File Number:_____ IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: John C. Turmel Applicant Appellant in appeal and Her Majesty The Queen Respondent Respondent in appeal ------------------------------------------------- NOTICE OF APPLICATION FOR LEAVE TO APPEAL JOHN C. TURMEL, APPLICANT (Pursuant to Section 59 of the Supreme Court Act) ------------------------------------------------- TAKE NOTICE that Applicant John C. Turmel hereby applies for leave to appeal to the Court in forma pauperis pursuant to Section 59(4) of the Supreme Court Act from the judgment of Justices Doherty, Goudge and Simmons of the Court of Appeal for Ontario #39740 made Oct 7 2003 and for 1) an Order overturning the court's opinion which has been deemed by lower courts to resurrect the prohibition on cannabis in s.4(1) of the CDSA and declaring that the prohibition on marijuana remains repealed since Aug. 1 2002, Terry Parker Day; 2) Order of Mandamus compelling the Attorney General for Canada to withdraw all current s.4(1) prosecutions. 3) Order of Mandamus compelling the Attorney General to release all prisoners and expunge all convictions registered under s.4(1) of the CDSA since: a) the Charter was enacted; or b) Aug 1 2000 when the section was deemed unconstitutional; or c) Aug 1 2001 when the section was deemed repealed. 4) AND FOR any Order abridging the time for service, filing, or hearing of the application, any Order amending any defect as to form or content of the motion or any Order deemed just. AND FURTHER TAKE NOTICE that this application for leave is made on the grounds that the judiciary do not have the constitutional power to resurrect penal statutes that have been repealed. Dated at Brantford Ontario on Oct 6 2004 Applicant: John C. Turmel, B. Eng. 8-37 Colborne E. Brantford, N3T 2G3 Tel/Fax: 519-753-0645 Email: turmel@ncf.ca ORIGINAL TO: THE REGISTRAR AND TO: Croft Michaelson: cmichael@justice.gc.ca Christopher Leafloor: christopher.leafloor@justice.gc.ca Vanita Goela: vgoela@justice.gc.ca Department of Justice, Ontario Regional Office 130 King St. W. #3400 Toronto, ON, M5X 1K6 Tel: 416-952-7261, 973-0392, 973-9638 Fax: 416-952-0298 NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in response to this application for leave to appeal within 30 days after service of the application. If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration pursuant to section 43 of the Supreme Court Act. ===== TABLE OF CONTENTS ----------------- Notice of Application for leave to appeal.................(1) Affidavit in support of the application...................(4) Certificate on seal or ban on publication.................(6) Charbonneau J. order dated Aug. 29 2002 ..................(7) Charbonneau J. reasons dated Aug. 29 2002................(10) Lederman Order dated Jan 9 2003..........................(16) Lederman Reasons dated Jan 9 2003........................(20) Appeal Court Order dated Oct 7 2003......................(59) Appeal Court Reasons dated Oct 7 2003....................(62) Appellant's Memorandum of argument......................(126) Authorities Authority #1: R. v. Stavert.............................(137) Authority #2: Health Canada Notice......................(145) Authority #3: April 1 2004 Turmel letter to A.G.........(149) Authority #4: Schacter v. Canada........................(151) Authority #5: R. v. J.P. Phillips J.....................(173) Authority #6: Crown Factum in Parker [2000].............(188) Authority #7: R. v. J.P. Court of Appeal................(195) ======== ------------------------- APPLICANT'S AFFIDAVIT JOHN C. TURMEL, APPLICANT ------------------------- I, John C. Turmel, residing at 37 Colborne St. in Brantford, have personal knowledge of the matters herein and make oath and say as follows: 1. http://www.cyberclass.net/turmel/timeline.htm is a timeline of all relevant cases and events leading up to this appeal. 2. http://health.groups.yahoo.com/group/MedPot contains the true reports of my efforts to abolish marijuana prohibition. 3. On September 16 2004, Justice Doherty issued the Order herein under appeal without the words "prohibition is now no longer invalid, but is of full force and effect" that I had demanded. John C. Turmel, B. Eng. Sworn before me at Brantford on Oct 6 2004. A COMMISSIONER, ETC. === ------------------------- APPLICANT'S MEMORANDUM JOHN C. TURMEL, APPLICANT ------------------------- OVERVIEW 1. On July 31 2000 in R. v. Parker, the Ontario Court of Appeal Ordered "the marijuana prohibition in s.4 of the CDSA to be invalid." On Mar 18 2003, the Alberta Court of Appeal Ordered the repeal of s.7 and s.4 of the CDSA. On Oct 7 2003 in Hitzig v. HMTQ, another Ontario Court of Appeal opined but refused to Order that "prohibition is now no longer invalid, but is of full force and effect." Lower courts are enforcing the new court-enacted legislation. Applicant submits Parliament Only Legislates, Courts Only Abrogate. PART I - STATEMENT OF FACTS 2. On July 31 2000 in R. v. Parker, Ontario Court of Appeal Justices Rosenberg, Catzman and Charron Ordered "the marijuana prohibition in s.4 of the CDSA to be invalid" for not providing access for medical purposes and suspended its ruling while granting Parker a constitutional exemption for 1 year. Though Parker was not deprived of his rights during this year, 2400 to 4600 Canadian epileptics who were not exempted with him were deprived of their right to life in that year and every year since then. Four of Canada's known 400,000 epileptics are deprived of their right to life every day. With the Attorney General for Canada erroneously holding that the CDSA prohibition had been saved by the MMAR, the Crown Attorneys continued wrongly prosecuting tens of thousands of Canadians. 3. On Dec. 11 2000 in R. v. Krieger, agreeing with the analysis in Parker, Justice Acton declared the prohibition on cultivation of marijuana in s.7, and possession in s.4, to be invalid and suspended her ruling for 1 year. On Mar 18 2003, Alberta Court of Appeal Justices Wittman, Costigan, and LoVecchio Order sustained the repeal of s.7 (and s.4). 4. On Jul 30 2001, one day before the expiry of the suspension of the Parker declaration of invalidity, Health Canada issued the Marihuana Medical Access Regulations. 5. On Aug 1 2001, Parker's exemption expired without the MMAR having provided the necessary medical access and so the marijuana prohibition in s.4 of the CDSA became invalid. 6. On Sep 15 2001, Health Canada sent Parker a s.56 ministerial exemption six weeks too late after his constitutional exemption had expired. 7. On Mar 15 2002, the day after Parker's s.56 exemption had expired, Ontario Superior Court Justice Romain Pitt using his criminal jurisdiction granted Parker an "Order extending the constitutional exemption granted to the applicant by the Ontario Court of Appeal until the Government has complied with the court's ruling." 8. On Sep 19 & 20 and Oct 18, 2002, applications by Terry Parker, Marc Paquette and Applicant John Turmel to declare the CDSA prohibition system unknown to law on Terry Parker Day were heard at the same time as Alan Young's Hitzig et al application to declare the MMAR permission system unconstitutional. 9. On Jan 9 2003, Justice Sidney Lederman ruled in Hitzig that the MMAR was unconstitutional and suspended his ruling 6 months. He dismissed the applications of Terrance Parker, John Turmel and Marc Paquette seeking a declaration that the Ontario Court of Appeal's decision in R. v. Parker had taken effect on Aug. 1 2001, Terry Parker Day. The Attorney General continued to wrongly prosecuted hundreds of thousands Canadians. Applicants appealed. 10. On Mar 18 2003, Alberta Court of Appeal Justices Wittman, Costigan and LoVecchio upheld the repeal of s.7 cultivation and s.4 possession of marihuana by Acton J. in R. v. Krieger. 11. On May 14 2003, the day before the Minister of Justice was to introduce legislation to newly re-criminalize prohibition of marijuana, Applicant was charged with possession for the purpose of trafficking under 3Kg for appearing at the doors of the House of Commons with 3.3Kg of marijuana to show that the prohibition was no longer valid in Canada. To deny Applicant a jury trial 3.3Kg would warrant, the Crown has alleged that 3.3Kg will prove possession of under 3Kg. 12. On May 15 2003, the Chretien Government held back the marijuana bill and no new legislation has ever been introduced since then. 13. On June 23 2003, Carthy J.A. dismissed the Crown's motion in Parker et al (including Hitzig) for an extension of time to appeal the Lederman repeal of the Marijuana Medical Access Regulations (MMAR). 14 On July 9 2003, the Lederman suspension expired and the MMAR became of no force or effect. 15. On Aug 1 2003, the Court of Appeal dismissed the Crown's appeal in Parker et al (including Hitzig) against Carthy J.A.'s refusal to extend the Lederman suspension of the repeal of the MMAR on July 9 2003. 16. On Oct 7 2003, Ontario Court of Appeal Justices Doherty, Goudge, and Simmons dismissed our appeals to declare "the marijuana prohibition in s.4 of no force or effect since Terry Parker Day Aug. 1 2001 and ruled that "the marijuana prohibition in s.4 has been of no force or effect since July 31 2001." 17. The Court then fixed the MMAR by striking down five (5) cancerous sections and opining that the unrepealed MMAR had the effect that "prohibition is now no longer invalid, but is of full force and effect" but refused to include it in the Order herein when requested: [2]...We have concluded that for those people the MMAR as drafted by the Government do not create a constitutionally acceptable medical exemption... the remedy we would impose, namely to declare invalid only five specific sections of the MMAR. This renders constitutional the medical exemption as described in the remaining provisions of the MMAR, thereby rendering the possession prohibition in s. 4 of the CDSA constitutional: R. v. Parker, supra. [170] 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. 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. Since the July 8, 2003 regulation did not address the eligibility deficiency, that alone could not have cured the problem. However, our order has the result of constitutionalizing the medical exemption created by the Government. As a result, the marihuana prohibition in s. 4 is no longer inconsistent with the provisions of the Constitution. Although Parliament may subsequently choose to change it, that prohibition is now no longer invalid, but is of full force and effect. Those who establish medical need are simply exempted from it. This consequence removes the cloud of uncertainty from the marihuana prohibition in s. 4 of the CDSA - a cloud which we were told in argument has created very considerable confusion for courts and law enforcement agencies alike." 16. On October 23 2003 in R. v. Stavert, Justice Jaqueline Matheson accepted that the Ontario court had resurrected the prohibition in s.4 of the CDSA writing: "[16] The effect of the Hitzig decision from the Ontario Court of Appeal is to create a constitutionally valid medical exemption for marihuana users to s.4 of the CDSA, thus making s.4 of the CDSA constitutionally valid and in full force and effect." http://www.canlii.org/pe/cas/pesctd/2003/2003pesctd85.html Authority #1: R. v. Stavert p.5 17. On Dec 3 2003, the "Health Canada Notice of Changes to the Marihuana Medical Access Regulations (MMAR)" reinstated two of the sections declared unconstitutional by the Court thus rendering the MMAR unconstitutional once again: "(7) The MMAR limit of one designated person producing on behalf of one authorized person was reinstated; as was the limit of three licensed persons producing marijuana at the same location." Authority #2: Health Canada Notice page 2 17. Even if the prohibition had really been properly resurrected by the Ontario Court for all of Canada without Parliament's approval, the MMAR has become unconstitutional yet once again thus rendering the marijuana prohibition in s.4 of the CDSA unconstitutional again. If, as the Court ruled, their making the MMAR valid again made the CDSA valid again, then Health Canada's making the MMAR invalid again makes the CDSA invalid again. Yet the Ministry of Justice has continued to prosecute hundreds of Canadians under this again invalid statute. 18. On Dec. 8 2003, upon expiry of the 60-day period to seek leave to appeal the Terry Parker Day declaration, the Crown was forced to announce the stay of all 4,000 pending improper s.4(1) charges after July 31 2001 but not after Oct 7 2003 when the new court-enacted legislation came into force and effect. Crown Attorneys who should know better have advised police to keep prosecuting Canadians under this judge-legislated penal sanction. The charges laid under the invalid statute should have been withdrawn, not stayed, but keeping the names of the innocent on the docket made it sound like a lucky glitch in the law so they could avoid having to apologize to their victims for their errors. With over 100,000 Canadians improperly charged and the whole mess covered up by the Crown and the courts, this is the biggest judicial screw-up in Canadian history. And the Attorney General did not inform the 100,000 Canadians who convicted before the courts found out the prohibition had been invalid for 2 years that their convictions were improper and has left all their records improperly stained by those convictions. 19. On Dec. 23 2003, the Supreme Court of Canada dismissed the Crown's application in R. v. Krieger for leave to appeal the Alberta Court of Appeal's repeal of the marijuana prohibitions on s.7 cultivation and s.4 possession offences. As the Crown so properly pointed out in their factum: "[57 as matters now stand s.7(1) has been declared of no force and effect by the highest court in Alberta." http://www.lexum.umontreal.ca/csc-scc/en/com/2003/html/03-12-23.3.html 20. On April 1 2004, Applicant wrote a letter to the Attorney General demanding he do the duty of freeing the prisoners and expunging the convictions of all those convicted while the prohibition was invalid. Authority #3: April 1 2004 Turmel letter to A.G. page 1 21.Parliament never introduced new prohibitions on the possession and cultivation of marijuana. 22. On Sep 14 2004, after the MMAR and CDSA had been invalidated again, Ontario Provincial Judge Edward in R. v. Nielsens ruled he was bound to permit the prosecution since the Hitzig resurrection ruling that "prohibition is now no longer invalid, but is of full force and effect." 23. On Sep 16 2004, On Sep 16 2004, after Applicant sought an Order that reflected the issue being appealed that "prohibition is now no longer invalid, but is of full force and effect" Justice Doherty refused to include the words "prohibition is now no longer invalid, but is of full force and effect" in the Order relegating it to mere opinion. PART II - QUESTIONS IN ISSUE 24. A) Is the genocide of Canada's epileptics at a statistical rate of 4 fatal seizures per day of sufficient importance for leave to be granted? 25. B) Can one Ontario Court of Appeal resurrect penal statutes which have been repealed by another Court of Appeal? 26. C) Can an Ontario Court of Appeal resurrect penal statutes which have been repealed by the Alberta Court of Appeal? 27. D) Can a slashed but unrepealed MMAR save the CDSA? 28. E) Did the CDSA turn off, on, off again? 29. F) Must the Attorney General correct wrongful convictions? PART III - STATEMENT OF ARGUMENT A) Is genocide of epileptics of national importance? 30. The Courts below have ruled that the statistics of epileptic death rates we presented were not medical evidence. Without the medical evidence, they couldn't help with the death going on. Applicant submits that the statistic of 4 of 400,000 known Canadian epileptics who die each and every day due to the prohibition of the best herbal anti-seizure medication in the world is sufficient medical evidence to warrant the conclusion that the right to life of all those corpses has been violated, regardless of how their right to liberty and security have been treated. 31. Despite the Court being informed by the applicant, whose degree in applied science assured the conclusion that exempting only 40 of Canada's 400,000 epileptics and continuing to prohibit access to the other 99.99% would barely affect the 4-a-day death rate, the court chose to announce that they had done Parliament's job and resurrected the prohibition so epileptics can still be busted for possessing marijuana. As of Oct 7 2004 when this Application was filed, 1 year since the ultra vires legislation was resurrected, that's 1500 known epileptics who had seizures without having access to the best anti-seizure medicine in the world. Those judges are responsible. The Supreme Court judges can accept continued responsibility for all those corpses or the Supreme Court can end the genocide of Canada's epileptics; and the genocide of all other Canadians whose lives could be extended by instant access to the world's best natural herbal medication. B) Can Ontario Court resurrect repealed penal statutes? 32. The Ontario Court of Appeal in Parker Ordered "the marijuana prohibition in s.4 of the CDSA to be invalid." The Ontario Court of Appeal in Hitzig opined that "prohibition is now no longer invalid, but is of full force and effect" which lower courts are enforcing. Applicant submits Parliament Only Legislates, Courts Only Abrogate. The Applicant submits that Courts cannot unrepeal invalid legislation. The prohibition on marijuana possession in s.4 was repealed by the Ontario Court of Appeal and the s.7 prohibition of cultivation was repealed by the Alberta Court of Appeal. Parliament has never re-legislated a new prohibition after July 31 2001 nor can the new Parliament do so until they have crafted a workable medical exemption to go with it for Canada's 400,000 epileptics. See: Authority #4: Schacter v. Canada page 3 33. On Jan 2 2003, Ontario Judge Phillips in Windsor wrote persuasively in R. v. J.P.: "[7] It is submitted by the Applicant therefore, that Rosenberg, J. A.'s judgment had the effect of declaring invalid the marihuana prohibition in s. 4 (1) effective on July 31, 2001 - twelve months after the release of the reasons in R. v. Parker. It is therefore argued that in keeping with s. 2(2) of the Interpretation Act(2), the enactment was deemed repealed. [8] The Controlled Drugs and Substances Act was not amended by Parliament, and no prohibition on the simple possession of marihuana has been re-enacted(4). [22] Simple possession of marihuana in s. 4(1) of the Controlled Drugs and Substances Act was struck down by the Court of Appeal. But the Court of Appeal went further in identifying whose task it was to address a remedy, writing: "...this is a matter within the legislative sphere. There is also a particular problem in the case of marihuana because of a lack of a legal source for the drug. This raises issues that can only be adequately addressed by Parliament." [23] Repeatedly Rosenberg J. A. returns to the theme of Parliamentary authority to address the remedy:..(8) <<<>>> Authority #5: R. v. J.P. pages 2,5,6 34. From the Attorney General's Appellants Factum in R. v. Parker [2000], Crown Attorneys Roslyn Levine QC and Kevin Wilson wrote: 80. In the present case the judicial intrusion goes to the very core of the relevant legislative power. Parliament's legislative authority over criminal law is, at its most basic, the power to decide whether or not particular kinds of conduct should be criminalized. The trial judge, in purporting to lift the criminal sanction for certain specific drug offences, is therefore, in effect, legislating criminal law. Authority #6: Crown Factum in Parker page 37 35. Applicant submits that the the Court of Appeal judges purporting to re-impose repealed criminal sanctions is even more objectionable. C) Can Ontario Court impose penal sanctions for all Canada? 36. The Alberta Court of Appeal agreed that the prohibitions on marijuana in s.7 and s.4 of the CDSA were unconstitutional and "as matters now stand s.7(1) has been declared of no force and effect by the highest court in Alberta." Applicant submits that the Ontario Court of Appeal's operations on repealed bodies of legislation have not resurrected the prohibitions struck down by the Parker and Krieger courts. Only Canada's Parliament can re- impose those prohibitions once the danger has been newly proven to those of us now liberated from an irrational policy. D) Can slashed but unrepealed MMAR save CDSA? 37. The Applicant submits that the Court, in sustaining Carthy's refusal to extend the suspension by Lederman, pronounced the MMAR officially repealed. Then in October, the Court announced operations on the officially dead MMAR which had resulted in a newly resurrected MMAR to then newly resurrect the CDSA prohibition. Can the court strike down some parts of a law that was struck down 3 months before? Applicant submits that cutting out the worse parts that caused the repeal of the legislation could not result in an unrepealed MMAR. E) Did the CDSA turn off, on, off again? 38. From the appeal court's decision in R. v. J.P.: [33] There was no need to amend or re-enact s.4 of the CDSA to address the constitutional problem in Parker. That problem arose from the absence of a constitutionally adequate medical exemption. As our order in Hitzig demonstrates, the prohibition against possession of marihuana in s.4 is in force when there is a constitutionally acceptable medical exemption in force. Authority #7: R. v. J.P. Court of Appeal page 14 39.The Appellant submits that the prohibition does not turn on and off when there is and isn't a constitutionally acceptable medical exemption in force. Once the statute has been turned off, only direct enactment by Parliament can turn it back on. F) Must Attorney General correct wrongful convictions? 39. Is it the duty of the Attorney General to release all remaining prisoners and expunge all convictions registered since marijuana prohibitions in s.4 and s.7 were invalid: a) from Aug 1 2001 to Oct 7 2003; from Dec. 3 2003 until now if it is accepted that courts can make new penal law; b) from Aug. 1 2001 to today if courts cannot make new law. The Applicant submits that the Attorney General staying the charges against 4000 innocent Canadians to keep their names on the docket is only the tip of the iceberg. This has to be a Guinness Record judicial snafu which the Court of Appeal seems to have helped cover up with its resurrection shuffle. The Supreme Court of Canada is the last resort to correct this injustice. After the Parker Court Ordered "the marijuana prohibition in s.4 of the CDSA to be invalid" Applicant lived without the chains of prohibition for over 2 years. The Applicant submits any opinion of the court that "prohibition is now no longer invalid, but is of full force and effect" that results in the deaths of 4 epileptics a day cannot be constitutional. Who do these judges think they are that they should re-impose chains on me without the approval of my Member of Parliament? I will bow to Parliament's legislation but not to the court's resurrected corpse. Such an abuse of the powers of the court leaves no other option than plugging up the courts with defences based on the grounds that Parliament Only Legislates and Courts Only Abrogate. Ontario Courts especially do not legislate for Alberta. PART IV - SUBMISSIONS ON COSTS 40. Applicant has devoted over 4 years to the abolition of the prohibition of the safest best herbal medication on the planet and the maximum allowed would be appreciated. PART V - ORDER SOUGHT 41. Applicant seeks leave to appeal the Oct 7 2003 judgment of the Ontario Court of Appeal for: 1) an Order overturning the court's opinion which has been deemed by lower courts to resurrect the prohibition on cannabis in s.4(1) of the CDSA and declaring that the prohibition on marijuana remains repealed since Aug. 1 2002, Terry Parker Day; 2) Order of Mandamus compelling the Attorney General for Canada to withdraw all current s.4(1) prosecutions. 3) Order of Mandamus compelling the Attorney General to release all prisoners and expunge all convictions registered under s.4(1) of the CDSA since: a) the Charter was enacted; or b) Aug 1 2000 when the section was deemed unconstitutional; or c) Aug 1 2001 when the section was deemed repealed. PART VI - TABLE OF AUTHORITIES Authority #1: R. v. Stavert p.5 Authority #2: Health Canada Notice page 2 Authority #3: April 1 2004 Turmel letter to A.G. Page 1 Authority #4: Schacter v. Canada page 3 Authority #5: R. v. J.P. pages 2,5,6 Authority #6: Crown Factum in Parker page 37 Authority #7: R. v. J.P. Court of Appeal page 14 Dated at Brantford on Oct 6 2004 For the Applicant: John C. Turmel, B. Eng.