TURMEL: Elisha McDermott loses Alberta Court of Appeal

[KingofthePaupers]

http://www.albertacourts.ab.ca/jdb/2003-/ca/criminal/2013/2013abca0038.pdf

Here is the decision of the Alberta Court of Appeal in
Elisha McDermott and Roman Voss's appeal. It's the first
time that a court has actually ruled on BENO and POLCOA! You
can't imagine how that helps. Those words become the main
issue that will go into the Supreme Court of Canada summary
of the case now! Can't keep it out.

In the Court of Appeal of Alberta
Citation: R. v Voss, 2013 ABCA 38
Date: 20130204
Docket: 1003-0316-A
1003-0317-A
Registry: Edmonton

Between:
Her Majesty the Queen
Respondent
- and -
Roman Voss
Elisha McDermott
Appellants

The Court:
The Honourable Mr. Justice Frans Slatter
The Honourable Madam Justice Patricia Rowbotham
The Honourable Mr. Justice Brian O'Ferrall

Memorandum of Judgment
Appeal from the Decision by The Honourable Mr. Justice D.K.
Miller Dated the 30th day of September, 2010
(Docket: 090171596Q1)

Memorandum of Judgment

The Court:
[1] The appellants appeal their convictions by a jury for
possession and production of marihuana. While the appellant
McDermott asserts that she required marihuana for medical
reasons, she did not hold, nor at the time of the offences
had she applied for, a licence under the Marihuana Medical
Access Regulations, SOR 2001-227. She has subsequently
applied for and received a licence under the Regulations.

JCT: Okay, so she says she used it for medical purposes and
then established medical need by qualifying for an
exemption. Hitzig 170 says "establish medical to simply be
exempt." She did that. Seems they've failed to note the
import. Here's where they should have dealt with her Hitzig
170 issue.

The Court: [2] The appellant McDermott admits having been in
possession of marihuana, but the appellants argue that the
provisions of the Controlled Drugs and Substances Act, SC
1996, c. 19 under which they were charged are not in force,
because of certain inadequacies in the Regulations. The
appellants agree that the marihuana in question was all
owned by the appellant McDermott, but since they did not
testify the jury was not told that.

JCT: But will they still uphold the conviction against Roman
Voss anyway?

[3] The appellants advance a number of arguments. The first
they identify as POLCOA - Parliament Only Legislates, Courts
Only Abrogate. The line of argument is that because some
courts found constitutional flaws in the medical marihuana
provisions in the past, Parliament was required to re-enact
the provisions of the Controlled Drugs and Substances Act in
order to bring them back into force. The cases in question
are R. v Parker, (2000) 49 OR (3d) 481, 146 CCC (3d) 193
(CA) and R. v Krieger, 2003 ABCA 85, 18 Alta LR (4th) 227,
327 AR 88, leave refused [2003] 3 SCR viii, in which the
courts declared the medical exemptions for the possession of
marihuana to be unconstitutional, because they were
unstructured and impractical to apply. Both courts suspended
the declaration of invalidity for one year to allow
Parliament to respond. In 2001, the federal government
introduced the Marihuana Medical Access Regulations to
address the concerns raised in Parker and Krieger. In 2003
the Ontario Court of Appeal found some continuing problems
with the Regulations, but rather than striking out the
entire regulatory scheme, that court merely struck down
certain offending provisions: Hitzig v Canada (2003), 231
DLR (4th) 104, 177 CCC (3d) 449 (Ont CA), leave refused
[2004] 1 SCR x.

JCT: The Crown dropping 4,000 charges is pretty good
evidence that merely finding and striking only the flaws and
not the whole MMAR still was made the Bad Exemption enough
for No Offence for JP and 4,000 dropped charges during the
first BENO period, right? But this court has made the
unfounded presumption that because the whole thing wasn't
struck down, then the CDSA prohibitions were not affected!
Except for the 4,000 dropped charges! Har har har har.

[4] The appellants argue that under s. 2(2) of the
Interpretation Act, RSC 1985, c. I-21, an enactment that
expires or "otherwise ceased to have effect" is deemed to
have been repealed. They argue that the effect of the
decisions in Parker and Krieger was to effectively repeal
those portions of the CDSA that created the offence of
possessing marihuana. The passage of the new Regulations was
not effective to revive the provisions of the CDSA that
Parker and Krieger had declared unconstitutional.

JCT: Too bad they didn't mention that that came from
S.43(a), our real ace in the hole.

Parliament having never re-enacted the CDSA, they argue
there is no existing offence of which they can be charged.

JCT: If there was No Offence for JP and the 4,000 dropped
charges while there had been a Bad Exemption, it could not
be revived without Parliament, yes. But since they skipped
naming the section and only used the word "revive" without
its legal basis, it will be ignored.

[5] The POLCOA argument is without merit.

JCT: Ah, so "Only Parliament Legislates" new penal sanctions
is right or wrong; or "Courts Only Abrogate" bad laws is
right or wrong.

The finding of constitutional invalidity because of the
inadequacies in the Regulations did not result in any repeal
of the CDSA.

JCT: Too bad the Crown didn't know that before dropping the
4,000 charges when the Ontario Court of Appeal in JP said it
had.

That statute may have been unenforceable in some provinces
for a short period of time with respect to those with
relevant medical problems, but when the identified
inadequacies were remedied by the new Regulations, any
constitutional problem disappeared. It was not necessary for
Parliament to re-enact the CDSA.

JCT: They got their timeline wrong. It will be fun to point
out. And their jurisdiction too! Har har har. If that
statute was only unenforceable in some provinces, why did
the Crown dismiss them in all provinces? Just because
Federal Law applies across all Canada is no reason not to
accept this court's new ruling that they don't. And the
Crown didn't drop the 4,000 charges against those with
relevant medical problems, JP didn't have any relevant
medical problems and the Ontario Court of Appeal quashed his
charge! Har har har har har har.

As the Ontario Court of Appeal said in R. v J.P. (2003), 67
OR (3d) 321 at paras. 31-3, 177 CCC (3d) 522 (Ont CA):
In making the declaration [of invalidity], the court did not
and could not repeal or otherwise alter the terms of the
statute... There was no need to amend or re-enact s.4 of the
CDSA to address the constitutional problem in Parker".

JCT: That's right, they could only "deem them to be
repealed" until the Government changed the Criminal Code.
And when the Ministry of Justice didn't change the code at
all, sure, they weren't repealed, but the courts were
supposed to deem them to be repealed pursuant to the
Interpretation Act! Right? So the fact the courts struck
them down and deemed them to be repealed and the Ministry
didn't write in the changes means the changes didn't take
place, this court so says. Har har har. And this is the
famous "judges will remember the law is invalid, no need to
change the Criminal Code" ruling! Har har har. So despite
it's having been deemed to be repealed and the Crown
dropping charges while it was deemed to be repealed, this
court says it wasn't actually repealed and deemed to be
repealed isn't repealed! Har har har har har har. Legal
Beagle thinking.

There is no constitutional obstacle to enforcing the CDSA:
R. v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571. The POLCOA
argument is based on an incorrect assessment of the effect
of the previous judicial decisions: R. v MacDonald, 2011
ONCA 820 at paras. 17-8, 108 OR (3d) 550, leave refused
Sept. 27, 2012 SCC #34749; Kubby v Canada (Solicitor
General), 2005 BCCA 640 at paras. 39-40, 47 BCLR (4th) 242,
leave refused [2006] 1 SCR x; R. v LeClair, 2011 NBQB 330,
380 NBR (2d) 133, leave refused 2012 NBCA 51 and Jan. 17,
2013 SCC #34936.

JCT: See how all the Alan Young Judas Goat cases get in our
way. If only Malmo-Levine hadn't given the Crown an easy
win, if only Kubby hadn't given them an easy win. And of
course, Todd LeClair's loss is one of ours standing in the
way. But not much, as long as you can look your judge in the
eye and say Parliament says fixing the MMAR can't revive the
CDSA after the Ontario Court of Appeal ruled the Bad
Exemption in Parker/Hitzig meant No Offence for JP. But the
others are stinkers that had no chance and have not only
muddied the waters but added to the Crown's hand. Curse the
Malmo-Levine and Kubby efforts, we'd have done so much
better without their "help."

[6] The appellants' second argument they call BENO - Bad
Exemption = No Offence. This argument builds on the
decisions in Sfetkopoulos v Canada (Attorney General), 2008
FCA 328, 382 NR 71 and R. v Beren, 2009 BCSC 429, 192 CRR
(2d) 79 which held one specific provision of the Regulations
to be unconstitutional.

JCT: I guess they forgot to note that it was the very same
two flaws as in Hitzig. It'll be fun reminding them at the
top.

The offending provision authorized only one licensed
supplier of medical marihuana in Canada. The Courts in
Sfetkopoulos and Beren ruled this one provision was
unconstitutional, but otherwise upheld the provisions of the
Regulations. The appellants argue, however, that if one
aspect of the regulatory regime is constitutionally
inadequate, the entire regime fails because the Charter
requires a "workable exemption". There being no effective
medical exemption, they argue the entire offence is
unenforceable against them.

JCT: So that was the argument accepted by Ontario's highest
court in JP, that when Hitzig found one or two aspects of
the regulatory regime constitutionally inadequate, the
entire regime failed because the Charter requires a "workable
exemption". There being no effective medical exemption, JP
argued the entire offence was unenforceable against him and
the Ontario Court of Appeal agreed and the Crown dropped
their remaining First BENO period possession charges due to
Parker/Hitzig. But they never dropped any First BENO period
cultivation charges due to Krieger/Hitzig! Busted!

This argument too is without merit,

JCT: Go tell the Ontario Court of Appeal in JP, it's their
argument! Now, what's neat is that a contradiction between
two provincial Courts of Appeal may have an automatic in at
the SCC! I must check. But this is a direct contradiction of
JP since I matched their own words to the words of JP with
the direct contradiction in conclusion! Har har har.

as it depends on a misunderstanding of the limited effect of
the decisions of Sfetkopoulos and Beren.

JCT: Explain the limited effect of Sfetkopoulos and Beren
finding the two MMAR flaws to make a Bad Exemption enough to
make No Offence which was not so limited an effect when the
same two flaws were found by Hitzig! Har har har har har har
har har har.

Severing offending provisions does not affect the validity
of the entire regulatory regime: MacDonald at para. 28; R. v
Parker, 2011 ONCA 819 at paras. 31-2, 283 CCC (3d) 43, leave
refused Sept. 27, 2012 SCC #34756.

JCT: Why would anyone sever an offending provision if it did
not affect the validity of the entire scheme? If the
presence of only those two flaws resulted in the JP
acquittal during the first BENO period, how can severing the
malfunctioning provisions again not affect the validity of
the entire scheme again; and shouldn't the same thing that
happened last time under identical circumstances result in
the same thing again? What to say to a court that could
write something this inane?

[7] The appellants also argue that the CDSA impairs their
constitutional rights because the process for applying for a
medical exemption is bureaucratic, frustrating, complex,
plagued by delay, and inconvenient.

JCT: Too bad that they didn't explain that this was their
motion for a Constitutional Stay on grounds that if the law
isn't still dead, then it's bad enough it should be now
declared dead.

They argue that it is inadequate because of both "supply
defects" and "access defects". Apart altogether from the
lack of any adequate evidentiary support for these complaints,

JCT: Note the word "adequate." There was evidence but they
looked at it with their eyes closed so it could never be
adequate.

and the live question of whether the appellants have
standing to challenge a regime they never tried to use,
these arguments are without merit.

JCT: Okay, the MMAR exemption process is working fine and
dandy.

The Charter is there to protect the fundamental rights of
Canadians. Mere administrative inconvenience, or the wish to
be free from government regulation, does not entitle the
appellants to pick and choose which statutes will be binding
on them. Further, the fact that the appellant McDermott
subsequently obtained a licence shows that the bureaucratic
obstacles were not insurmountable.

JCT: "Not insurmountable," a cheap double-negative. How
surmountable was it when she had to leave the province to
get her exemption? Still always "not insurmountable" wasn't
it? Without realizing everyone else is in the same boat and
can't all leave the province. But "not insurmountable" says
this opinion of justice! Har har har. Besides, maybe the BC
clinics weren't open when she was busted? So for them to
presume that because things have gotten better enough for
her to now qualify means that it was working then, is the
usual lawying logic we have to cope with.

[8] The appellants also argue that it is difficult to find a
physician that will support their personal assertions that
the appellant McDermott is in need of medical marihuana, and
that generally it is burdensome to obtain a medical
exemption. They assert that because few physicians want to
participate in the process, they need only assert medical
need to obtain a constitutional exemption.

JCT: "Assert" is too loose a word, "establish" is what
Elisha and Roman have done. Not merely assert, establish.

This, however, is not the law. In Malmo-Levine the Supreme
Court of Canada confirmed that there is no free standing
Charter right to a lifestyle involving the recreational
consumption of marihuana, nor is there any right to self-medicate.

JCT: That's right, the right to self-medicate was
established in Parker and Krieger and and Malmo-Levine's
stinker claim for the right to recreate only gave them his l
loss to bolster their claim the law's back alive against
medical users too. Ah, cursed Malmo-Levine's backward
efforts. We're winning on the medical front and he brings
his stinking loser on the recreational front to the Crown's
hand. Imagine if Malmo-Levine had chosen to become cop or a
druggist and not around to give us his wasteful help? Ah,
wishful thinking, we're now stuck dealing with the Crown's
Malmo-Levine stinker from now on. Luckily, it was answered
in the factum, ML doesn't way the law is alive, it only says
the government has power to prohibit. Not that it did after
Parker struck it down, that it can prohibit for recreational
use! Not that it can prohibit for medical use. Parker
already won that and Malmo-Levine only allows the Crown to
make people believe that his loss means prohibition is
alive. As used here. Ah, it only we didn't have the Malmo-
Levine loser to deal with every time.

Whatever the difficulties, the appellant McDermott was
ultimately able to find a physician to support her
application.

JCT: And establish her probable medical need at the time
too, right?

The provisions of the CDSA are valid,

JCT: They failed to see whether they were blind or had their
eyes closed. Then again, lots illogic shows they tried to do
something thinking, but weren't very good at it.

and the onus is on the appellants to prove that they are
entitled to an exemption.

JCT: I'd think getting an exemption once she'd found a
doctor would be proof enough she was entitled to an exemption
before she had found a medical doctor too if she has the
medical file to prove it, right?

That they can do by successfully applying for a permit under
the Regulations, or providing a court with sufficient facts
and valid legal arguments to show that they are otherwise
entitled to an exemption.

JCT: They only had to show medical facts to show they were
entitled to an exemption and both did establish medical
need. But it wasn't "sufficient" for the eyes-closed panel.

The appellants have failed to do so.

JCT: I think they succeeded in establishing medical need
that should have entitled them to an exemption with the
only hurdle to overcome being the gatekeeper she couldn't
find.

[9] The appeals from conviction are dismissed.
Appeal heard on January 30, 2013
Memorandum filed at Edmonton, Alberta
this 4th day of February, 2013
Slatter, J.A.
Rowbotham, J.A.
O'Ferrall J.A.

JCT: There's the first draft of the the Memorandum to the
Supreme Court of Canada coming up. Sure, they're so
blinkered at the top that they've always failed to see but
at least all the facts go down in history, and this one's a
beauty. Two legitimate exemptees remain convicted because
the court found they could not sufficiently establish their
medical need despite having done so for Health Canada!