TURMEL: Crown Response to McCrady MedPot Conviction appeal at Supreme Court

[KingofthePaupers]

File Number: #34751
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
BETWEEN:
Robert Christopher McCrady
Appellant in appeal
and
Her Majesty The Queen
Respondent in appeal

RESPONDENT'S MEMORANDUM OF ARGUMENT

PART I - STATEMENT OF FACTS

A. Overview

1. The Applicant was convicted in the Ontario Court of Justice
of the indictable offence of possession of marijuana contrary
to s.4(1) of the CDSA. He appealed to the Court of Appeal for
Ontario arguing that marijuana is no longer a controlled
substance, or should no longer be a controlled substance. The
appeal was dismissed.

JCT: Notice how they keep forgetting his claim to Hitzig 170
being exempt by establishment of medical need in getting his
exemption application signed before his bust. All he was doing
was obeying his doctor's prescription before Health Canada
could catch up. But their continued ducking of the Hitzig 170
argument sure does imply they can't handle it.

(The offence is indictable because the trial judge acquitted
the Applicant of the indictable offence of possession of
marijuana for the purpose of trafficking but convicted him on
the lesser offence, included offence, of simple possession.)

JCT: I guess they had no evidence for the major charge they
saddled him with and it's the reason he got straight into the
Court of Appeal. Otherwise, he's have had to go through
Superior Court first had been charged by way of summary
conviction.

2. The Applicant now seeks leave to appeal to this Court. He
asserts that the offences in question have been "deemed
repealed" or otherwise invalidated by certain lower court
decisions and/or through the operation of s.2(2) of the
Interpretation Act. His arguments are without factual or legal
foundation, and do not raise issues of public or national
importance that would justify this Court's consideration.

Facts

3. The facts as summarized by the Court of Appeal are:
"[5] In October 2008, McCrady submitted an application to
possess and grow marihuana pursuant to the MMAR. The
application was signed by his medical doctor. Health Canada
processed the application six months later, in April 2009. On
February 20, 2009, before the application was processed,
McCrady was charged with possession and possession for the
purpose of trafficking contrary to ss. 4 and 5 of the CDSA.
The amount was 106 grams, or just under four ounces. On July
19, 2010, he was acquitted of possession for the purpose and
convicted of simple possession. McCrady was sentenced to 12
months of probation and a $250 fine."

4. The Applicant appealed. He argued (as did the appellants in
six similar appeals which were heard at the same time, all of
whom seek leave to appeal to this Court) that the combined
effect of a number of judicial decisions across Canada was the
repeal or invalidation of various cannabis offences in the
CDSA. The Court of Appeal dismissed the appeal and the others,
giving detailed reasons that concluded as follow:
"[27] The appellants McCrady and Hearn, submit that the
charges against them should be stayed as marihuana no longer
should be a controlled substance. The record does not support
this position. The appellants submit a list of 25 complaints
related to the MMAR. The complaints are not grounded in
evidence in the record placed before the trial courts or this
court...
[29] The appellants have continuing concerns about the MMAR
regime. In their view, the regime is inadequate and fatally
flawed. But their views about the regime cannot change the
fact that since October 7, 2003, with the exception of the
2011 decision Mernagh, no court has held that the marihuana
prohibitions are invalid. Since Parker (2000) and Krieger,
courts have dealt with defects in the MMAR by striking down
the provisions or reading out offending parts of the
regulations. The orders made in those cases including Hitzig,
Sfetkopoulos, and Beren, have left intact the prohibitions in
the CDSA. As we have pointed out, the Parker (2000) state of
invalidity, as regards the possession offence, ended on
October 7, 2003. The Krieger order of invalidity, as regards
the cultivation offence, never took effect because of
successive orders of the trial court and the Alberta Court of
Appeal. The order made by Taliano J. in Mernagh holding the
possession and production marihuana offences of the CDSA and
the MMAR to be of no force and effect cannot assist the
appellants at this point because that order has been stayed.
[30] Put simply, it is not open to these appellants or others
who are dissatisfied with the MMAR regime to simply refuse to
obey the law and take the position that the CDSA offences are
not in effect. If they wish to now challenge the validity of
any part of the CDSA or the MMAR they can do so as part of the
defence to their charges or by an application in the Superior
Court of Justice. However, that defence and any application
must be based upon proper material that clearly demonstrates
the constitutional infirmity of the MMAR and the link between
the CDSA offences and the alleged infirmity in the MMAR.
[31] The appellants have expressed a shared sense of
frustration with the MMAR and the medical profession. However,
the issues raised are based on a fundamental misreading of the
state of the law. The marihuana offences set out in the CDSA
remain in full force. The appeals are dismissed.

5. The Court of Appeal also found that, on the facts, "the
period of retroactive invalidity that the appellants argue for
would not apply to any of them.

JCT: Because the Court of Appeal got the effect of the
suspension of the Beren decision wrong. Har har har har. I
think I'm going to include the har har hars in the reply.

6. The Applicant now seeks leave to appeal to this Court.

PART II - ISSUES

7. The Applicant asserts:
(a) that the decisions of the Court of Appeal for Ontario in
R. v. Parker (2000), Hitzig, and R. v. J.P. in combination
with s.2(2) of the Interpretation Act have caused some or all
of the cannabis offences in the CDSA to be deemed repealed;
(b) that the Alberta decisions in R. v. Krieger in combination
with s.2(2) of the Interpretation Act have caused the offence
of production of marihuana in the CDSA to be deemed repealed;
(c) that the Federal Court decisions in Sfetkopoulos, the B.C.
Supreme Court decision in R. v. Beren, and/or the Ontario
Superior Court of Justice decision in R. v. Mernagh, in
combination with the Ontario Court of Appeal decision in J.P.
have invalidated some or all of the cannabis offences in the
CDSA retroactive to Dec 3 2003; AND
(d) that all convictions entered during these periods or
purported repeal or invalidity should be expunged.

8. These arguments are all without factual or legal
foundation, and do not raise issues of public or national
importance that would justify this Court's consideration.

PART III - ARGUMENT

9. The public interest does not require this Court's
intervention in this matter, as there are no issues of
national or public importance that would justify this Court's
consideration.

10. The Applicant's assertion that the cannabis offences were
repealed by the decisions in Hitzig, J.P. Sfetkopoulos, Beren
and/or Krieger is fundamentally misconceived.

JCT: McCrady is facing simple possession and is relying only
on Parker/Beren, not Hitzig, and J.P. not Krieger. But they
sure did complicated it up. Or is that how it looks to them?
Har har har.

Courts can read legislation down, read elements into it, or
declare it to be of no force and effect, but they cannot
repeal it. Only Parliament has that authority.

JCT: I guess they don't read the English in the S.2(2)
Interpretation Act very well that says Courts can strike down
bad laws too. I guess their brains turn some parts on and off
depending on who's paying them. Imagine them wrongly telling
us only Parliament has the authority to strike down a law
while we're rightly telling the only Parliament has the
authority to strike up a law.

11. The determinations that the offences have not been
repealed and that they remain in full force and effect were
straightforward applications of existing law which were
thoroughly dealt with by the court below.

JCT: Ignoring the first retroactive invalid period they
admitted already...

12. Finally, this Court has already refused leave to appeal
twice to applicants who have challenged the validity of the
existing cannabis offences.
(R. v. Turmel (2007) and R. v. Martin (2010)

13. Because the offences remain in force

JCT: Remain in force after not being in force. Har har har.

there is no basis on which to expunge the criminal records of
any persons who have been convicted of any of the offences.

JCT: But we know they admit the laws were not in force between
2001 and 2003 and have not answer for why they won't expunge
those admittedly bogus convictions.

PART IV - COSTS

21. The Applicant does not seek costs. In any event, this is
not an appropriate case for an award of costs.

PART V - NATURE OF ORDER SOUGHT

22. The Respondent requests that the application for leave to
appeal be dismissed without costs.

Dated at Toronto, May 3 2003.

Kevin Wilson,
Counsel for the Respondent

JCT: The docket shows that the Response was filed on May 5
http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=34751
so I have until May 15 to file our Replies.

[Canadian]

On May 12, 1:59 pm, KingofthePaupers <johntur...@yahoo.com> wrote:
> File Number: #34751

Say, what was it like to be ridiculed by some of Canada's great
capitalists on that CBC TV show?

I hear that you sued!