Doc Weedlaw
Member
"[11] As we have held, the MMAR did not create a constitutionally acceptable medical exemption. In Parker, this court made it clear that the criminal prohibition against possession of marihuana, absent a constitutionally acceptable medical exemption, was of no force and effect. As of April 12, 2002, there was no constitutionally acceptable medical exemption. It follows that as of that date the offence of possession of marihuana in s. 4 of the CDSA was of no force and effect. The respondent could not be prosecuted.
[34] We would dismiss the appeal."
The Crown lost the appeal, and the court upheld the invalidity of the CDSA possession prohibition of marihuana.
Interpretation Act 2(2) states:
Expired and replaced enactments
(2) For the purposes of this Act, an enactment that has been replaced is repealed and an enactment that has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed.
R.S., 1985, c. I-21, s. 2; 1993, c. 34, s. 88; 1999, c. 31, s. 146; 2003, c. 22, s. 224(E).It is clear that the legislative prohibition was found to be of no force and effect in*Parker*and is therefore to be deemed repealed. The Crown and the Court lack jurisdiction to proceed with prosecutions, and the Police with arrests.
In a most recent decision in*Sfetkopoulos v. Canada FCA, it was found that the Marihuana Medical Access Regulations have continued to be unconstitutional. In the Crown's memorandum to the Supreme Court of Canada for leave to appeal the Crown states:
"The Court in R. v. JP ruled that the combined effect of Parker and Hitzig meant there was no constitutionally valid marijuana possession offence between July 31 2001 and Oct 7 2003, the date the MMAR were constitutionally rectified by the decision in Hitzig. Courts may construe the Federal Court of Appeal's decision as creating a similar period of retrospective invalidity dating back to December 3 2003, the date that s.41(b.1) was re-introduced into the MMAR."
The retrospective invalidity of the CDSA 4(1) prohibition as it applies to cannabis marihuana, began on Aug. 1, 2001 in accordance to the decision in*Parker*and is still invalid at the present. The MMAR could not save the repeal of the CDSA 4(1) prohibition. Unless Parliament enacts a new prohibition, the possession of marijuana is not an offence known to law.
Her Majesty the Queen v. Matthew David Beren (B.C.) (Criminal) (By Leave) (33071)* Jan 14, 2010
DISMISSED WITHOUT COSTS / REJETÉES SANS DÉPENS
(The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal is dismissed without costs. The application for leave to cross-appeal is quashed.
Coram: McLachlin / Abella / Rothstein
So now the Supreme Court of Canada has dimissed the Crown's appeal in Beren, therefore uphold the MMAR as unconstitutional and confirming the CDSA cannabis prohibitions invalid.
Federal Crown Attorney Kevin Wilson's admission to the Superior Court in R. v. Pallister admits the MMAR were unconstitutional. So anyone charged before May 14, 2009 can have their charges overturned.
R. v. Pallister, *Crown Attorney Kevin Wilson to SCO:**
"20. In express response to Sfetkopoulos paragraph*
41(b.1) of the MMAR was amended Effective May 14 2009*
to permit the holder of a production licence to grow*
for up to two ATP-holders. Although Sfetkopoulos*
determined that the pre-amendment regime was*
constitutionally defective, it necessarily has made no*
such determination with respect to the post-amendment*
regime. As the offence date of the Applicant's charges*
is October 2 2009, the alleged offences took place*
under the post-amendment regime. The MMAR were amended*
before the Applicant's alleged offence."
The*MMAR s. 54.1*defect found in*Hitzig*and then again in*Beren*was repealed two weeks after the Pallister*case.* Canada*Gazette
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The Supreme Court of Canada in,**Canada (Attorney General)*v.Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 para 82- 83 states:
*
82 Section 52(1) instructs courts to declare unconstitutional legislation of no force or effect. When a court issues a declaration of invalidity, it declares that, henceforth, the unconstitutional law cannot be enforced. The nullification of a law is thus prospective. However, s. 52(1) may also operate retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law: see, e.g.,*Miron v. Trudel*
83 This Court has applied in many cases the "declaratory approach" to constitutional remedies, which implies that s. 52(1) remedies are often given retroactive effect. See, for example,*Nova Scotia (Workers’ Compensation Board) v. Martin*at para. 28, Gonthier J. On this view, s. 52(1) remedies are deemed to be fully retroactive because the legislature never had the authority to enact an unconstitutional law. In the words of Professor Hogg, a declaration of constitutional invalidity "involves the nullification of the law from the outset*(P. W. Hogg,*Constitutional Law of Canada*(loose-leaf ed.), vol. 2, at p. 55-2 (emphasis added)). If the law was invalid from the outset, then any government action taken pursuant to that law is also invalid, and consequently, those affected by it have a right to redress which reaches back into the past.
*
Here is a*word from*Peter Hogg's widely respected*Canadian Constitutional Law. Courts are not allowed to do what the OCA did in Hitzig; says Hogg,*"the courts may not reconstruct an unconstitutional statute in order to render it constitutional."*There ought to come a point at which a court*"will recognize that an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court."*In such cases, as the Supreme Court Justice Lamer had argued in Schacter (1991),*"it is the legislature's role to fill in the gaps, not the court's"*(40-21, 5th edition, 2007)
*
As it stands right now, in fact and law, the offence of possession of marihuana is of no force and effect. Innocent people are being arrested and prosecuted unlawfully.* This is a judicial and democratic mockery and treasonous actions by the Harper Government, against the Canadian people
*Court Certified Information withdraw.
With_drawn.jpg
Size : 2.12 Kb*
Type : jpg
Derek Francisco's Section 24(1) Order*for return of his cannabis.
[34] We would dismiss the appeal."
The Crown lost the appeal, and the court upheld the invalidity of the CDSA possession prohibition of marihuana.
Interpretation Act 2(2) states:
Expired and replaced enactments
(2) For the purposes of this Act, an enactment that has been replaced is repealed and an enactment that has expired, lapsed or otherwise ceased to have effect is deemed to have been repealed.
R.S., 1985, c. I-21, s. 2; 1993, c. 34, s. 88; 1999, c. 31, s. 146; 2003, c. 22, s. 224(E).It is clear that the legislative prohibition was found to be of no force and effect in*Parker*and is therefore to be deemed repealed. The Crown and the Court lack jurisdiction to proceed with prosecutions, and the Police with arrests.
In a most recent decision in*Sfetkopoulos v. Canada FCA, it was found that the Marihuana Medical Access Regulations have continued to be unconstitutional. In the Crown's memorandum to the Supreme Court of Canada for leave to appeal the Crown states:
"The Court in R. v. JP ruled that the combined effect of Parker and Hitzig meant there was no constitutionally valid marijuana possession offence between July 31 2001 and Oct 7 2003, the date the MMAR were constitutionally rectified by the decision in Hitzig. Courts may construe the Federal Court of Appeal's decision as creating a similar period of retrospective invalidity dating back to December 3 2003, the date that s.41(b.1) was re-introduced into the MMAR."
The retrospective invalidity of the CDSA 4(1) prohibition as it applies to cannabis marihuana, began on Aug. 1, 2001 in accordance to the decision in*Parker*and is still invalid at the present. The MMAR could not save the repeal of the CDSA 4(1) prohibition. Unless Parliament enacts a new prohibition, the possession of marijuana is not an offence known to law.
Her Majesty the Queen v. Matthew David Beren (B.C.) (Criminal) (By Leave) (33071)* Jan 14, 2010
DISMISSED WITHOUT COSTS / REJETÉES SANS DÉPENS
(The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal is dismissed without costs. The application for leave to cross-appeal is quashed.
Coram: McLachlin / Abella / Rothstein
So now the Supreme Court of Canada has dimissed the Crown's appeal in Beren, therefore uphold the MMAR as unconstitutional and confirming the CDSA cannabis prohibitions invalid.
Federal Crown Attorney Kevin Wilson's admission to the Superior Court in R. v. Pallister admits the MMAR were unconstitutional. So anyone charged before May 14, 2009 can have their charges overturned.
R. v. Pallister, *Crown Attorney Kevin Wilson to SCO:**
"20. In express response to Sfetkopoulos paragraph*
41(b.1) of the MMAR was amended Effective May 14 2009*
to permit the holder of a production licence to grow*
for up to two ATP-holders. Although Sfetkopoulos*
determined that the pre-amendment regime was*
constitutionally defective, it necessarily has made no*
such determination with respect to the post-amendment*
regime. As the offence date of the Applicant's charges*
is October 2 2009, the alleged offences took place*
under the post-amendment regime. The MMAR were amended*
before the Applicant's alleged offence."
The*MMAR s. 54.1*defect found in*Hitzig*and then again in*Beren*was repealed two weeks after the Pallister*case.* Canada*Gazette
Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The Supreme Court of Canada in,**Canada (Attorney General)*v.Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10 para 82- 83 states:
*
82 Section 52(1) instructs courts to declare unconstitutional legislation of no force or effect. When a court issues a declaration of invalidity, it declares that, henceforth, the unconstitutional law cannot be enforced. The nullification of a law is thus prospective. However, s. 52(1) may also operate retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law: see, e.g.,*Miron v. Trudel*
83 This Court has applied in many cases the "declaratory approach" to constitutional remedies, which implies that s. 52(1) remedies are often given retroactive effect. See, for example,*Nova Scotia (Workers’ Compensation Board) v. Martin*at para. 28, Gonthier J. On this view, s. 52(1) remedies are deemed to be fully retroactive because the legislature never had the authority to enact an unconstitutional law. In the words of Professor Hogg, a declaration of constitutional invalidity "involves the nullification of the law from the outset*(P. W. Hogg,*Constitutional Law of Canada*(loose-leaf ed.), vol. 2, at p. 55-2 (emphasis added)). If the law was invalid from the outset, then any government action taken pursuant to that law is also invalid, and consequently, those affected by it have a right to redress which reaches back into the past.
*
Here is a*word from*Peter Hogg's widely respected*Canadian Constitutional Law. Courts are not allowed to do what the OCA did in Hitzig; says Hogg,*"the courts may not reconstruct an unconstitutional statute in order to render it constitutional."*There ought to come a point at which a court*"will recognize that an unconstitutional statute cannot be salvaged except by changes that are too profound, too policy-laden and too controversial to be carried out by a court."*In such cases, as the Supreme Court Justice Lamer had argued in Schacter (1991),*"it is the legislature's role to fill in the gaps, not the court's"*(40-21, 5th edition, 2007)
*
As it stands right now, in fact and law, the offence of possession of marihuana is of no force and effect. Innocent people are being arrested and prosecuted unlawfully.* This is a judicial and democratic mockery and treasonous actions by the Harper Government, against the Canadian people
*Court Certified Information withdraw.
With_drawn.jpg
Size : 2.12 Kb*
Type : jpg
Derek Francisco's Section 24(1) Order*for return of his cannabis.
No offense to anyone..I just dont post on many forums and this is usaully why.