JCT: Terry Parker, who won the original invalidation of the
marijuana prohibition in Canada before Alan Young won its
revalidation, had his marijuana seized by Canada Post and he
filed a Section 24 application for the return of his
controlled substance.
The Crown argued that his exemption expired at some point in
the past and that he should go doctor-shopping since there
are some doctors in Ontario who will sign though the most
will not,
For a whole slew of reasons, Terry argued that he was still
exempted from the possession offence, though they were
rejected by Judge Clements. We have his decision but it's
too big to transcribe right now.
Still, it had to be appealed. The only problem is that no
one has ever appealed a decision refusing a Section 24
application.
I knew we had to have a right to appeal but the only
possible rule we could use was under the "Summary
Conviction" section for appeals of prerogative remedies
which said that when there was no official route to appeal,
they would use this Rule 40 route to appeal. So I did:
If you go to
http://www.ontariocourts.on.ca/scj/en/about/rules/rules.htm
you read how an appeal works under section 40. Terry files
his Notice of Appeal and then the clerk faxes a copy to the
Crown. We file our paperwork, the Crown files theirs, then
we go to court.
Court File No. _________
SUPERIOR COURT OF JUSTICE
(Criminal Division)
Between:
Terrance Parker
Appellant
and
Her Majesty the Queen
Respondent
NOTICE OF APPEAL
TAKE NOTICE THAT Terrance Parker hereby appeals the Nov 28
2007 decision of Judge Clements of the Ontario Court of
Justice at Brampton which refused Appellant's Section 24
application for the return of a controlled substance.
THE GROUNDS OF THE APPEAL ARE that there currently exists no
statute known to law prohibiting the Appellant from
cultivating and possessing marijuana and, in the
alternative, if there were, Appellant is exempted.
Dated at Brampton on Dec 28 2007.
For the Appellant:
Terrance Parker
2209-55 Triller Ave.
Toronto, Ontario, M6R-2H6
Tel: 416.533.7756 Fax: 416.632.2334
E: terryparkerjr@[EMAIL PROTECTED]
TO: The Registrar of the Court in Brampton
AND TO: Department of Justice,
Ontario Regional Office,
The Exchange Tower,
3400-130 King St. W. Box 36
Toronto M5X 1K6
Tel: 416-973-0392 Fax: 416-952-0298
File: ORO.2-575719
But when Terry got to the Court Registry, the court
clerk refused to accept his Notice of Appeal since there was
no route to appeal out of Section 24. Terry was told that we
had to file an application of some kind, that it couldn't be
filed as a Notice of Appeal.
Before the 30-day deadline expired, I served a copy of
the same notice of appeal on the Crown and got service. Then
I tried to get it filed in the Registry. The clerk called up
the Registrar but I just couldn't convince them that they
should treat the Notice of Appeal pursuant to Rule 40 since
there was no other way. At least we'd filed if not served
his Notice of Appeal before the deadline had expired.
Again, they insisted I had to go by way of an
application to the court, not a notice of appeal. So I did:
Court File No. _________
SUPERIOR COURT OF JUSTICE
(Criminal Division)
Between:
Her Majesty the Queen
Respondent
and
Terrance Parker
Applicant
NOTICE OF APPLICATION
TAKE NOTICE THAT on March 28 2008 at 10am, Terrance Parker
will bring an application at the Brampton Courthouse for an
Order overturning the Nov 28 2007 decision by Judge Clements
of the Ontario Court of Justice at Brampton to deny
Applicant's Section 24 application for the return of a
controlled substance, marijuana.
AND TAKE NOTICE THAT Applicant seeks approval to turn on a
****table tape recorder pursuant to S.136 of the Ontario
Courts of Justice Act which states that "nothing prohibits a
party acting in person from unobtrusively making an audio
recording of the court hearing for the sole purpose of
supplementing or replacing handwritten notes in the manner
that has been approved by the judge;" or for any other
manner of audio-taping deemed preferable by the court.
AND FOR any Order abridging the time for service, filing, or
hearing of the application, or amending any defect as to
form or content of the application, or for any Order deemed
just.
THE GROUNDS OF THE APPLICATION ARE that because the S.7(1)
and S.4(1) prohibitions have never been re-legislated by
Parliament after being struck down by Parker and Krieger
Courts of Appeal, there currently no longer exists any
prohibition known to law on cultivating or possessing
marijuana and, in the alternative, if there are, Applicant
is exempted by medical necessity; and such further other
grounds as counsel may advise.
In sup****t of the application, the Applicant relies upon the
do***entation already filed before Justice Clements.
THE RELIEF SOUGHT is an Order returning the controlled
substance to its rightful owner, the Applicant.
THE APPLICANT MAY BE SERVED WITH DO***ENTS PERTINENT TO THIS
APPLICATION AT 2209-55 Triller Ave. Toronto, Ontario.
Dated at Toronto on March 22 2008.
For the Applicant:
Terrance Parker
2209-55 Triller Ave.
Toronto, Ontario, M6R-2H6
Tel: 416-533-7756 Fax: 519-753-0645
E: terryparkerjr@[EMAIL PROTECTED]
TO: The Registrar of the Court in Brampton
AND TO: Department of Justice,
Ontario Regional Office, The Exchange Tower,
3400-130 King St. W.
Box 36 Toronto M5X 1K6
Tel: 416-954-2929 Fax: 416-952-0298
File: ORO.2-575719
Per: James Gorham James.gorham@[EMAIL PROTECTED]
File No. _________
SUPERIOR COURT OF JUSTICE
(Criminal Division)
Between:
Her Majesty the Queen
Respondent
and
Terrance Parker
Applicant
APPLICANT'S AFFIDAVIT
I, Terrance Parker, residing at 2209-55 Triller Ave. in
Toronto, Ontario, make oath and say as follows.
1. Exhibit A is the Notice of Appeal of the Dec. 7 2007
final order of Justice Clements I tried to file On Dec. 28
2007 pursuant to Section 40.04 of the Criminal Proceedings
Rules. The Applicant had obtained a certificate in Form 2C
from the court re****ter stating that copies of the
transcript were ordered.
2. The Brampton Superior Court Registrar rejected the Notice
of Appeal insisting it took an application for such relief.
3. On Jan. 7 2008, the 30th day, Applicant served a copy of
the Notice of Appeal on the Crown and tried to again
initiate appeal under section 40.04.
4. The Registrar's Office again insisted on an Application
for relief from the judgment and would not proceed under
Section 40.04.
5. The transcript of the decision has now been obtained and
the Applicant seeks an extension of time to file the Notice
of Application for leave to appeal if a 30-day limit to
appeal is involved.
6. This affidavit is made in sup****t of an application for
relief from the decision of Justice Clements dated Dec. 7
2007.
Applicant: Terrance Parker
2209-55 Triller Ave.
Toronto, Ontario, M6R-2H6
Tel: 416-533-7756
Fax: 519-753-0645
E: terryparkerjr@[EMAIL PROTECTED]
before me
at Toronto on March 22 2008
__________________
A COMMISSIONER, ETC.
On March 28, we appeared before Mr. Justice Tulloch. He
pointed out I didn't have the right to be Terry's agent in
Superior Court and I could only say I'd been permitted to
help over the past 7 years right up to the Court of Appeal.
After Crown James Gorham had a while to explain that Section
40 of the Act permitted to try to overturn the decision,
either by way of Certiorari, prerogative remedy over a
decision, or an appeal under the "other Orders" Rule 40.
It got complicated enough that the judge asked me to speak.
I said I could understand why the Registrar might have
refused to do something that's never been done at the
bidding of a non-lawyer but I could only agree with the
Crown that some way had to be the right way and it had
seemed to me that a Notice of Appeal of an "other order" was
the only way to get the return of the marijuana.
The Crown agreed and explained that a Certiorari Order may
have some effect on the lower judge's decision but it
wouldn't make the police give the marijuana back. So there
really wasn't much choice.
Justice Tulloch endorsed the application:
"After hearing submissions from the Crown and the
Representative of Mr. Parker, Mr. Turmel, I am satisfied
that this court does have jurisdiction to hear an appeal in
this matter from the order of the Ontario Court, pursuant to
the Summary Conviction Appeal provisions of the Courts of
Justice Act, S.40.
The Applicant must adhere to the procedures as outlined
in the Summary Conviction Appeals and file and serve the
necessary applications for appeal, factums, and Books of
Authorities.
I am mindful of the fact that this not a summary
conviction appeal, however, the procedure as outlined in the
rules as they pertain to Summary Conviction Appeals should
be followed."
JCT: I then too the same Notice of Appeal down to the
Registry and mentioned that Justice Tulloch had just ruled
that it could be filed. Sure enough, they soon had a copy
of his endorsement and accepted it for filing.
Think of all the running around we had to do, three
trips to Brampton for Terry and two for me just to get the
Notice of Appeal filed starting the process! Well, at least
I could cheer as Terry and I left that court-house that it
isn't often that we get to beat H.M.T.C., not H.M.T.Q. Her
Majesty the Queen, but Her Majesty The Clerk.
I've decided to read the Clements decision onto video and
publish it. So stay tuned.
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