• TURMEL: Heidi Chartrand Reply on Quash Motion

    From John KingofthePaupers Turmel@1:229/2 to All on Wed Dec 5 15:39:30 2018
    From: johnturmel@gmail.com

    JCT: Heidi's medpot dispensary was raided. She filed a
    motion to Quash and the Crown has responded. This is her
    Reply:

    PROVINCIAL COURT OF NOVA SCOTIA
    Between:
    Her Majesty the Queen
    Respondent
    and
    Heidi Chartrand
    Applicant

    APPLICANT'S REPLY ON QUASH MOTION

    1. The basis of the motion to quash the S.5(2) Possession
    for the Purpose of Trafficking charge is that while the
    s.4(1) Possession and s.7(1) Production offences have no
    force and effect, that therefore Possession for the Purpose
    of Trafficking of a substance that is not prohibited under
    the CDSA should not be prohibited either. The Crown notes
    that S.5(2) had never yet been declared of no force.

    2. On July 31 2000 Ontario Court of Appeal in R. v. Parker
    struck down the Possession prohibition in S.4(1) of the CDSA
    absent a valid medical exemption.

    3. On July 30 2001, the Marijuana Medical Access Regulations
    were enacted.

    4. On Mar 18 2003, Alberta Court of Appeal in R. v. Krieger
    struck down the Production prohibition in S.7(1) of the CDSA
    absent a valid medical exemption.

    5. On Oct 7 2003, Ontario Court of Appeal in Hitzig v.
    Canada declared only two aspects of the MMAR medical
    exemption flawed.
    [170] In R. v. Parker. supra, this court declared
    the prohibition invalid as of July 31. 2001 if by
    that date the Government had not enacted a
    constitutionally sound medical exemption. Our
    decision in this case confirms that it did not do
    so. Hence the marihuana prohibition in s. 4 has
    been of no force or effect since July 31. 2001.

    6. The Crown cites the many courts that "the government had
    not enacted a constitutionally sound medical exemption...
    hence the marijuana prohibition in s.4 has been of no force
    since July 31 2001" does not mean that a Bad Exemption means
    No Offence, BENO, and notes how many courts have rejected
    that Bad Exemption hence No Offence would mean ""the
    government had not enacted a constitutionally sound medical
    exemption... hence the marijuana prohibition in s.4 has been
    of no force since July 31 2001."

    7. On the same day, R. v. J.P. quashed the possession charge
    because Hitzig had found the exemption to have been
    defective when the accused was charged. On Dec 8 2003, the
    Crown stayed the 4,000 remaining Possession charges laid
    during the time the exemption was flawed but no Production
    charges.

    8. The Hitzig Court also ruled that their striking down the
    flaws in the MMAR revived the prohibitions in the CDSA:
    there will immediately be a constitutionally
    valid exemption in effect and the marihuana prohibition
    in s. 4 of the CDSA will immediately be constitutionally
    valid and of full force and effect.

    9. Yet the Interpretation Act states:
    For the purposes of this Act, an enactment that S.5(3):
    has been replaced is repealed and an enactment that has
    expired, lapsed or otherwise ceased to have effect is
    deemed to have been repealed.>
    S.32(a): Where an enactment is repealed in whole or in
    part, the repeal does not (a) revive any enactment or
    anything not in force or existing at the time when the
    repeal takes effect.

    POLCOA

    10. Parliament Only Legislates, Courts Only Abrogate is the
    argument to quash raised herein. The Ontario Court of Appeal
    had no power to revive the CDSA prohibitions that were not
    in force at the time.

    11. In R v. Nielson [2004] when asked where the Court of
    Appeal got the power to revive a law that had been of no
    force for 2 years, the Crown argued "they wouldn't have if
    they couldn't have so they can."

    12. So the Possession and Production prohibitions were never
    re-enacted by Parliament after they were struck down by the
    Parker and Krieger orders taking effect upon the Hitzig
    order finding the exemption flawed.

    INTERPRETATION ACT OR HITZIG ORDER

    13. The Crown notes the many courts who were asked to quash
    the charges on the grounds the prohibitions remain of no
    force and unknown to law until re-enacted by Parliament when
    Courts may not revive dead laws and who chose to obey the
    Hitzig Order and disbey Parliament's Interpretation Act. Not
    a laudable precedent.

    RESURRECTING BENO

    14. The Crown says the Quash motion is resurrecting the BENO
    argument but the ACMPR has not yet been declared flawed as
    was the MMAR in Hitzig, Sfetkopoulos, Beren, Mernagh and the
    MMPR in Allard have been and is not raised herein.
    Challenging the ACMPR awaits a constitutional challenge
    should the S.601 quash motion fail.

    15. The Crown keeps repeating that the whole regime was not
    toppled, only aspects were found to be faulty. But there
    were only two aspects making the MMAR unworkable in Hitzig,
    the same two in Sfetkopoulos and Beren, one, non-
    participation by doctors in Mernagh, and one, prohibition of
    best use, in Smith. There is no reason to show the whole
    regime is flawed as found in Allard with respect to the
    MMPR. That it isn't working right is all that needs to be
    shown. The Crown hints the prohibition cannot depend on just
    one aspect of error in Smith. But only two aspects of
    failure in Hitzig resulted in the prohibitions being during
    the 2 years of that time.

    MOST OTHER COURTS DID NOT FOLLOW PARKER/KRIEGER

    16. Repeatedly the Crown cites other courts that ruled the
    exemption faulty but did not follow Parker and Krieger to
    declare the prohibitions invalid while the exemption was
    invalid, BENO, mainly because the courts in Hitzig,
    Sfetkopoulos, Beren and Smith were not asked to. Only in
    Mernagh was a declaration striking Possession and Production
    prohibitions of the CDSA sought and granted upon the finding
    by Ontario Superior Court Justice Taliano that the MMAR was
    again faulty. That finding was overturned because 90% of all
    refusing doctors could have had sound medical reasons since
    the medical patients were not asked for the non-medical
    reasons their doctors had used to refuse.

    17. Applicant submits that prohibiting Trafficking in an era
    when Possession and Production are not prohibited brings the
    administration of justice into disrepute.

    Dated on Dec 5 2018.
    ____________________________
    For the Applicant

    To the Respondent:
    Michael Taylor, QC
    Public Prosecution Service of Canada

    JCT: The Crown office was only 20 minutes away and it was
    easy to serve the Crown. But Kentville provincial law courts
    was a 3-hour round trip so Heidi called to ask if it would
    be possible to fax it in. Judge Ronda Van Der Hoek okayed it
    and saved her the trip. She even accommodated Heidi's
    request for afternoon times due to her insomnia and travel
    from the city. Hasn't had a time earlier than 11am yet!

    So now the motion is ready for hearing and judgment. I
    wasn't going to waste much time countering all the Crown
    points since it was a list of all the courts who did not
    grant the other Quash Motions.

    It's nice to have an argument that says we're still looking
    for a judge to obey Parliament!! Har har har har har har.

    --- SoupGate-Win32 v1.05
    * Origin: www.darkrealms.ca (1:229/2)
  • From John KingofthePaupers Turmel@1:229/2 to All on Wed Dec 5 15:38:14 2018
    From: johnturmel@gmail.com

    TURMEL: Heidi Chartrand Reply on Quash Motion

    JCT: Heidi's medpot dispensary was raided. She filed a
    motion to Quash and the Crown has responded. This is her
    Reply:

    PROVINCIAL COURT OF NOVA SCOTIA
    Between:
    Her Majesty the Queen
    Respondent
    and
    Heidi Chartrand
    Applicant

    APPLICANT'S REPLY ON QUASH MOTION

    1. The basis of the motion to quash the S.5(2) Possession
    for the Purpose of Trafficking charge is that while the
    s.4(1) Possession and s.7(1) Production offences have no
    force and effect, that therefore Possession for the Purpose
    of Trafficking of a substance that is not prohibited under
    the CDSA should not be prohibited either. The Crown notes
    that S.5(2) had never yet been declared of no force.

    2. On July 31 2000 Ontario Court of Appeal in R. v. Parker
    struck down the Possession prohibition in S.4(1) of the CDSA
    absent a valid medical exemption.

    3. On July 30 2001, the Marijuana Medical Access Regulations
    were enacted.

    4. On Mar 18 2003, Alberta Court of Appeal in R. v. Krieger
    struck down the Production prohibition in S.7(1) of the CDSA
    absent a valid medical exemption.

    5. On Oct 7 2003, Ontario Court of Appeal in Hitzig v.
    Canada declared only two aspects of the MMAR medical
    exemption flawed.
    [170] In R. v. Parker. supra, this court declared
    the prohibition invalid as of July 31. 2001 if by
    that date the Government had not enacted a
    constitutionally sound medical exemption. Our
    decision in this case confirms that it did not do
    so. Hence the marihuana prohibition in s. 4 has
    been of no force or effect since July 31. 2001.

    6. The Crown cites the many courts that "the government had
    not enacted a constitutionally sound medical exemption...
    hence the marijuana prohibition in s.4 has been of no force
    since July 31 2001" does not mean that a Bad Exemption means
    No Offence, BENO, and notes how many courts have rejected
    that Bad Exemption hence No Offence would mean ""the
    government had not enacted a constitutionally sound medical
    exemption... hence the marijuana prohibition in s.4 has been
    of no force since July 31 2001."

    7. On the same day, R. v. J.P. quashed the possession charge
    because Hitzig had found the exemption to have been
    defective when the accused was charged. On Dec 8 2003, the
    Crown stayed the 4,000 remaining Possession charges laid
    during the time the exemption was flawed but no Production
    charges.

    8. The Hitzig Court also ruled that their striking down the
    flaws in the MMAR revived the prohibitions in the CDSA:
    there will immediately be a constitutionally
    valid exemption in effect and the marihuana prohibition
    in s. 4 of the CDSA will immediately be constitutionally
    valid and of full force and effect.

    9. Yet the Interpretation Act states:
    For the purposes of this Act, an enactment that S.5(3):
    has been replaced is repealed and an enactment that has
    expired, lapsed or otherwise ceased to have effect is
    deemed to have been repealed.>
    S.32(a): Where an enactment is repealed in whole or in
    part, the repeal does not (a) revive any enactment or
    anything not in force or existing at the time when the
    repeal takes effect.

    POLCOA

    10. Parliament Only Legislates, Courts Only Abrogate is the
    argument to quash raised herein. The Ontario Court of Appeal
    had no power to revive the CDSA prohibitions that were not
    in force at the time.

    11. In R v. Nielson [2004] when asked where the Court of
    Appeal got the power to revive a law that had been of no
    force for 2 years, the Crown argued "they wouldn't have if
    they couldn't have so they can."

    12. So the Possession and Production prohibitions were never
    re-enacted by Parliament after they were struck down by the
    Parker and Krieger orders taking effect upon the Hitzig
    order finding the exemption flawed.

    INTERPRETATION ACT OR HITZIG ORDER

    13. The Crown notes the many courts who were asked to quash
    the charges on the grounds the prohibitions remain of no
    force and unknown to law until re-enacted by Parliament when
    Courts may not revive dead laws and who chose to obey the
    Hitzig Order and disbey Parliament's Interpretation Act. Not
    a laudable precedent.

    RESURRECTING BENO

    14. The Crown says the Quash motion is resurrecting the BENO
    argument but the ACMPR has not yet been declared flawed as
    was the MMAR in Hitzig, Sfetkopoulos, Beren, Mernagh and the
    MMPR in Allard have been and is not raised herein.
    Challenging the ACMPR awaits a constitutional challenge
    should the S.601 quash motion fail.

    15. The Crown keeps repeating that the whole regime was not
    toppled, only aspects were found to be faulty. But there
    were only two aspects making the MMAR unworkable in Hitzig,
    the same two in Sfetkopoulos and Beren, one, non-
    participation by doctors in Mernagh, and one, prohibition of
    best use, in Smith. There is no reason to show the whole
    regime is flawed as found in Allard with respect to the
    MMPR. That it isn't working right is all that needs to be
    shown. The Crown hints the prohibition cannot depend on just
    one aspect of error in Smith. But only two aspects of
    failure in Hitzig resulted in the prohibitions being during
    the 2 years of that time.

    MOST OTHER COURTS DID NOT FOLLOW PARKER/KRIEGER

    16. Repeatedly the Crown cites other courts that ruled the
    exemption faulty but did not follow Parker and Krieger to
    declare the prohibitions invalid while the exemption was
    invalid, BENO, mainly because the courts in Hitzig,
    Sfetkopoulos, Beren and Smith were not asked to. Only in
    Mernagh was a declaration striking Possession and Production
    prohibitions of the CDSA sought and granted upon the finding
    by Ontario Superior Court Justice Taliano that the MMAR was
    again faulty. That finding was overturned because 90% of all
    refusing doctors could have had sound medical reasons since
    the medical patients were not asked for the non-medical
    reasons their doctors had used to refuse.

    17. Applicant submits that prohibiting Trafficking in an era
    when Possession and Production are not prohibited brings the
    administration of justice into disrepute.

    Dated on Dec 5 2018.
    ____________________________
    For the Applicant

    To the Respondent:
    Michael Taylor, QC
    Public Prosecution Service of Canada

    JCT: The Crown office was only 20 minutes away and it was
    easy to serve the Crown. But Kentville provincial law courts
    was a 3-hour round trip so Heidi called to ask if it would
    be possible to fax it in. Judge Ronda Van Der Hoek okayed it
    and saved her the trip. She even accommodated Heidi's
    request for afternoon times due to her insomnia and travel
    from the city. Hasn't had a time earlier than 11am yet!

    So now the motion is ready for hearing and judgment. I
    wasn't going to waste much time countering all the Crown
    points since it was a list of all the courts who did not
    grant the other Quash Motions.

    It's nice to have an argument that says we're still looking
    for a judge to obey Parliament!! Har har har har har har.

    --- SoupGate-Win32 v1.05
    * Origin: www.darkrealms.ca (1:229/2)