Transcript of the taping at the Ontario Court of Appeal, Nov. 7, 2011 at Osgoode Hall, Toronto of the appeals of the MedPot Magnificent Seven.
Justices Rosenberg, Sharpe, Juriansz presiding. Crown James Gorham against Appellant Parker; Crown Kevin Wilson against Pallister, MacDonald, McIntyre, McCrady, Hearn, Maloney; McKenzie Friend John Turmel for Appellants.
00:00 Clerk: Court is now in session, please be seated:
JOHN TURMEL: My Lords, my name is John Turmel and I’m agent for Terry Parker in the proceedings below and I’ve prepared the documentation for the other six appellants who are lumped into two triplets of arguments. So you might say there are three fronts: these are three medical convictees (Rob McCrady, Wayne Hearn, Sean Maloney) who are appealing their convictions on the basis that the exemption wasn’t valid when they were charged, and they didn’t know about it until just recently. And these three appellants, Gary Pallister, Mark MacDonald and Debra McIntyre who were charged and who then attempted to cite the Crown for contempt of court and to expunge the records of people who were convicted while the exemption wasn’t valid. That is their head of relief sought: citation for contempt and expunging; and their head of relief is the overturning of their convictions because of the Bad Exemption No Offence; they’ve introduced information about more flaws in the MMAR, constitutional challenges they would have loved to make but which are coming up from below regardless. And third, but not least, the Hitzig 170 decision that said that when they fixed the MMAR in 2003, said people just have to “establish medical need to simply be exempt.” And all six of these people have established medical need to be exempt. And in the case of Mark MacDonald, the Crown has withdrawn the charges against him but he’s still upset at being charged.
So I would like to help the court here, make their arguments in the shortest possible time. I could probably get all these 20 minutes each done in one hour if I could them all at once as it’s been prepared. I’d just like to know if I can have a reply after the Crown’s response and then I can cut it even more on the original presentation. So, would I be allowed to make their arguments and present their appeals? Otherwise, they’re just going to stand on their written arguments and let their written arguments stand with no responses to your questions. So I can help the court in that respect, I’d appreciate the opportunity to lay out the arguments in one hour.
But before I get there, I’ve tried to file a request for the right to televise the hearing live. We have a computer in the room with a live stream hook-up if the court should say okay. We have hundreds of others exemptees and shut-ins who are interested in the results of these hearings, especially people who have been charged. Plus it would save me taking my tape recording home and transcribing it and posting it in writing as I’ve done over the last 20 years. So I would like to ask if the court would permit us to turn on our livestream so that shut-ins may participate and listen in to these arguments. We can just set up the camera right in the corner there to pick up this area and that would be the only inconvenience if any at all.
So those are the preliminary requests, I hope I can help the court with the arguments and I hope that we can live stream this out to the shut-ins. Thank you.
03:44 ROSENBERG J.A.: Mr. Turmel, how long would it take to set up this camera if you had to do it?
TURMEL: Five minutes, three minutes.
ROSENBERG J.A.: A question for Mr. Maloney. It looks like your trial was conducted in French. Do you understand English well enough?
Maloney: Yes I do sir.
ROSENBERG J.A.: So, you’re content we proceed in English?
Maloney: Yes I am, Your Honor.
JCT: First, the court dealt with a technical jurisdictional issue. The court had appointed a lawyer to study the issue and argue a factum. He basically said Terry had the right to be there but that I hadn’t taken the right route.
04:15 ROSENBERG J.A.: Mr. Parker, this question is for you. Mr. Dawe is here on the jurisdictional issue. Do you understand that issue?
Parker: I do.
ROSENBERG J.A.: What the Crown is saying is that you have the right of appeal of some kind, they say Certiorari as opposed to the Summary Convictions Rules. I want to know whether you care about the jurisdiction issue.
Parker: Yes I do, Your Honor.
ROSENBERG J.A.: Why do you care about that?
Parker: Can my friend John Turmel explain it Your Honor?
ROSENBERG J.A.: Yes Mr. Turmel, why?
TURMEL: All right. The Amicus has raised the interesting argument that we should have proceeded by way of “Extraordinary Remedy” of Certiorari which would get us into this court properly saying that the application to appeal under section 40 in the Courts of Justice Act where we would have to use Summary Conviction Rules for such an appeal, was the wrong way to go. The S.40 rule that says that this is the way to go when there’s no other way and that you should use Summary Conviction Rules when there is no other way, well the Crown has argued that this makes it a Summary Conviction offence. And that we should be abiding by all the rules as if it were a Summary Conviction Offence but it’s not. A pound of marijuana is definitely an Indictable Offence and should be treated within the criminal stream.
ROSENBERG J.A.: Mr. Turmel, the Crown concedes that the route of appeal is not through the Summary Conviction Process, it should be by way of certiorari. You seem to be agreeing with that.
TURMEL: No. I’m saying that both are extraordinary remedies, the one that says that if there’s no way to do it here, you follow these rules, or you go to the real “Extraordinary Remedy” of Certiorari. Well, I think that Certiorari is called “extraordinary” because because it should be used as last resort. And there happens to be a lower court procedure under S.40 which is followable without having to bother a judge for extraordinary relief. Both the S.40 and the “Extraordinary Relief” say that when you can’t do it another way, you can come and do it this way. So which one is more extraordinary? And I say Certiorari is too extraordinary when S.40 provides a simple remedy following Summary
Conviction Appeal Rules. Thank you.
07:00 ROSENBERG J.A.: A quick point. What does the Crown say about the broadcast and Mr. Turmel speaking for the others.
KEVIN WILSON: With respect to the live streaming, the Crown is opposed. I’ve brought copies of S.136 of the Courts of Justice Act and there’s simply nothing in there that would permit it. Mr. Turmel relies on the exception which says: an unobtrusive audio recording may be made for the sole purpose of supplementing or replacing hand-written notes. A live webcast is not for that purpose so the Crown is opposed to that. And the Crown is also opposed to Mr. Turmel making the argument on behalf of the Appellants. He is not counsel. I appreciate this court has the discretion to permit a non- lawyer to make arguments but my understanding is that he is ordinarily not permitted to on appeals proper. I’ve seen him allowed to make arguments in Motions Court but the Crown’s formal position is that he should not be permitted to make arguments on these appeals.
JURIANSZ J.A.: There was a pilot project in this court for some months where appeals were web-cast. So, how did that work when it comes to this section?
WILSON: I have no knowledge about that at all. I know there was some steps taken towards possibly broadcasting proceedings in this court but I don’t know how the trial structure was presented.
SHARPE J.A.: Isn’t there some educational, some exception? I seem to recall for some power in the Chief Justice allow things for educational purposes.
WILSON: 136 subsection 3(c) says: “with the consent of the parties and witnesses for such educational or instructional purposes as the judge approves.”
SHARPE J.A.: “With the consent of the parties.”
SHARPE J.A.: You’re not.
WILSON: I’m not.
ROSENBERG J.A.: All right, we’ll break right now.
9:30 ROSENBERG J.A.: This is how we will proceed. First of all, we’re bound by S.136 of the Courts of Justice Act. So since the Crown does not consent in all these appeals, we can’t allow the broadcasting. If you wanted to tape record, you can do that Mr. Turmel to supplement your handwritten notes. Number One. Number Two, Mr. Turmel, we will hear you help make arguments and help these people with the arguments. And then we’ll address each of the Appellants and see what their position is with respect to what you’ve said.
10:10 And finally, Mr. Dawe, I think we’ll start with the jurisdictional issue.
JCT: So Mr. Dawe made the argument he thought we should have sought the Extraordinary Relief of Certiorari to have Justice Clement’s refusal thrown out. He said we should have used Section 830 (with leave) rather than 40 anyway if it was allowed but it’s not. Under certiorari, a judge can quash the order below but can’t substitute his own just one.
19:00 “the best way out of the mess created by Parliament.”
20:40 Can’t fault him
ROSENBERG J.A.: Mr. Turmel.
JOHN TURMEL: The relief which merely sets aside the order below which refused to get Terry Parker his marijuana back doesn’t help Terry Parker get his marijuana back. I mean he has to start over again. Go ask another judge to get his marijuana back and if says no, then we have to go for certiorari, and if wins that one, he still can’t have his marijuana back. So the relief suggested doesn’t end up getting Mr. Parker any relief at all. Seems the only relief is through the Courts of Justice Act of finding a way. Thank you.
23:50 JAMES GORHAM: The proper way is by certiorari. It begs the question: why the need to torture the proceeding into fitting into the Summary Conviction Appeals route when there is another route of appeals available, and that is an appeal by way of certiorari.
ROSENBERG J.A.: Well, it’s not really torture. It frames the criminal law to avoid the extraordinary remedy of certiorari, less (noise), less disruptive generally. So there is some rationale behind this. I wouldn’t call it torture but can you explain to us why the words of section 75 don’t apply.
JCT: All Gorham could respond was that the word proceedings should include only those of a prosecutorial nature, not going after his pot back when he isn’t charged with anything.
25:20 All proceedings under the Summary Conviction route are to commenced by laying an Information.
JCT: We’re using their rules, but we’re not a Summary Conviction offence!
GORHAM: That’s a mandatory provision: “shall be commenced by laying an information.”
JCT: If we were dealing with a Summary Conviction offence! We’re just following their rules.
GORHAM: Certainly an application under S.24 of the Controlled Drugs and Substances Act is not commenced by the laying of an Information.
JCT: Because it’s not a Summary Conviction proceeding, it’s a S.24 proceeding following Summary Conviction rules! But he’s doing his best to mix it up.
GORHAM: Laying an Information is a normal way of proceeding with an offence-related proceeding.
JCT: Which this is not. It’s just using the same rules, not the same route.
GORHAM: Mr. Parker wasn’t charged with an offence with respect to the marijuana that was seized. The proceedings that he brought were not brought within the larger context of a prosecutorial proceeding. So it’s not whether a peace bond should be issued within a larger prosecutorial proceeding. This is an entirely separate proceeding that Mr. Parker himself has initiated.
JCT: Right, it isn’t, it’s a new S.24 route following Summary Conviction construction rules. Different road. Same technique.
GORHAM: But it’s S.804 of the Criminal Code really settles this matter. And it reads: When a Summary Conviction
JCT: We weren’t before a Summary Conviction Court, were we?
GORHAM:.. has heard prosecutor, defendant and witnesses, it shall convict the defendant, discharge the defendant under S.730, make an order against the defendant, or dismiss the Information. Now, there wasn’t a prosecutor involved in this case.
JCT: So it wasn’t a Summary Conviction proceeding, was it then?
GORHAM: There was a crime but there was no prosecution. Mr. Parker was an Applicant who is not a Defendant who is not defending himself against criminal charges. The only possible reading of that could lend itself to the argument that my friend is asserts is that the Summary Conviction Court can make an order against the Defendant. And Mr. Parker was not a defendant.
JCT: And it wasn’t a Summary Conviction Court and he wasn’t a Defendant.
GORHAM: That is what the Summary Conviction Court does.
JCT: Which is why we weren’t before a Summary Conviction Court, isn’t it?
GORHAM: It is acting under the authority of that provision when it makes its decision in a summary conviction proceeding.
JCT: Which this wasn’t. Judge Clement wasn’t a Summary Conviction Court, was he?
GORHAM: That’s what Parliament intended a Summary Conviction to do.
JCT: Best reason we didn’t go there.
GORHAM: that clearly, Parliament didn’t intend that a Summary Conviction Court to hear applications under S.24 of the CDSA.
JCT: Which is why we didn’t go to Summary Conviction Court!
Har har har har.
GORHAM: You must read the definition of proceedings with that in mind; and I don’t think it limits it unnecessarily.
JCT: Totally, but not unnecessarily? Saying following Summary Conviction Rules makes it a Summary Conviction Proceeding leaves only Extraordinary remedy left.
GORHAM: There are examples of proceedings that could be affected by the definition of proceedings that I suggest. However, I couch those arguments with the assertion that the Crown is simply trying to raise this in the interests of justice. We don’t want this court to make this decision in the absence of a full argument, and if the court decides that the way to go in this matter is as a Summary Conviction appeal.
JCT: Keep in mind, it’s not a Summary Conviction appeal so I hope the court doesn’t fall for this silly argument.
GORHAM:.. then the Crown from a policy perspective would be perfectly happy with that.
JCT: He’d be perfectly happy with an Indictable Offence issue being dealt with as a Summary Conviction Offence!
GORHAM: We must raise this in the interests of justice, not seemingly what Parliament intended.
JCT: If he can get the court to forget it’s an indictable offence issue and think using the Summary Conviction Court rules makes it a Summary Conviction offence that has no relief…..
29:00 SHARPE J.A.: From something you just said, this wasn’t a proper proceeding in the Summary Conviction Appeals court? Is that what you’re saying?
GORHAM: I believe my friend said
SHARPE J.A.: You said it wasn’t a proper proceeding in a Summary Conviction Appeals Court.
GORHAM: I think what my friend’s argument is is that the proceeding before Justice Clement is considered a Summary Conviction proceeding..
JCT: Har har har har har. Of course it could not have been, didn’t he point out it takes an Information to start one of those! Har har har har. The judge really nailed him.
GORHAM:.. that Justice Clement was acting as a..
SHARPE J.A.: I understand that. Are you saying he shouldn’t have even dealt with it?
JCT: Because if there’s no information… Har har har har. The judge nailed him better than I’d have thought to! Sharpe is pretty sharp, isn’t he? Gutted him with his own contradiction! Har har har har. Justice Clement and Tulloch were both right!!! And now the Crown’s pinned. How’s he going to dance out of this contradiction? I can just imagine the pin coming up. Gorham says: Oh no, of course, he had the power to hear the motion. And Sharpe coups: But where’s the information to be a Summary Conviction Court? Let’s see:
29:30 GORHAM: No, Justice Clement certainly had jurisdiction under S.24 of the CDSA to hear the matter and make the decision.
JCT: Zinger coming up?
GORHAM: The question becomes: where does that decision go? from the point of view of review.
SHARPE J.A.: I just wanted to make sure.
JCT: Ah, too bad. He could have had the the classroom of law-school students in the room rolling in the aisles with the zinger. Ah well, dignified courtroom decorum costs the crowd a good joke on the Crown.
GORHAM: My friend has said that if it was a Summary Conviction proceeding, it goes by way of Summary Conviction appeal. And with leave, he can appeal to this court.
SHARPE J.A.: S.24 doesn’t have any right of appeal so you say it’s either certiorari or (cough).
GORHAM: Yes and I think the proper approach would be certiorari. I think the decision that Justice Tulloch made..
JCT: Which they are now challenging without actually having filed an actual appeal of that decision! A roundabout way of criticizing Tulloch without actually stating so in their Notice of Appeal).
GORHAM:.. on the issues that he considered are essentially the same issues that would be considered on an application for certiorari. So it’s not necessary for this court to send to Justice Tulloch on that error.
JCT: Of course setting aside the refusal below but with no order giving it back sends Terry Parker back below to start all over again.
GORHAM: The Court should look at Justice Tulloch’s decision as if it were a decision made on an application for certiorari. Those are the Crown’s submissions.
TURMEL: I just want to make the point that it was not a Summary Conviction Court. It was the Superior Court of Ontario using Summary Conviction Rules. And there’s a difference, I hope because a pound of marijuana is not a Summary Conviction, it’s indictable offence. So yes, we used the Summary Conviction Rules when when we couldn’t appeal under “indictable.” But it doesn’t make it a Summary Conviction Court. Thank you.
JCT: Darn, I forgot the zinger too.
ROSENBERG J.A.: We’ll reserve our decision on the jurisdictional issue. Mr. Dawe, thank you. All right, Mr. Turmel.
31:30 TURMEL: Starting back in 1987 with Terrance Parker who was first charged with marijuana offences and he raised medical need; and Judge Langdon dismissed the charges. Then the Crown appealed. And in 1988, Justice Shapiro dismissed the Crown’s appeal. Then the Crown did not appeal any further, rather they just busted him again in 1997 and he was charged with both possession and cultivation. Then Justice Sheppard gave him a stay, read in a stay for people with medical need. It was appealed by the Crown to this court, My Lord, you were presiding on that panel in that decision. Your court basically ruled that Terrance Parker medical need gave him the right to access the marijuana that had been prohibited under the Controlled Drugs and Substances Act. You declared that the Crown had not appealed the S.7 cultivation loss, only the S.4 possession loss and therefore your court could only strike down the S.4 possession offence though mentioning you would have struck down the cultivation offence had it been before you. And then the Crown did not appeal that any farther either, they just grabbed his pot a few years later. Now your court did grant him a 1-year exemption while you granted a suspension for the government to come up with a medical access regime that would be constitutional. One day before the 1-year exemption expired, they issued their regulations that took almost everybody a year to find the necessary specialists. So, needless to say, the very next day, one year after, your suspension expired. Terry Parker was again under unconstitutional jeopardy. And that’s when we started partying, calling it Terry Parker Day, “the Crown didn’t fix the exemption on time,” “it’s too late to fix now,” we’re dancing in the streets. Then Health Canada sent Terry Parker an exemption 6 weeks later, a temporary S.56 for 6 months. And we’re saying that’s still too late. When they blew it without doing it on time, the law died for everybody.
34:00 Nevertheless, on the day before his exemption was to expire, he filed an application in Superior Court to Justice Pitt to extend the protection, the Order of the Ontario Court of Appeal protecting him until the Government had complied with the Parker Court’s decision; or to declare that the marijuana prohibition is invalid because they had not complied with the Parker decision within one year.
Well, the Crown hadn’t shown up because a secretary didn’t think his service wasn’t good enough and didn’t give it to the Crown and we’re in here all alone, and Justice Pitt simply issued a judgment that said: I’m extending the exemption granted by the Ontario Court of Appeal in Parker until the Government complies with the court ruling.
So now, he’s protected for life, we think. Three weeks later, the Crown makes a motion that says: Because we weren’t there, we’re going to go to Civil Court and argue that we should set aside Justice Pitt’s decision as an unreasoned default judgment.
35:00 Now, he was extending a criminal jurisdiction protection for Terry Parker, granted by your Court under a criminal jurisdiction, and taking it away under civil jurisdiction by one judge when it should have been taken away under criminal jurisdiction by three judges, made it easy for the Crown. So, they convinced a judge to set aside Justice Pitt’s “default judgment.” Then we appealed, said: she can’t do that. And the Court backed up what she did so we’re still arguing that Terry Parker enjoys the immunity of the Justice Pitt decision until that decision is appealed and heard by three judges. So that was his first ground of relief and Justice Clement dismissed it and said: no, the Court of Appeal said that it was okay for civil court to set aside a criminal judgment as a default judgment. And then Justice Tulloch concurred as well. So those are his protections.
36:00 But in the meantime, the Sfetkopoulos decision came down which was exactly the same thing as the Hitzig decision back in 2003. The Hitzig decision had found, two years later, that there were flaws in the MMAR that made it unworkable. The two major flaws were the cap on patients per grower: 1, and the cap on growers per garden: 3. So the Hitzig decision declared those things flawed.
36:40 The Court then in J.P. who had raised the argument that: whoa, if there’s a Bad Exemption, must be No Offence. The Court in J.P. dismissed his charges and ruled that: when there’s not a valid exemption, there’s not a valid offence. We call that concept BENO: Bad Exemption means No Offence. And the opposite is that with a good exemption, you have a good offence and you’re in trouble.
37:00 So, now, they struck down the flaws in the Bad Exemption in October 2003 and 2 months later, Health Canada went and put those two limits back on. I call those the “Stupid Gimmes” from when you play chess and make a real boner move, and they let you have it back because it was too stupid to countenance. Well, when they went and reintroduced the same two flaws that had been struck down by the Hitzig Court two months earlier, you’ve got to admit that that was pretty stupid. And 6 years later, the Sfetkopoulos decision says: whoa, same flaw that gummed up the MMAR in Hitzig has not gummed up the MMAR in Sfetkopoulos. And then a year later, the Beren decision at the Supreme Court of Canada…
ROSENBERG J.A.: Could you lower your voice.
TURMEL: Okay. Stentorian. I’m used to the Occupy Toronto with the microphone.
ROSENBERG J.A.: We’re a much (noise) place. (Audience laughs)
TURMEL: So exactly the same flaw in Sfetkopoulos is declared and it’s appealed and then finally it gets to the Supreme Court of Canada. We have what we call, I went and dug into the Memorandum at the Supreme Court of Canada, what the Crown told the Court that we never hear about. And in paragraph 33, Sean Gaudet, the Crown Attorney said: “ The Court in J.P. ruled that the combined effect of Parker and Hitzig meant there was no constitutionally valid marijuana possession offence between Aug 1 2001, the first date when the MMAR wasn’t working and Oct 7 2003 when the flaws in the MMAR were rectified by Hitzig.
And of course, they didn’t mention that: we dropped 4,000 remaining charges at the time which allowed me to say: why didn’t you drop the 100,000 charges during that 2-year period too, 100,000 bogus convictions that these people are asking you to fix today. If you dropped the last 4,000 remaining charges, why didn’t you erase the bogus convictions all the way back to Terry Parker Day? That didn’t make it yet but we’re still asking.
39:20 So the Beren decision now discussed the cap on growers per garden: 3. And they found that was unconstitutionally limiting, uneconomic, and they scrapped the cap. The neat thing about this is that when Sfetkopoulos declared the flaw on patients to growers unconstitutional, the Crown Attorney said to the Supreme Court after they’d lost at the Federal Court of Appeal, the loss same as Hitzig: If you don’t let this in, the courts are going to asked to construe that a similar period of retrospective invalidity exists back to Dec 2003.
40:00 Yes. And when they lost Sfetkopoulos, rather than like in 2003 drop all remaining possession charges, and face me bugging them to expunge the 300,000 over 6 years, they simply didn’t drop any at all. They lost Sfetkopoulos, said: same situation as last time, and they didn’t do anything at all. And that’s why everybody is here charging them with contempt. Because when they admit to the Supreme Court they know that when there’s a Bad Exemption, there’s No Offence, and they’re going: Oh no, if you declare a Bad Exemption, they’re going to say No Offence again, and then they did! That second BENO period has an awful lot of people there, and the interesting thing is the Crown, in their factum argues that: oh all these defendants were charged after Sfetkopoulos fixed the flaws, like Hitzig did for 2 months.
41:00 But Mark MacDonald here was charged before the fix and they made a mistake in their factum. So, he’s actually charged before they fixed it. So when you read them boasting about how these appellants were all charged after it was fixed, well, here’s how they fixed it.
In Sfetkopoulos, April 23 2009 Supreme Court decision came down, a few weeks later, they re-imposed a new cap on patients to growers, not 1 lifted to infinity but now back down to 2! Almost insulting. And when Beren declared that the limit on growers to gardens if 3 was unconstitutionally limiting, a week later, they repealed the old section and they put in a new cap of 4! ? Well, if 1 patient to grower is unconstitutionally limiting, do you think 2 is much help? And if 3 growers to garden is uneconomical, think 4 is much help? They’re laughing at us. And they’re going to up it one at a time as we go back and get: 2 is unconstitutionally limiting and 4; and they’re going to up it up by 1. Then we’ve got to go back to challenge 3 with 5! This shows a contempt, and at the same time, that argument there, shows that they re-established the cap in Sfetkopoulos before they had fixed the flaw in Beren. So if either flaw exists in the MMAR, you have a flawed system. Two short circuits. Well, they turned this one off in Sfetkopoulos for 3 weeks before they put a new cap on we say is no better. And a year later, they fixed the Beren flaw, for a week, before putting a cap back on. So at no point since 2003 December has the MMAR ever been without one of the two Hitzig flaws that condemned it back in 2003 and got it thrown out.
43:00 So Terry Parker was charged [oops, pot seized] in the second BENO period in 2006 while the Sfetkopoulos decision said there was no exemption working and therefore no offence. So that’s the main reason he should have his marijuana back. All the others were charged with the same: after the MMAR got those two flaws installed back, they were never both removed at the same time like during the 2-month Hitzig period when the MMAR was actually fixed for awhile before Health Canada gummed it up again. So everybody here is arguing that the situation from 2003 still applies.
43:50 Now, if, for some reason, the Bad Exemption means No Offence of the J.P. decision isn’t accepted, we know we can’t raise the old POLCOA, which is only Parliament can resurrect a new law, because we agree with the first part ofthe J.P. decision which says Bad Exemption equals No Offence, but we disagree with the second part that said: now that we’ve fixed it, it brought the law back to life. Section 2(2) of the Interpretation Act says when a court strikes down a law, of no force and effect, it’s to be “deemed repealed.” And S.43(a) says you can’t fix something in one section and bring something back to life in another. So everybody’s coming up the chutes with the argument, to look the court in the eye and say: S.43(a) says Hitzig couldn’t fix the MMAR and bring the CDSA back to life. But that will take a panel of 5 judges we don’t have and that goes to appeal. So we’re stuck really only on the BENO arguments that deal with Sfetkopoulos and with Beren.
45:00 We have Mark MacDonald who the Crown Attorney says he was busted after they’d fixed it but he was actually busted before and that he doesn’t have any right to be here because his charges were withdrawn. Well, his charges were withdrawn, probably because they found out he was busted in the second BENO period when they say they haven’t fixed it yet; they’d made a mistake in their first factum, while Gary Pallister and Debra McIntyre are still stuck going through with their jury trials and their constitutional motions because they were busted after the Crown says they fixed Sfetkopoulos; but still not before they fixed Beren. So they’re arguing the same thing. Obviously, they’re asking for the expunging of the criminal records that were registered during those two periods, 2001 Terry Parker Day to Oct 7, the first BENO period, and then Dec 3 til now for the second BENO period, big changes, only you can do it.
Those are the arguments on why the Exemption being Bad made the law dead for the past 8 years since December.
46:30 TURMEL: Now we’re moving on to the issue raised by our medical people which is that they all are also arguing that the exemption is bad but now they’re arguing that not only was it declared bad in Sfetkopoulos and Beren, and Mernagh now, but they want expose another 23 flaws in the MMAR they want to complain about. Including improvement on the Mernagh argument which was that they want to have “more” doctors. Our constitutional is arguing that no doctor should be allowed to opt out. Terry Parker, ten years ago, he couldn’t find a doctor, they were 1 in 100. Six years ago, they were 1 in 60. Now they’re 1 in 15. Well, his family doctor won’t sign. And until his family doctor signs, why should he run around doctor shopping, there’s a flaw with the MMAR. So that flaw in the MMAR, with Mernagh, the recent decision found that the lack of doctors was a flaw, and he is the first Court to follow the J.P. decision. He said: Oh, flaws in the MMAR, CDSA prohibitions invalid. Just like J.P. and Parker-Hitzig.
47:45 Now the Crown Attorney has a factum full of cases where the courts were asked to ignore the Ontario Court of Appeal J.P. decision, and even though they found flaws in the MMAR, don’t declare no offence. [Gaudet Goof] He’ll point out in Sfetkopoulos, they they declared the flaw in the MMAR but they didn’t declare No CDSA Offence. And in Beren, they declared the MMAR was flawed but the lawyer still let him get convicted. How come J.P. when the MMAR was declared flawed, he got off. And how come Beren, when he proved the MMAR was flawed, he didn’t get off. So the Crown is saying: Look at all these lower courts who are ignoring your Court of Appeal’s J.P. decision and when they declared a Bad Exemption, they still convicted the guy of the offence even though it’s clear as day in J.P. and in the Gaudet Statement that the J.P. decision said there is no valid prohibition where there’s no valid exemption. So we have raised 26 issues in the Constitutional challenges coming up and I’m just going to zoom over them fast to show you the kind of head-aches these poor exemptees have.
(a) Of course, the new limit on patients to grower, that’s the first complaint;
(b) The new limit of 4 growers to garden, that’s the next complaint; (c) Section 65(1) orders that when the guys renewal is late, they’re supposed to destroy all their marijuana. Last year in 2010, they were swamped with 5,000 applications and everybody was late and they were advising people not to obey that section. So, that’s a pretty stupid section when you’re running a bureaucracy that’s always late to order people to destroy their medicine. Now, I don’t know anybody who’s ever done it but they’re ordered to and can be busted until they do;
(d) Letting an almost total majority of doctors opt out. That’s a threat to the right to life;
(e) The failure to provide a prompt authorization. What other prescription do you get from a doctor that takes 8 months to fill? I can get heroin faster than I can get marijuana;
(f) the failure to provide on-time renewals renewals of ATPs. They used to mail them out after the ATPs expired so that exemptees always went through a couple of weeks of fear and stress, I don’t know if they still do that but they’re late nevertheless, and when they’re late, they’re supposed to destroy it. So there are horror stories from 2010 all over the place;
(g) the failure to provide in-time online amendments of ATPs. There’s another violation. The point is it takes 10 weeks to change your address, how come with our health cards and driver’s licenses, we go online and get a new one in 6 days but these clutzes take 10 weeks, 12 weeks. Come on, it’s a high tech online world. Such incompetence isn’t accidental;
(h) And of course, the long delays in getting an RCMP grower authorization is like 8 months, are you going to wait that long for your medicine?;
(i) And of course, the inability of the system which was swamped with a lousy 5,000 new applications last year to exempt Canada’s total epileptic population of 400,000 people who are dying 10 a day, 4 of whom did know they were sick and it’s no surprise to find out they’re on the slab. Four a day, that’s a lot of people who are dying because they don’t have a joint.
(j) failure to provide a DIN Drug Identification Number to enable them to access financial support. This is the only medication that I can name and think of, garlic I suppose, that you can’t have subsidized and supported by government. So that’s another terrible limiting factor. +
(k) unreasonably compelling yearly renewals for people who have permanent diseases, especially when you’re always late on renewals. Imagine the torture that puts them through, and having to go see their doctor every year;
(l) prohibiting the removal of impurities to obtain the remaining hash and oil, well, that violates the Charter. They’re trying to keep the stuff dirty on purpose? What’s wrong with removing the impurities? They made it illegal!
(m) prohibiting an exemptee with a criminal record for marijuana from growing for himself. Well that impedes the supply because who can grow cheaper than you for yourself? Not it forces him to go out there and find someone else to do it, financial hardship in the way again;
(n) No respite from full-time growing. They can’t grow, they can’t save bulk, they should be able to grow a couple of year’s worth, bank it somewhere, and only do a crop every 2 years. But having the machine running every day forever it’s vulnerable for raids and attacks and other stuff like that;
(o) Too much personal information on card increases danger if they lose it, people have complained;
(p) Insecure mailed documentation, again of where their grow-ops are and where their marijuana is kept, insecure mail everyone’s complaining about.
(q) No fall-back to buy Health Canada marijuana if your crop gets wiped out. I mean, these are simple things that shouldn’t be this way. Someone is out there tormenting them on purpose.
JCT: I accidentally skipped (r) Exemptee cannot remove designated grower until end of permit;
(s) Cash costs to get a doctor to fill out the forms. People on ODSP can’t afford $250 to $500 to get a doctor to fill out the form, another impediment;
(t) Health Canada’s 12% recreational strain isn’t medicinal enough and that impedes effectiveness and the Right to Life;
(u) And they’re not allowed to exchange different strains for different pains, again impeding effectiveness;
(v) And of course, different strains provide different yields, so using the number of plants as your parameter is pretty stupid when some plants make big ones and others make little ones.
(w) And finally, the financial advantage lost by not getting patients off high-cost chemical drugs, we have stories of like $30,000 a year in chemical drugs, replaced by $3,000 a year in marijuana; onto low-cost herbal medications.
(x) And during the year when they were late with all their renewals, that was because Health Canada was busy phoning doctors to harass them about their prescriptions being too high and trying to get them down to a flat 5 grams for everybody. Some people are up there over a hundred right now. Can you imagine the devastation, some guy’s got 100 gram per day medicinal need and all of a sudden he’s cut back to 5? Pursuant to Health Canada harassing his doctor? We have a case where the doctor was called twice, 40 minutes at a time, finally, he got so fed up he threw the guy (exemptee) out of his office and acted kind of upset. So it works. Pharmacists at Health Canada aren’t filling out forms and processing renewals, they’re out there harassing doctors.
(y) Five million Canadians do not have family doctors and cannot participate in the program. That whole five million people are completely denied access to the safest, healthiest herb on the planet.
(z) stress caused by all these defects in the MMAR process violate their Right to Life.
So that’s the kind of situation and regime these people have had to put up with. Almost all of them couldn’t find doctors until they were busted and finally, they ran into a network of people who had new sympathetic doctors and got them signed up. This shouldn’t be this way.
56:00 The system is such a stinking mess that given the fact the Hitzig decision back in 2003 said: Establish medical need to simply be exempt. Well, in 2004, Johnny Dupuis brought his medical file to Justice Chevalier in Quebec Court and said: Hitzig 170 says to establish medical need and I’m doing it. And Justice Chevalier stayed his charges.
Similar example, Derek Francisco, charges withdrawn, they returned the marijuana and the equipment. So a S.24 order and he got his exemption 7 months after the charge. He established medical need at the time. So all of these ill people have established medical need by getting an exemption.
46:45 In Rob McCrady’s case, he actually applied before he was busted, okay? And if it hadn’t been for the 6-month delay, his judge said: it’s too bad that it didn’t come earlier or he wouldn’t have been convicted. So the 6-month delay is the reason Rob McCrady is in front of this court. Screw-ups again and it’s made the news. It’s not as if we don’t all know. So, that’s it.
57:15 On the basis that the charges of these people should be convictions overturned, or the Crown Attorney cited for contempt for prosecuting a law they know a court should construe has been invalid for the last 6 years. And if not, then take a look at the lousy MMAR and all the flaws that they could have raised, and that we are going to raise in upcoming constitutional motions which have just been posted on my site and everybody’s going to be using the same one and going to all their jury trials with the same information.
And finally, establish medical need.
58:00 So this is an opportunity for this court to fix a real mess that’s happened over the next 10 years. And if you can’t declare the law’s been dead for the past years because of BENO, and you can’t force the Crown to stop prosecuting people, then you can jail them for contempt until they stop prosecuting the people under this law, No Offence, while there’s a Bad Exemption. So on that basis, I think I’ve explained everybody’s arguments and I thank you very much.
ROSENBERG J.A.: Thank you Mr. Turmel. Well just ask each of the Appellants, starting with you Mr. Parker, is there anything you’d like to add to what Mr. Turmel said?
PARKER: Your Honor, I’d like to express to the court that this year, on Sep 10, my mother died from lung cancer and before she died, I approached the doctor and said: The CIA has known since 1957 that THC kills cancer cells. Why not give mom an IV of THC, reduce the tumors so she can breathe, kill the cancer. “I’m sorry Mr. Parker, that’s against hospital policy, we cannot help your mother that way.” Your Honor, it’s submitted that if we’ve got cancer victims who cannot benefit from marijuana who are dying from cancer, how can we see good faith in the medical profession when needing marijuana for MS, epilepsy, CP or whatever. I for years have tried to act in good faith with the medical profession to get marijuana recognized for epilepsy, I spent 20 years before the courts recognizing marijuana for treatment and the courts have declared it constitutional. I don’t see any justification for them taking it away from me when Justice Shapiro was not appealed in 1988 and your Lordship wasn’t appealed in 2000, and without justification, I would appreciate if I could have the marijuana returned so I can survive epilepsy and and maintain my Section 7 Right to Life. Thank you.
ROSENBERG J.A.: Thank you Mr. Parker, Mr. Pallister? Do you adopt what Mr. Turmel has said?
PALLISTER: Yes sir.
ROSENBERG J.A.: Is there anything you’d like to add?
PALLISTER: No sir. Mr. Turmel said it all, thank you.
ROSENBERG J.A.: Mr. McCrady? Is there anything you’d like to add or do you adopt Mr. Turmel’s arguments?
MCCRADY: I adopt what Mr. Turmel said.
ROSENBERG J.A.: Okay. Thank you. Mr. Hearn?
HEARN: I adopt what Mr. Turmel says.
ROSENBERG J.A.: Mr. MacDonald? The charges against you were withdrawn?
MACDONALD: They were stayed.
ROSENBERG J.A.: They were stayed, okay. Ms. McIntyre?
MCINTYRE: Everything is in the docket as as for what I want to add, I spent 8 years trying to find a doctor and in the meantime, I’ve lost total vision in one eye as a result. I lost my regular doctor and my opthomologist when I proved medical marijuana stopped me from going blind. It was in my tests as a patient, and it’s calculated and it’s proved. But as a result of harassment of Health Canada, they dropped me,
I have documentation. So I’ve tried for many years to do what I could and Mr. Turmel’s information in the files are accurate to me and I accept it. Thank you.
ROSENBERG J.A.: Thank you. Mr. Maloney?
MALONEY: In my matter, I live in the Province of Quebec and I’ve been living there for over 5 years. And for Health Canada, for me, for doctors to sign your application, they have to sign a waiver that makes them not responsible. In Quebec, it’s actually illegal for any of the doctors to sign any of the documentation. The Section that preserves doctors from signing. So, unless you have 3 to 6 months to live, it’s very hard to find a doctor that will sign any of those papers for your documents. And that’s the only way you’re supposed to be doing it legally is to go through that system. I know this is the appeal court for Ontario when my matter, I had to go to Ontario to find a doctor. And there’s tons of other people who need doctors to sign the papers and they can’t find them in Quebec. Like, once this matter is taken care of, what’s going to happen when I have to renew my prescription, or renew my license, the problem’s not really going to get solved. There’s always going to be people to come back in front of.. we need some change. The law is very bad faith. And we’re not the only people that are suffering, that have to go through this. To me, I actually got sentenced, I spent one weekend in jail, it’s not very much, okay, people do way longer, but I have family, I was torn apart from my family, I didn’t have my medication, I’m proved medical, and in my case, the judge actually told me my scoliosis and my medical condition were irrelevant to the fact that I used medical cannabis. It’s right there in the transcript. I have information downloaded from Health Canada’s web site that recognizes scoliosis or any kind of spinal cord disease, it’s a disease, I have it now, I had it when I was younger, and I’m going to have it for the rest of my life. So I want to know what’s going to happen when my exemption, I have to renew it and there’s another problem? I’m going to have to keep going to court and defending myself all the time? In cases like Matt Mernagh, federal exemption were (noise). I don’t know if you do that for everybody but the system should really be changed to avoid (noise). Thank you Your Honor.
1:04:20 ROSENBERG J.A.: Mr. Maloney, you only appealed the conviction, you didn’t appeal the sentence.
MALONEY: Well, my sentencing was actually overturned until November.
ROSENBERG J.A.: I understand. You’re on bail, but you didn’t appeal the sentence, only the conviction.
TURMEL: He should have, Your Honor, my mistake, I’m sorry. I should have been in there. It’s the only reason that the Crown allowed it and consented was because they presumed appealing his sentence which was pretty onerous, 10 weekends in jail when he’s got to travel two hours.
ROSENBERG J.A.: Mr. Wilson, do you oppose an application for an extension of time to appeal the sentence?
WILSON: No, I don’t oppose that.
ROSENBERG J.A.: Oh, you wanted to say something Mr. McCrady?
MCCRADY: I just wanted to say that in my particular case, I spent the better part of 2 years looking for a doctor in my town Sudbury Ontario and every single doctor in that city, as soon as you bring up medical marijuana, they pretty much throw you out the door. They aren’t even willing to discuss. My family doctor told me: come back in 50 years when I’m on my death bed with cancer and he would consider it then. But other than that, sorry about your luck. I found a doctor in 2008, I had to travel to Toronto to see the specialist in chronic pain and he signed me up for a 5 gram a day license, and 4 months later, after all the delays I had been put through with Health Canada, with forms being invalid, out of date, or changing things. The application I sent in was printed directly from their web site and the forms were out of date. So I had to re-submit my application, I had to get my doctor to re-fill out the forms. It took 4 months before getting arrested for possession and they charged me with possession for the purpose of trafficking and proceeds of crime for having $180 for our grocery fund for my family.
Because of the arrest, it pretty well tore my family apart. My relationship’s been shaky ever since. Even the judge at my trial told me: well, it’s unfortunate that your license didn’t come a little bit sooner or we wouldn’t even be here. You would have been exempt when they came and everything would have been fine. But it’s unfortunate that it took 6 months for your card to get to you after you applied. I don’t know anyone who would wait 6 months after getting a prescription. Like I was prescribed it as a pain-killer. And would anyone wait 6 months to fill a prescription? That’s all I have to say on that fact.
ROSENBERG J.A.: Thank you. We’ll take a break.
1:08:00 Mr. Wilson, you’ll go first.
ROSENBERG J.A.: Thank you. We’ll take a break. Mr. Wilson, you’ll go first.
WILSON: Thank you Justice Rosenberg. Side 2 of the classic Emmerson, Lake & Palmer album, Brain Salad Surgery, opens with the line: Welcome back my friends to the show that never ends.
JCT: What does he think guerrilla law means? We’re going to lose a few dozen battles and quit the war? Quitters never win, winners never quit.
WILSON: And that’s where we are today, once again. I’m responding to 6 Appellants who appear to have been persuaded that Mr. Turmel understands the law better than this court does.
JCT: Referring to all my pre-Sfetkopoulos losses before everything changed!
WILSON: Mr. Turmel has made it very clear that he has no interest in seeing this show end.
JCT: No, I’ve got lots more shows coming up the pipes.
WILSON: He has posted some fresh materials on his web site which he will now be encouraging people to use in their jury trials under various cannabis offences. Maybe if not most, if not all of the same arguments Mr. Turmel advanced today are arguments he has made on his own behalf in this court and lost.
JCT: No, everything changed with Sfetkopoulos, we’re not raising POLCOA as I already explained to the court, so losses before the new jurisprudence are irrelevant now.
WILSON: More than once. And he’s been the man behind the curtain, perhaps today stepping out from behind the curtain, for numerous other accuseds and appellants including the ones here today.
JCT: Sounds like he’s getting frustrated I won’t quit. Besides, I’ve got new cards to play: Sfetkopoulos, Beren, Mernagh! A whole new hand of cards.
WILSON: This court has rejected his arguments over and over, most recently in Real Martin and Reverend Ethier, but people keep advancing it.
JCT: Actually, those rejected POLCOA arguments aren’t being advanced at all but it can’t hurt to hope the judges won’t notice. Besides, I’d already explained how people would keep looking them in the eye and saying “Bad Exemption Means No Offence” or “S.43(a) says fixing the MMAR couldn’t bring the CDSA back to life.” How could they chastise people asking?
WILSON: This court has unequivocably held that these offences still exist but people keep arguing that they don’t. And so, here I am asking the court to try again, even though I’m not sure how you can be any clearer than you have already been.
JCT: I agree all the pre-Sfetkopoulos POLCOA appeals have been clearly rejected. The reason we’re not arguing POLCOA again here with insufficient judges anyway.
WILSON: Maybe it would help if you were to say specifically that being charged with a particular cannabis offence on a particular date doesn’t give you standing to challenge the constitutionality of all cannabis offences on all dates ever, or to challenge other people’s previous convictions for cannabis offences. Maybe it would help if you were to say specifically that the Alberta decisions in Krieger did not repeal the offence of production of cannabis. Maybe it would help if you would say specifically that paragraph 170 of Hitzig doesn’t everyone who’s sick an automatic constitutional entitlement to cannabis. Or maybe it would help to go further. Maybe it’s time to formally and expressly to de-link the fine tuning of the Marijuana Medical Access Regulations from the constitutionality of the cannabis offences.
JCT: Can’t do that. Not enough judges. It takes 5 judges to over-rule the J.P. decision that the constitutionality of the cannabis offences are linked to the the MMAR! Darn, I forgot to use that line later. Ah well, that’s the fun of parsing stuff, we still get the yuks even if the fun lines weren’t used.
WILSON: This court went some way in that direction in the recent decision in Real Martin…
JCT: Har har har. Bringing up Real Martin’s loss is going to back-fire!
WILSON:.. by in effect following the decision in Beren which said that if you weren’t at least asserting a medical need or a holder of an Authorization To Possess, then those arguments from Beren and Sfetkopoulos are not ofassistance here.
JCT: Sure, Martin lost getting his Cultivation charge quashed after being busted in the Krieger BENO Cultivation period even though his Possession charge was quashed after being busted in the Parker BENO period. And if he wasn’t sick to beat the Possession, he shouldn’t have needed to be sick to beat Cultivation. But not claiming medical need, he lost. So the Crown cites that the invalidation of the law does not apply to people not claiming medical need! And that’s why, after losing Martin because of his non-medical status, we’re back now with 6 people with who are claiming medical need! Har har har. He’s saying these medical people can’t claim Krieger Cultivation invalidity because the non- medical guy couldn’t.
WILSON: In my submission, this Court could not have intended in Hitzig and J.P. that the cannabis offences be a permanent risk of invalidation whenever a judge somewhere in Canada finds fault with the regulations. To the contrary, this court’s express intent in paragraph 170 of Hitzig was to remove “the cloud of uncertainty from the marijuana prohibition.” In particular, it can’t have been this Court’s intention that cannabis offences be at risk of retroactive invalidation. In J.P., paragraph 16, this Court said: “an accused must be able to know on the date that he is charged with the offence with which he is charged exists. The accused cannot be told that the validity of the charge will depend on what the government will choose to do at some future date. The accused similarly can’t be told that the validity of the charge will depend on what some civil court may choose to do with the Regulations at some later date. On its own internal logic…
ROSENBERG J.A.: Tell me something which I’ve never understood and this was: when this Court struck down 41(b) and 54, why was the government’s response to re-enact them?
JCT: Gurgle gurgle! First time the Crown’s ever had to answer why they put back the Stupid Gimme caps.
WILSON: Well, the Government’s response was to provide a supply produced by Prairie Plant Systems in the mine in Flin Flon. In Hitzig, this Court specifically said: here’s what we’re going to do. We’re a court, we can’t legislate.
JCT: POLCOA Parliament Only Legislates, Courts Only Abrogate
WILSON: We can strike stuff down. So our remedy, as a court for what we see as a problem of supply, is the strike down these two provisions. But the Government may choose to do things differently. And in fact the Government did choose to do things differently.
JCT: Actually, the Government did not choose to do things differently but chose to to them in exactly the same unconstitutional way as had been condemned before!
WILSON: It started its own supply and, treating that, in my submission, correctly, as a sufficient remedy for the supply issue.
JCT: A remedy for people who buy from Health Canada, yes!
WILSON: The legislature was then free to put back the restrictions that this court had struck down for lack of a judicial remedy.
JCT: So because they were now providing it to the non- growers, that makes putting the caps back on growers okay?
WILSON: But that doesn’t mean that those provisions were inherently in and of themselves unconstitutional.
JCT: I guess Sfetkopoulos and Beren declaring those provisions unconstitutional a second time is a pretty good hint that they were inherently unconstitutional!
WILSON: The striking down of those provisions was simply this Court’s straightest line to resolving what it found was an unconstitutional issue about supply. Sfetkopoulos on its own internal logic isn’t even retrospective. Paragraph 12 of Sfetkopoulos, Justice Strayer’s reasoning was: only 20% of people with authorized licenses to possess were making use of the government product. And that was the foundation of his decision, that there was a supply problem. But that does not put the supply problem on the regulation, that puts the supply problem on the behavior of the people who are making application under the Regulations. If the facts of that case were that 80% of people with ATPs were using the government product, then Justice Strayer would not have found, presumably not have found any supply problem. On exactly the same regulations.
JCT: “Presumably” NOT. He argues because only 20% were not affected by the caps on growers and a whole 80% were affected, it was the users’ fault for not switching from growing to buying. Had 80% bought from H.C. and not been affected by the caps, presumably, that “presumably” would have made it all okay for the 20% still growing to also not be affected by the caps on growers! Har har har. Pretty stupid eh? Actually, it’s only when 100% are buying and 0%are growing that the caps on growers have no unconstitutionally limiting effect! It’s as if these guys never learned algebra. Oh right, lawyers, the math class weaklings.
WILSON: So the problem was not in the Regulations, so the problem was not a retroactive problem caused by the Regulations..
JCT: Like the last time it was found so in Hitzig…
WILSON: the problem was people were not availing themselves of the Government Supply.
JCT: Right. If they’d all bought H.C. herb and stopped growing, caps on growers would have had no effect.
WILSON: And if that created a constitutional problem. I say it doesn’t. It’s like in Little Sisters, the Supreme Court said: the fact that unconstitutional behavior under legislation is possible, that doesn’t make the legislation unconstitutional. So the fact that the people applying for authorizations and then finding their own way to a supply, weren’t making use of the government-supply, wasn’t the fault of the Regulations.
JCT: So if everyone had stopped growing and switched to buying, then the caps in the grower regulations wouldn’t be at fault. If…
WILSON: So, because that wasn’t something that the Regulations caused but something that developed later as the Regulations played out, it can’t fairly be said that the effect of Sfetkopoulos could be retrospective.
JCT: It was retrospective the last time they dropped the 4,000 charges. I guess they’re now not accepting the retrospective nature any more is the reason they drop the remaining charges this time like they did last time.
WILSON: I won’t go through the Hislop argument I’ve advanced. It’s in all three versions of the Crown’s factum, it’s a fairly technical legal argument, and I can see that it’s probably better if that issue gets addressed when there are counsel on both sides so that both sides of that issue can be hammered out. But it’s there for the court’s consideration providing other rationalizations for why any further tinkering with the Regulations should at most have prospective effect rather than retrospective effect.
I will go briefly through each of the individual appellants. I’d like to flag some dates for the Court that are important. Jan 10 2008 is the decision of Justice Strayer in Sfetkopoulos. Perhaps more importantly, Oct 27 2008 is the decision of the Federal Court of Appeal in Sfetkopoulos. I’m advised by my colleague James Gorham that there was a stay of the Sfetkopoulos trial decision obtained pending the decision in the Federal Court of Appeal but that there was no stay from that point forward. That’s the complete answer to Mr. Turmel’s assertion that Mr. MacDonald was charged before Sfetkopoulos. That’s simply not true.
JCT: So because they didn’t seek a stay out of the Supreme Court, Sfetkopoulos took effect to fix the flaw before Mark was busted in Oct 2008. Luckily, Terry had his pot seized in 2006 before they fixed it!
WILSON: Mr. MacDonald was charged on Dec 8 2008, that is clearly some 6 weeks or so after the Federal Court of Appeal decision in Sfetkopoulos at which point the declaration of Justice Strayer would have taken effect and remedied what, in the shorthand, what I’d call the Sfetkopoulos problem. I’m not conceding there was a constitutional problem there but to the extent that Justice Strayer found that there was one..
JCT: He’s not conceding it even though that’s what Justice Strayer had found!
WILSON:.. he fixed in January of 2008 in a declaration that, at worse, took effect in October of 2008. Another important date is Feb 2 2009, that’s the date of Justice Koenigsberg’s decision in Beren in the B.C. Supreme Court. She followed Sfetkopoulos on the issue of lawful supply but suspended her declaration for a year. So the legislation is still valid for a year after Feb 2 2009 on the basis of Beren.
JCT: So the flaw is still present for a year.
WILSON: May 14 2009, that’s the date the MMAR were amended in response to Sfetkopoulos and March 11 2010 is the date when the MMAR were amended in response to Beren.
JCT: What he calls amended is putting the flaws back plus one! What he calls amended is back to invalidity when the flaws are re-installed! It’s when the suspensions run out and the judgments take effect that the flaws become fixed, not these amendment dates where it gets unfixed again.
SHARPE J.A.: Isn’t that slightly after…
JCT: Right, the Crown skipped right by Mar 4 when the Beren decision took effect to strike down the flaw and 7 days later when the legislation was amended to put it back. Glad Sharpe caught the distinction.
WILSON: I think it’s about 8 days after the expiration of the suspension of invalidity. And that becomes possibly an issue in the Hislop argument. As I said, I’m not going to go through that, it’s there for the court’s consideration in all three versions of the factum.
JCT: The Hislop case he’s using against us but which he didn’t argue because it should be argued by lawyers but they should still consider it without any answer from the non- lawyer.
WILSON: So, these dates are important because different law has different effect on different offences. So let’s look at Mr. MacDonald. He was charged for Possession for the Purpose but as he as admitted, that charge has been stayed by the Crown.
JCT: They had to beat the admission out of him?
WILSON: But as I’ve pointed out, the offence date was after the Federal Court of Appeal decision in Sfetkopoulos. So if the argument is, and it seems to be, that Sfetkopoulos retroactively invalidated the offence to 2003, that’s not going to help anyone who’s charged after that decision when it has, by declaratory effect, remedied the problem that it reported to uncover. His offence date is prior to the decision in Beren. So if he’s right about Beren having some retroactive effect, then his offence is within the period that would be affected.
JCT: Right. All their offences are within the period before Beren fixed the second flaw.
WILSON: But Justice Koenigsberg found a flaw with the Regulations but she still found Mr. Beren guilty. She said in so many words: she found the Regulations were fine as they related to non-medical applicants.
JCT: And now there are no non-medical applicants! All are medical here! So that argument should not apply to them. Besides, if you’re not medical, they’ll reject your MMAR application. So of course, the Regulations are fine for people who aren’t going to use them!
WILSON: Mr. Beren was supplying what are called Compassion Clubs and Justice Koenigsberg nonetheless found that that wasn’t enough to get him the benefit of her finding that there were problems with (noise). The very last paragraph 136 of Beren, Justice Koenigsberg says: “In relation to the charges against Mr. Beren, the Crown, having proved beyond a reasonable doubt that Mr. Beren was producing and trafficking in marijuana for the purpose of supplying a Compassion Club, which in turn was selling the marijuana to most of its members who did not have ATPs and thus were not licensed to possess, which parts of the MMAR I have found to be valid is guilty on both counts.”
JCT: The Hitzig Court found all the other parts of the MMAR to be valid too while condemning only the flaws. Pretty irrelevant to care about which sections work when the J.P. link says the validity of the CDSA relates to which ones do not.
WILSON: Mr. Turmel has said that all 6 of the appellants whom I’m responding to assert a medical need. There’s nothing in Mr. MacDonald’s material that asserts a medical need or that says his arguments are dependent on a medical need.
JCT: That’s because he’s not there fighting a conviction with Hitzig 170 by establishing medical need. He’s only there to cite the Crown for contempt for having busted him under an invalid law and medical need has nothing to do with that. So yes, Mark did not need to assert medical need though his exemption proves he had it when busted, the reason they stayed the charges.
WILSON: Those are the arguments I’m responding to, not some flip-flop on medical need at the 11th hour.
JCT: No flip-flopping to medical need from Mark. He’s not playing the medical need card at all. But let the Crown beat that untendered card.
WILSON: So Mr. MacDonald is not entitled to any benefit from Beren either.
JCT: And the other five are! And not MacDonald only if you accept that Beren restricts the invalidity of the law to only those with medical need. Does it say so in the law? that it is illegal to possess marijuana (except for sick people?) No, it only says it is illegal to possess and there’s no distinction between sick or not anywhere and I really don’t care too much when judges make things up.
WILSON: Mr. Pallister is charged with Production, Possession, and Possession for the Purpose, his charges are still before the courts. To the extent that Sfetkopoulos of Beren might add anything to his argument, fundamentally, my position is: this Court has said over and over again that those offences still exist.
JCT: To my POLCOA motions before the blew the BENO in Sfetkopoulos.
WILSON: That being said, to the extent that Beren or Sfetkopoulos might add anything, his offence date, Oct 2 2009, is after the MMAR were amended in response to Sfetkopoulos.
JCT: Amended by putting the flaw back in plus one.
WILSON:.. and it is during the Beren 1-year suspension of the declaration of invalidity. So, for his offence date, neither of those cases helps him.
JCT: Har har har har har har har har har. At this point, I’m shaking my head in disbelief at the shot I’m going to be able to deliver when it’s my turn. Har har har har.
WILSON: Debra McIntyre is charged with production of cannabis and possession of cannabis. Her charges are still before the courts. Again, this Court has repeatedly held that the offences still exist.
JCT: Pre-Sfetkopoulos he keeps forgetting…
WILSON: And her offence date, Jan 7 2010, is also like Mr. Pallister, after the Regulations were amended in response to Sfetkopoulos.
JCT: Keep in mind that his context here is that “amended” means “fixed” while we know it’s really being re-broken by the addition of the old flaw plus one. Still, prior to that, the declarations did take effect so we can live with his false labeling of the event.
WILSON:.. and during the 1-year Beren suspension of invalidity!
JCT: Har har har har har har har har har.
WILSON: Mr. McCrady was tried for Possession and Possession for the purpose of trafficking and convicted of the lesser included offence of simple possession. And because it was the lesser included offence, that makes it the indictable offence of simple possession is what gets him before this Court. His offence date, Feb 20 2009, is after the Federal Court of Appeal decision in Sfetkopoulos, so when the declaration in Sfetkopoulos had already corrected whatever frailty Justice Strayer found in the Regs; and it’s during the 1-year Beren suspension of invalidity. So neither case helps him.
JCT: Har har har har har har har har har. Nyuk nyuk nyuk!
WILSON: Mr. Hearn entered a guilty plea for Production of Cannabis, he has now changed his mind and wants that plea overturned. He does, both in his materials and before this Court, assert a medical need. There are fairly strict requirements for overturning guilty pleas which, on the record before this Court, he hasn’t either addressed or satisfied. And in any event, to succeed here, he has to succeed in his argument about the existence of the offence. Again, this court has repeatedly held that the the offence of Production still exists.
JCT: All decisions pre-Sfetkopoulos.
WILSON: Mr. Hearn’s offence date, April 22 2009, is after the Federal Court of Appeal decision in Sfetkopoulos and during the 1-year Beren suspension of invalidity. So neither of those cases helps him.
JCT: Har har har har har. Nyuk nyuk nyuk nyuk nyuk!
WILSON: Finally, Mr. Maloney, he entered a guilty plea to Possession of Cannabis for the purpose of trafficking. Like Mr. Hearn, he now wants that plea overturned. Like Mr. Hearn, he hasn’t, on the record before this Court, satisfied or addressed the requirements for overturning a guilty plea. This Court has repeatedly held that the offence of Possession for the Purpose still exists. This, Mr. Maloney’s offence date June 6 2010 is after the Regulations were amended in response to Sfetkopoulos and after the Regulations were amended in response to Beren so neither case helps him.
JCT: Thank God for Sean that they put the flaws plus one right back in. Now if you haven’t been getting why I was busting up laughing inside, you have to keep track of the opposite-speak. Amended means rebroken.. During the Beren suspension before it was fixed.. Hey wait, it’s during the suspension that the flaws is still there. It’s during the suspension that the law is invalid. Remember a few lines back when Wilson argued:
“So if the argument is, and it seems to be, that Sfetkopoulos retroactively invalidated the offence to 2003, that’s not going to help anyone who’s charged after that decision when it has, by declaratory effect, remedied the problem that it reported to uncover. His offence date is prior to the decision in Beren. So if he’s right about Beren having some retroactive effect, then his offence is within the period that would be affected.”
And now he’s arguing that being charged within the suspension doesn’t help them! A pure clean contradiction. He’s now saying: Pallister was busted after Sfetkopoulos fixed the flaw and during the Beren suspension. Well, during the Beren suspension, the flaw had not yet been fixed. It was only after the suspension expired that the flaw was fixed. So now go back and every time he says “after Sfetkopoulos fixed the flaw and during the Beren suspension,” replace it with “after Sfetkopoulos fixed the flaw and before Beren fixed the flaw! Har har har har har har. Nyuk nyuk. Getting the effect of Beren completely backward after first explaining it right! Opposite-speak is going to get punished. Zinger coming up!
WILSON: Unless the Court has any additional questions for me, those are my submissions.
ROSENBERG J.A.: What do you say about the sentence for Mr. Maloney? I can’t tell, it doesn’t look like he has a criminal record. I certainly can’t tell from (noise).
WILSON: I think that may be right. The trial judge certainly took into consideration in a very significant way Mr. Maloney’s medical need.
JCT: Har har har. After Sean just complaining about how the judge did not take medical into account at all! Padding the statement with the word “significantly” lets him argue that almost nothing is still significant to him!
WILSON: Yes, there was no previous record. While I wouldn’t want to concede that that a custodial sentence is always out of the range for the offence of which Mr. Maloney was convicted, given his personal circumstances, I wouldn’t oppose essentially any more lenient sentence this Court felt was appropriate in his personal circumstances.
JCT: That pretty-well cinches Sean not going back to jail. Absolutely clean record and thrown in jail on his first offence. Suffered no medicine while there. No way they’re going to send him back. I’ll give 5:1 he’s not going back.
ROSENBERG J.A.: When does Mr. Maloney’s bail expire?
TURMEL: Nov 30th, My Lord.
ROSENBERG J.A.: Yes, Mr. Gorham.
JCT: Transcript #5 of the taping at the Ontario Court of
Appeal, Nov 7 2011, Osgoode Hall, Toronto of the appeals of the MedPot Magnificent Seven.
Justices Rosenberg, Sharpe, Juriansz presiding. Crown James Gorham against Appellant Parker; Crown Kevin Wilson against Pallister, MacDonald, McIntyre,
McCrady, Hearn, Maloney; McKenzie Friend John Turmel for Appellants.
ROSENBERG J.A.: Yes, Mr. Gorham.
GORHAM: Your Honor, in my submission, I’ll be making reference to the Appeal Book, the 2-volume version of the Appeal Book. I’ve also prepared a brief compendium of the relevant portions of my case (noise). Mr. Parker’s case obviously differs from the other cases you’ve heard this morning insofar as he’s brought an Application for the Return of Marijuana, he was never charged with an offence, so he’s not appealing a conviction or sentence with respect to an offence. I say that because it’s very relevant to Mr. Parker’s appeal. The issue before the Court is whether Mr. Parker is lawfully entitled to possess marijuana, and for the purposes of this appeal, the Crown submits that there are two relevant dates with respect to Mr. Parker’s entitlement. First off, I’ll be submitting the date that Justice Clements made his decision. It was: did Justice Clements make an error on the face of the record by finding Mr. Parker was not lawfully to possess marijuana on Dec 7 2007. And I submit that Mr. Parker has an additional hurdle and it’s that Mr. Parker must convince this Court that he has an ongoing entitlement to possession of marijuana. If this Court finds that the lower courts erred, the remedy would be to send it back for a determination.
And if Mr. Parker does not have an ongoing entitlement to possess marijuana, then he not be successful on any application, present or future, to return marijuana until such time as he becomes legally entitled. The Crown’s submission is he does that through the Marihuana Medical Access Regulations. I’m not going to go over my friend’s submission with respect to constitutionality of the provisions, of the effect of Sfetkopoulos and Beren. I obviously, fully agree with Mr. Wilson on his points. I’m going to address specifically the question of whether Mr. Parker was lawfully entitled. Mr. Parker has argued that he was lawfully entitled because of the decision of this Courtin 2000 in Parker. And somewhere in Mr. Turmel’s submissions, I thought I heard an admission that Mr. Parker was only exempted from the prohibition [possession] offence for a period of 12 months. And that is in fact the case, this Court said he would be exempt during the period of suspended invalidity. That’s a 12-month period. Obviously, as Mr. Wilson explained, the prohibition was ultimately struck down in Parker and that period of invalidity extended until the time this Court corrected the deficiencies in Hitzig.
JCT: Okay, the first Parker-Hitzig BENO period admitted.
GORHAM: But at that time, this Court ruled that the MMAR were valid, and therefore, Mr. Parker was governed by those Regulations. At that time, the Minister of Health provided Mr. Parker with a ministerial exemption under S.56 to allow him time to comply with the Regulations and obtain an Authorization to Possess marijuana.
JCT: Notice how he skipped the part that it was 6 weeks after the suspension had expired and that the Terry Parker Day invalidation took effect! As if Parker was protected seamlessly to imply there was no unconstitutional jeopardy!
Just ignore they blew the deadline by 6 weeks and go on.
GORHAM: Those exemptions, that final exemption expired in May of 2004, several months after the decision of this Court in Hitzig.
JCT: So skip the extension of his 2000 exemption granted by Justice Pitt in 2002 and then another S.56 during the 2003 appeals before getting to last one in 2004!
GORHAM: At that time, prior to the expiration of that final exemption in February of 2004, in the Affidavit of Mark
Coulter: Feb 19 2004, Mr. Parker phones Health Canada to indicate that his exemption is going to expire. So it’s a single page memorandum from Valerie Lasher who at the time was manager of the Marijuana Medical Access program. Mr. Parker calls Ms. Lasher and explains his exemption is going to expire.
And Ms. Lasher explains to him what he needs to do. And I think this is indicative of Health Canada’s approach to Mr. Parker, they have been very cooperative, trying to assist Mr. Parker as much possible. And there’s evidence throughout the Appeal Book to that dated back to the original date of the decision in 2000. Mr. Parker was advised what he needs to do but Mr. Parker indicates, in his telephone conversation, got upset and said that he didn’t want to see a doctor.
Ms. Lasher speaking: I tried to tell him that he could apply to have his exemption extended however he cannot find a doctor who will sign his application. Mr. Parker said he refused to get a doctor to sign and claimed that he had been assaulted by three different doctors who had performed
unauthorized tests on him. I understand Mr. Parker has a history with doctors the law that was passed has been found to be constitutionally valid. It does require that the applicants obtain medical authorization, medical approval, for the medical use of marijuana and this Court and other courts, apart from the recent case in Mernagh, have found that the doctor-as-gatekeeper model is constitutional. Even in Beren, Justice Koenigsberg, she found that the doctor-as-gatekeeper model was constitutional…
JCT: Even without doctors participating.
GORHAM:.. when she found, as Mr. Wilson stated, that the eligibility requirements in the MMAR were constitutionally valid. So people who sought to have marihuana for medical purposes were not unreasonably restricted from their ability to obtain those authorizations.
JCT: Restricted, just not unreasonably!
GORHAM: It’s the Crown’s submission that in this case, Mr. Parker has not reasonable efforts to obtain an Authorization To Possess marijuana. And that is why he doesn’t have an Authorization To Possess marijuana. And without an Authorization To Possess marijuana, he is prohibited from possessing it. As simple as that. The arguments Mr. Turmel raised on his behalf with respect to Justice Pitt have been dealt with numerous times by this Court.
JCT: No, once! And wasn’t a criminal appeal of Pitt’s decision, it was a civil appeal of Chapnik’s civil decision setting aside Pitt’s criminal Order as a civil Default Judgment he didn’t give any thought to. Quite the insult.
GORHAM: I won’t go into it too deeply but the decision of Justice Pitt was properly aside.
JCT: Criminal Court decisions can’t be set aside, only overturned upon appeal!
GORHAM: This Court found that it was properly set aside…
JCT: Right, Doherty, Simmons and Goudge found that Pitt’s criminal remedy was properly set aside in civil court! Har har har har. I love hearing this ridiculous decision coming up again and again. Setting aside criminal remedies in civil court is okay! Actually, for Terry Parker, it’s a jurisprudential first!
GORHAM:.. and therefore, Mr. Parker cannot gain any benefit from the decision of Justice Pitt.
JCT: All they have to do is accept that Civil Court can set aside Criminal Court Orders as Default Judgments! Har har har.
GORHAM: Furthermore, even if the Court were to find on a retrospective basis there is some reason why Mr. Parker, by reason of the other decisions, in Beren, in Sfetkopoulos, etcetera, was somehow entitled to possess marijuana on Dec 7 2007, it’s the Crown’s submission that any of those deficiencies that have been cited in prior cases have all been corrected.
JCT: Not when Parker asked Clements for his seized pot. But he’s saying that even if Terry had the right to have it then, while there was a Bad Exemption and No Offence, the Bad Exemption has now been fixed so he shouldn’t get it back now.
GORHAM: The deficiency cited in Sfetkopoulos, the deficiency cited in Beren, they were all corrected…
JCT: Too late to beat Parker’s claim while the Bad Exemption meant No Offence. Ah, but now, he doesn’t have an MMAR exemption and now can’t have it back even if he should have had it back and smoked it years ago. Oops. Too bad the court fight took so long, we finally fixed it so what should have been returned now doesn’t need to be.
GORHAM:.. so there’s no grounds upon which this Court can then find that those Regulations are invalid. I just want to comment on the arguments that you’ve heard this morning with respect to the inability of different appellants to obtain authorizations from their doctors. With respect to Mr. Parker’s appeal, that issue was raised in oral argument before Justice Clements ruled there was not sufficient information before him to make such determination. There was nothing, no evidence on the record apart from Mr. Parker’s anecdotal evidence with respect to his inability to get a doctor to sign his form. And I submit that in fact, there is evidence that he made inadequate efforts to find a doctor to sign his form. And Mr. Justice Clements rejected that argument and I would submit that is the proper thing to do and that this Court should do likewise; reject that argument on the basis of the fact there is simply not enough evidence on the record to support that decision. Barring any questions the Court might have, those are my submissions.
ROSENBERG J.A.: Mr. Turmel, we’ll give you a brief reply.
TURMEL: Thank you. There’s one issue that hasn’t been raised yet and it’s in the Notice of Appeal. In the case of Terry Parker and Mark MacDonald, they both were prevented from tape-recording their appearances pursuant to S.136 of the Courts of Justice Act. I recently was prevented a third time and that’s going to come up too. So, we have the ruling of the Chief Justice Howland of Ontario in 1989 telling us that we don’t need to ask the court’s permission any more to tape record for our notes. Don’t they have Judges’ School? How come these judges don’t know this? We keep coming up to judges and they don’t know.
ROSENBERG J.A.: Okay, Mr. Turmel, that’s enough of that.
TURMEL: Okay. But that’s part of.. that’s raised now. We’re appealing the decision of Justice Gilmore and Justice Clements. Justice Clements did though offer a free transcript. And we’re saying: that’s not good enough. The tape recorder is instantaneous, fresh in the mind, right away, work with it right away. A transcript takes months; even if it is free. So, the issue of the tape recorder has to be settled because more and more of these are going to be coming up here. If there’s some way we can get an official decision on the decision of Justice Clements to grant the transcripts for free instead of the tape recorder, which we say isn’t good enough; and the decision of Justice Gilmore to deny the tape recorder completely. So that issue must be dealt with and I hope you can take a minute and look at that. Three quick points. The Crown said they re-installed the new caps in the MMAR on Dec 3 because they presumed that their new supply policy had fixed that problem. Six years later, the Federal Court in Sfetkopoulos said: Gee, you know, the fact you’re supplying it to other people doesn’t have any bearing on the caps on growers so why would you go put caps on growers when what you’ve reformed, the supply to other non-growers, doesn’t affect them? They might say they went there and presumed the MMAR was fixed and that’s why they put the two Stupid Gimme conditions back. But, the point was, the limits were put back because the MMAR was presumed fixed by the supply and then the decision in Sfetkopoulos ascertained it was not. So they had not covered themselves when they put the flaws back in and that’s why we have exactly the same situation as Hitzig, completely analogous, on all fours.
Another point, second-last, that the Crown made was: this can’t be at permanent risk