From: johnturmel@yahoo.com   
      
   TURMEL: Crown Factum for MedPot Mike Spottiswood's Monday trial   
      
   JCT: This is a parsing of the Crown's case in response to   
   Mike Spottiswood's Application to Quash S.7 producton   
   offence due to Parliament never re-enacting the prohibition   
   after Krieger struck it down and Application to declare the   
   S.7 offence invalid for flaws in the MMAR.   
      
                    SUPERIOR COURT OF JUSTICE   
          (Southwest Region, sitting at London, Ontario)   
   Between:   
                      HER MAJESTY THE QUEEN   
                                                     Respondent   
                               and   
                    Michael Kevin Spottiswood   
                                                      Applicant   
      
            RESPONDENT'S FACTUM: APPLICATION TO QUASH   
              and NOTICE OF CONSTITUTIONAL QUESTION"   
      
   RESPONDENT'S FACTUM:   
      
   CR: PART II - RESPONSE TO APPLICANTS ISSUES   
      
   OVERVIEW   
      
   Applicant is charged with two counts of Possession for the   
   Purpose of Trafficking as well as two counts of Production   
   of Cannabis Marijuana. He challenges the constitutionality   
   of the Marijuana Medical Access Regulations (MMAR) and seeks   
   a declaration that S.4 and S.7 are of no force and effect..   
      
   JCT: Krieger got the declaration that S.7 and S.4 were of no   
   force and effect. Mike's seeking to quash because S.7   
   "remains" of no force since Krieger. She's rephrasing the   
   Quash based on Krieger with a challenge that needs to be   
   proven again. Yet, that's what we're doing in the   
   constitutional anyway, exactly the same as Krieger and   
   Mernagh, but notice how she's turned the Quash challenge   
   into a constitutional just by wrongly using the word "are"   
   instead of "remain." "Are" is the word used when you're   
   trying to strike down a live law, not a dead one.   
      
   CR: because Parliament did not re-enact the CDSA after the   
   Court found flaws in the medical marijuana provisions.   
      
   JCT: And of course, Parker didn't find any flaws in the   
   medical provisions, there were no medical provisions then.   
   He found the lack of medical provisions was the flaw! Har   
   har har. Can't even get the base case right.   
      
   CR: APPLICATION TO QUASH   
   21. The Applicant seeks an order pursuant to S.601 of the   
   Criminal Code quashing his charges. He challenges the   
   existence of all cannabis marijuana laws   
      
   9JCT: No he doesn't. Only the ones Parker and Krieger struck   
   down, S.4 and S.7, not S.5(2) that Turmel lost.   
      
   CR: on the basis of arguments promulgated by John Turmel   
   that  have been dismissed by the Ontario Court of Appeal and   
   other courts over and over again.   
   R. v. Turner.   
      
   CR: Background   
      
   22. The Supreme Court has upheld the general   
   constitutionality of the cannabis marijuana prohibition in   
   R. v. Malmo-Levine.   
      
   JCT: And we have to point out how it ruled the government   
   may prohibit and recreational need isn't enough to stop them   
   though Parker's medical need already had, it did not rule   
   Government had re-prohibited after Parker knocked down.   
   See how handy it was for Malmo-Levine's stinker weak-sister   
   to lose at the top so it could be misinterpreted by   
   government lawying this way.   
      
   CR: 23. Parker story.   
   24. MMAR July 30 2001   
      
   25. The question of whether the MMAR were constitutionally   
   adequate response came before the Ontario Court of Appeal in   
   Hitzig v. Canada.   
      
   JCT: Should have been called Parker II as originally filed.   
      
   CR: The Court determined that the MMAR regime was   
   unconstitutional in that it did not adequately provide for a   
   lawful supply of cannabis marijuana.   
      
   JCT: That the MMAR had failed because Parker was still   
   unexempted was dismissed by Justice Doherty, Simmons and   
   Goudge. Har har har.   
      
   CR: 26. Rather than strike down the MMAR in their entirety,   
      
   JCT: They didn't scrap the whole car because there are only   
   3 wheels and the brakes are seized! If the whole car wasn't   
   scrapped, it must mean it works! Judged! Har har.   
      
   CR: and declare S.4 of the CDSA to be of no force and   
   effect,   
      
   JCT: Parker had already ruled the prohibition invalid.   
   Hitzig's Alan Young did not ask that S.4 of the CDSA be   
   declared of no force and effect because the MMAR had failed,   
   Terry Parker had asked the Parker Order had taken effect   
   when the MMAR had failed. But since his motion was dismissed   
   when Alan proved the MMAR deficient and didn't ask, his   
   motion asking was aborted with it. Fortunately, J.P.'s   
   McAllister had asked that J.P.'s 2002 charge be dropped   
   while there was No Offence and a Bad Exemption which the   
   Court granted.   
      
   Nice for the Crown to mention how the CDSA was dependent on   
   a working MMAR, BENO, and I get another chance to point out   
   how McAllister won what Professor Saboteur or Ganja Gilligan   
   Young forgot to ask.   
      
   CR: the Ontario Court of Appeal crafted a Charter-compliant   
   MMAR   
      
   JCT: in 2003, two years after Parker had taken effect in   
   2001   
      
   CR: by striking down S.41(b) which prohibited a licensed   
   producer from growing for more than one ATP-holder.) and   
   S.54 (which prohibited more than three licensed producers   
   from producing in common).   
   x   
   CR: This resulted in a retrospective period of invalidity of   
   the prohibition of marijuana possession dating back to July   
   31 2001, the date the suspension of invalidity in Parker   
   expired) but had the prospective effect of making the once   
   again fully constitutional in Ontario as of Oct 7 2003 (the   
   date of the Hitzig decision)   
      
   JCT: And not elsewhere? A retrospective period that ended   
   when the two flaws were struck out of the regime. And yet   
   the Court of Appeal would not grant Parker's motion to have   
   it declared invalid upon expiry date. Neat.   
      
   CR: The Argument that the charges should be quashed has NO   
   merit.   
      
   27. The Applicant's argument that his charges should be   
   quashed is dependent on cannabis no longer being a   
   controlled substance.   
      
   JCT: It's the same as J.P. and Mernagh. The Applicant is not   
   saying cannabis is no longer a controlled substance, there   
   it is on the Schedule II. We see it, it's there. Applicant   
   is, using the exact words of the Parker Court, "the   
   possession offence on marijuana in S.4 is invalid," not the   
   possession offence on any other Controlled Substances. And   
   the Krieger Court ruled the prohibition on cultivation in   
   S.7 was invalid.   
      
   CR: Concurrently with Hitzig was the decision in R. v.   
   Turmel (2003) which held that Parker did not have the effect   
   of deleting cannabis marijuana from Schedule II of the CDSA.   
   "While there are questions about whether this motion was   
   properly brought, and whether the Superior Court had   
   jurisdiction to hear it, we prefer to deal with this appeal   
   by addressing directly the argument made by Mr. Turmel.   
      
   JCT: I'm honored it was such a great argument that it took   
      
   [continued in next message]   
      
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