TURMEL: Spottiswood Appeal Factum for return of auto

[KingofthePaupers]

JCT: When Mike showed up with his Factum ready to asking
that the Crown get their Factum and the Appeal Book done
quickly, Madam Justice Hoy ordered the Crown to do so and
booked the appeal for Oct 23, 2012.

So here's his Factum for the return of his 1999 Honda that
was seized as he was moving his marijuana plants.

Court File No. 55042
COURT OF APPEAL FOR ONTARIO

IN THE MATTER of an Application by the Accused for the
return of Applicant's seized 1999 Honda automobile.

Between:
Michael K. Spottiswood
Appellant/Accused
and

Her Majesty the Queen
Respondent/Plaintiff

APPELLANT'S FACTUM

OVERVIEW

1. Appellant's 1999 Honda was seized when he was charged
with growing medical marijuana. Appellant then received a
Health Canada MMAR exemption to use marijuana for medical
purposes and sought the return of his automobile under S.490
on the humanitarian grounds or that detention of the auto is
a violation of Appellant's Charter Right to Life. Both
Ontario Court Justice Pockele and Superior Court Justice
Morissette bemoaned no jurisdiction to prevent the damage to
Appellant's health by seizure of his only mobility.
Appellant submits one of the Courts has jurisdiction.

PART I - STATEMENT OF FACTS

2. On Jan 18 2011, Appellant was charged with growing a few
hundred plants and possessing 556 grams of marijuana for the
purpose of trafficking and his auto seized for forfeiture.

3. Appellant then received a Health Canada MMAR exemption to
use marijuana for medical purposes establishing medical need
after years of trying.

4. On Aug 17 2011, an application for the return of the auto
under S.490 on the humanitarian grounds or that detention of
the auto is a violation of Appellant's Charter Right to
Life was heard by Ontario Court Justice Pockele who bemoaned
not having the jurisdiction to return Appellant's only means
of transportation. He also opined that the establishment of
Appellant's medical need seemed a valid common law defence.
Seems Judge Pockele expects the Applicant to be found not
guilty and the motor vehicle to be returned.

5. On Dec 9 2011, the application was heard by Ontario
Superior Court Madam Justice Morissette who also bemoaned
not having the jurisdiction to release the Honda.

6. Justice Morissette wrote:
[7] In R. v. Flynn, the court found that an application
under S.490 should only be made to a judge of Superior Court
where that court has ordered the detention or retention of
the thing seized. In any other case, the application should
be made to a justice of the peace or a Provincial Court
judge.
[8] The applicant in this case has sought the return of his
motor vehicle before J. Pockele of the Ontario Court of
Justice who heard the applicant's request to return the
motor vehicle to him and rejected it, although reluctantly.
[9] So now the applicant is asking this court to exercise
its inherent jurisdiction to release the motor vehicle on
hardship grounds.

7. Unfortunately, the judge failed to note that Judge
Pockele ruled he had no jurisdiction to return the auto. Had
he ruled on the merits, Applicant would have appealed, not
sought a remedy under the Superior Court's inherent
jurisdiction.

8. The judge further wrote:
[10] The inherent jurisdiction of a Superior Court finds its
source in common law and in the nature of the court as a
superior court of law. Generally, the inherent jurisdiction
of a Superior Court allows the court the power to maintain
its authority to prevent its process from being obstructed
and abused, however, it does have limits. It cannot
contravene any statutory provisions.

9. Applicant submits the forfeiture of someone's wheelchair
or other mobility device is an abuse of the process and that
the court has the power to strike down such statutory
provisions that violate Charter Rights.

10. Justice Morissette explains:
Hardship:
[16] If I am wrong about my lack of jurisdiction, and
therefore can hear this application, then I may consider
hardship under s.490(8) to allow an application under
s.490(7) prior to expiry of the period of detention. This
section has been interpreted to mean that a finding of
hardship allows an application to be brought under s.490(7)
before the expiry of the time period for detention. For
example in R. v. Alchin, 2007 ONCJ 589, [2007] O.J. No.
4930, the court found that even if hardship is established
under s.490(8) this only provides the defendant with the
opportunity to make an application under s.490(9) before the
expiry of the time period of detention; it does not provide
the defendant with grounds for the release of the thing...
[21] The Crown submits that the motor vehicle is required
for the purpose of a forfeiture hearing and therefore, there
is no jurisdiction to allow its return.
[22] If the Crown's argument stands, any items seized for
the eventual possibility of forfeiture hearing could never
be released for hardship reasons. Then why have a hardship
provision in the Code if one cannot access it?
[23] In my view, even if satisfied that the vehicle is
required for an eventual possible forfeiture hearing, the
court ought to balance the respective issues interests of
each party.
[24] The applicant submits that his requirement for the
motor vehicle is due to his disability and inability to be
mobile without it. That, in my view, is grounds for
hardship.
[25] Accordingly, when balancing the interests of the seized
item, between the purpose for the detention and the hardship
the detention creates, in my view, the value to the Crown of
this 1999 Honda is outweighed by the value to the applicant
in gaining his mobility.
[26] In this case, had I had jurisdiction, I would have
released the 1999 Honda to the applicant, notwithstanding
the possible future forfeiture proceeding, pending the
outcome of the trial.
Disposition:
[27] However, for the reasons set out above, I find that I
do not have jurisdiction, inherent or otherwise, to grant
the application.
Justice J.N. Morissette

11. Appellant submits either Provincial or Superior Court
had jurisdiction to provide the relief sought.

PART II - ISSUE

12. A) May a forfeiture Order that would be a violation of
the Appellant's Right to Life after the proceedings are
complete be prohibited by the Court before the violation
takes place?

13. B) Why have a hardship provision if any items seized for
the eventual possibility of forfeiture hearing could never
be released for hardship reasons?

PART III - ARGUMENTS

A) May forfeiture be prohibited on Charter Right?

14. The Order of Forfeiture is only potential, based on the
Accused's alleged intent to traffic. The violation of the
Charter Right to life is not potential, it is a clear and
present danger.

15. Justice Pockele said Accused had a valid defence, the
marijuana was for no one's purpose but the Appellant's, who
now has an exemption to "establish medical to simply be
exempt." (Hitzig Paragraph 170) Justice demands there be a
speedier way in cases where the Right to Life is raised. The
eventual return of Appellant's motor vehicle won't do much
good if its continued detention causes Appellant to end up
needing a wheelchair or destroy its value.

16. The Crown raised the Buller and Nikitczuk precedents
which showed only evidence of financial hardship, not of
health hardship as in this case where the violation of the
Right to Life and Security is evident much as it would be in
the case of the forfeiture of a wheelchair.

17. Appellant's current exemption allows him to possess 5
pounds of marijuana, more than four times the amount seized
and presumed to be for sale. The insufficiency of the amount
should negate any presumption of trafficking.

B) Why hardship provision if no access?

18. The impairment of Appellant's mobility seems to be the
only issue left in this case. Appellant submits that the
Restricted Interpretation of Criminal Statutes should allow
the court to restrict the scope of the "other proceedings"
definition in favor of the Accused to return the seized auto
in relief of the ongoing Charter Right violation.

19. The existence of a hardship provision must imply that
such provision may be accessed. A provision allowing Accused
to apply but not to obtain remedy cannot be the intent of
the legislation.

ORDER SOUGHT

Appellant seeks an Order for the return of his seized 1999
Honda motor vehicle.

Dated at Toronto on Friday Sep 14 2012.
Michael K. Spottiswood, Appellant,

JCT: I can't imagine some judge wouldn't have the power to
stop the Crown from taking someone's wheelchair and so I
can't imagine one having the to return Mike's car.
Now for Oct 23!