the CDSA 4(1) prohibition as it applies to cannabis marihuana, began on Aug. 1, 2001 in accordance to the decision in Parker and is still invalid at the present. The MMAR could not save the repeal of the CDSA 4(1) prohibition. Unless Parliament enacts a new prohibition, the possession of marijuana is not an offence known to law.

Her Majesty the Queen v. Matthew David Beren (B.C.) (Criminal) (By Leave) (33071) Jan 14, 2010

 

DISMISSED WITHOUT COSTS / REJETÉES SANS DÉPENS

 

(The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal is dismissed without costs. The application for leave to cross-appeal is quashed.

Coram: McLachlin / Abella / Rothstein

So now the Supreme Court of Canada has dimissed the Crown’s appeal in Beren, therefore uphold the MMAR as unconstitutional and confirming the CDSA cannabis prohibitions invalid.

 

Federal Crown Attorney Kevin Wilson’s admission to the Superior Court in R. v. Pallister admits the MMAR were unconstitutional. So anyone charged before May 14, 2009 can have their charges overturned.

 

R. v. Pallister, Crown Attorney Kevin Wilson to SCO:

“20. In express response to Sfetkopoulos paragraph 41(b.1) of the MMAR was amended Effective May 14 2009 to permit the holder of a production licence to grow for up to two ATP-holders. Although Sfetkopoulos determined that the pre-amendment regime was constitutionally defective, it necessarily has made no such determination with respect to the post-amendment regime. As the offence date of the Applicant’s charges is October 2 2009, the alleged offences took place under the post-amendment regime. The MMAR were amended before the Applicant’s alleged offence.”

 

The MMAR s. 54.1 defect found in Hitzig and then again in Beren was repealed two weeks after the Pallister case.

http://www.gazette.gc.ca/rp-pr/p2/2010/2010-03-31/html/sor-dors63-eng.html

 

Primacy of Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

The Supreme Court of Canada in, Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 para 82- 83 states:

 

82 Section 52(1) instructs courts to declare unconstitutional legislation of no force or effect. When a court issues a declaration of invalidity, it declares that, henceforth, the unconstitutional law cannot be enforced. The nullification of a law is thus prospective. However, s. 52(1) may also operate retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law: see, e.g., Miron v. Trudel, [1995] 2 S.C.R. 418.83

This Court has applied in many cases the “declaratory approach” to constitutional remedies, which implies that s. 52(1) remedies are often given retroactive effect. See, for example, Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, at para. 28, Gonthier J. On this view, s. 52(1) remedies are deemed to be fully retroactive because the legislature never had the authority to enact an unconstitutional law. In the words of Professor Hogg, a declaration of constitutional invalidity “involves the nullification of the law from the outset” (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 55-2 (emphasis added)). If the law was invalid from the outset, then any government action taken pursuant to that law is also invalid, and consequently, those affected by it have a right to redress which reaches back into the past.

 

Here is a word from Peter Hogg’s widely respected Canadian Constitutional Law. Courts are not allowed to do what the OCA did in Hitzig; says Hogg, “the courts may not reconstruct an unconstitutional statute in order to render it constitutional.” There ought to come a point at which a court “will recognize that an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court.” In such cases, as the Supreme Court Justice Lamer had argued in Schacter (1991), “it is the legislature’s role to fill in the gaps, not the court’s” (40-21, 5th edition, 2007)

 

As it stands right now, in fact and law, the offence of possession of marihuana is of no force and effect. Innocent people are being arrested and prosecuted unlawfully. This is a judicial and democratic mockery.