TURMEL: Parker's Crown wants marijuana claim in civil court
KingofthePaupers
have Parker's appeal heard in Civil Appeal Court. He's the Crown
who thinks we're wasting our time arguing that the Interpretation
Act says struck-down laws are to be deemed to repealed POLCOA
when the Ontario Court of Appeal has now said they are to be
deemed only absent until fixed by the courts:
Court of Appeal
To Huguette Thomson, Registrar
Nov 24 2009
Re: Terrance Parker v. Her Majesty The Queen
I am writing with regard to the Notice of Appeal filed by Mr.
Parker, with respect to the decision of Justice Tulloch released
Sep 30 2009. I am writing to confirm which rules of the court
should apply.
By way of backgrounds, this proceeding originated with an
application by Mr. Parker under section 24 of the CDSA for the
return of a controlled substance seized while in the possession
of Canada Post, namely marijuana. Mr. Parker asserted lawful
ownership of the controlled substance. His application was denied
when Justice Clements determined that Mr. Parker is not lawfully
entitled to possess the substance. Mr. Parker's appeal to the
Superior Court was denied by Justice Tulloch in his decision of
Sep 30 2009, which is the subject of this appeal.
I am advised by the Court's registry staff that the Notice of
Appeal was accepted for filing as a "non-inmate in-person
appeal." This implies the Court intends to process this appeal
under the Criminal Appeal Rules, SI/93-169. I suggest this appeal
is not properly characterized as a "criminal proceeding" because
at no time in this proceeding has Mr. Parker been charged with
any offence arising from his ownership of the controlled
substance. Under the circumstances, this proceeding is more
properly characterized as a "civil proceeding" for which the
Rules of Civil Procedure should apply, including the rules
relating to appeals before this Court.
Your immediate attention to this issue would be greatly
appreciated, so that the parties can move forward with the
appropriate procedural steps to be taken in the appeal.
Yours truly,
James Gorham
Counsel, Regular Law Division
JCT: So why did they put Section 24 in the Criminal Code instead
of the Civil Code. Pharmacists who want their stolen drugs back
now go to criminal court holding the pills in evidence, not civil
court that is not holding the pills. So Terry's going to filing
this response later today:
Court File No. C51187
COURT OF APPEAL FOR ONTARIO
Between:
Terrance Parker
Appellant-Accused
and
Her Majesty the Queen
Respondent/Plaintiff
November 30 2009
Huguette Thomson
Registrar
130 Queen St. W. Toronto M5H 2N5
In his letter dated Nov 24 2009, Crown Attorney James Gorham
suggests my non-inmate in-person appeal of the decision of
Justice Tulloch in the appeal of the ruling of Justice Clements
under Section 24 of the Controlled Drugs and Substances Act in
the Criminal Code for the return of a controlled substance seized
while in the possession of Canada Post, marijuana, should be
dealt with as a civil proceeding, rather than the criminal
proceeding we have instituted.
With no precedents for appealing a S.24 ruling yet, Justice
Tulloch ruled that the Criminal Rules were to be followed and the
appeal proceeded under that ruling.
The only real difference is that there is no cost under the
Criminal Rules while there are costs and fees Appellant cannot
afford to pay under the Civil Rules and the Crown has in the past
prepared the Appeal Book for non-inmate self-represented
appellants under Criminal Rules which the Crown does not prepare
under civil appeals.
Does Civil Appeal Court even have jurisdiction over the
controlled substance in the possession of the police? Would
Justice Tulloch have had jurisdiction had he sat as a civil
Justice? Or was Justice Tulloch right in ordering Criminal Appeal
Rules be followed?
While I'm sure a Criminal Court of Appeal does have jurisdiction
to hand out a controlled substance under CDSA S.24 in the
Criminal Code since any lower criminal court justice has the
power under S.24 of the CDSA, I'm not sure a Civil Court of
Appeal would have that same power and wonder why there could be
any reason to switch from a criminal appeal court with "for-sure"
jurisdiction to civil appeal court with "maybe" jurisdiction.
The Crown may cross-appeal on Justice Tulloch's decision but any
decision to overrule Justice Tulloch and slip this appeal into
the civil court after losing the argument below must be made by
three judges, not the court Registrar.
_________________________________
Terrance Parker
JCT: I guess he forgot the whole mess when we tried to file the
appeal in Criminal Court and the Registrar wouldn't let us and we
had to get the judge's permission to file it as criminal even
though there were no set rules for such appeals! I don't think he
really fought it at the time, he may not have realized how he'd
want it now.
Other than to punish Terry, I wonder if they see any other
advantage to going civil?