TURMEL: Terry Parker files for exemption to Supreme Court JCT: Heres Terry Parkers Applicattion for Leave to Appeal IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) BETWEEN: Terrance Parker Applicant Appellant in appeal And Her Majesty The Queen Respondent APPLICATION FOR LEAVE TO APPEAL Terrance Parker, APPLICANT (Pursuant to Rule 25 of the Supreme Court Rules) TABLE OF CONTENTS 1. Notice of Application for Leave to Appeal..........1 2. June 4 2014 Order of Phelan J......................(3 3. June 4 2014 Reasons of Phelan J....................(11 4. Jul 17 2014 Order of Nadon J.A....................(2 5. Applicants Memorandum............................ NOTICE OF APPLICATION FOR LEAVE TO APPEAL Terrance Parker, APPLICANT (Pursuant to Rule 25 of the Supreme Court Rules) TAKE NOTICE that Applicant seeks an Order overturning the July 17 2014 decision of Federal Court of Appeal Justice Nadon (A-287-14) dismissing Applicants motion for an interim exemption for marijuana THE GROUNDS OF APPEAL are that without an immediate interim exemption for Personal Medical Use of marijuana, I could die of my cancer which I had cut in half before my MMAR exemption expired. The Applicant further appeals the Order for $500 in costs. THE GROUNDS ARE that I cannot afford it and asking for medication should not be so punished. Dated at Toronto on Sep 26 2014. For the Applicant: Terrance Parker APPLICANTS MEMORANDUM Terrance Parker, APPLICANT (Pursuant to Rule 25 of the Supreme Court Rules) PART I - OVERVIEW 1. In R. v. Parker [1997], Provincial Court Judge Sheppard granted me an exemption from the CDSA prohibitions on possession and cultivation of marijuana for my medical need. 2. On July 31 2000, in R. v. Parker, the Ontario Court of Appeal ruled the prohibition on possession of marijuana (and cultivation prohibition had that stay been appealed) to be invalid absent a viable medical exemption. It suspended its decision 1 year and granted me a constitutional exemption from the prohibitions in the CDSA pending the government providing me with a medical exemption. 3. On July 30 2001, one day before the year-suspension was up, the Marijuana Medical Access Regulations were issued. 4. On Aug 1 2001, I could not comply with the MMAR demands and once again fell under unconstitutional jeopardy and have been unable to comply since then and remain unexempted. 5. On Mar 5 2014, I filed a Statement of Claim in Federal Court for repeal of the MMAR based on 16 identified constitutional violations, of the MMPR based on 20 identified constitutional violations, and of the prohibitions by striking the word marijuana from Schedule II of the CDSA. 6. I also filed Motion Record with an Affidavit attesting to my need of marijuana for my epilepsy for an interim exemption for Personal Medical Use. 7. On Jun 4 2014, upon a motion by Her Majesty in Default of filing a Statement of Claim, Justice Phelan stayed my action pending the final decision in Allard v. HMTQ (T-2030-13) on the basis that I am seeking relief which is substantially similar to that being sought by the Allard Plaintiffs whose resolution would significantly narrow the issues I am raising. 8. The Allard case represents the concerns of the Coalition Against MMAR Repeal who have Authorizations To Possess while I seek MMAR repeal because it never worked for me. Such polar opposite remedies are not substantially similar. 9. The Allard case seeks to end the MMPR prohibition on: a) cannabis derivatives; b) outdoor growing; c) in-home growing; d) possession of more than 150 grams. 10. I do not have legal access so that the resolution of those issues does not affect me and cannot significantly narrow any issues I am raising. 11. Justice Phelan further dismissed my motion for interim exemption for personal medical use ruling: [21] In the Allard Injunction hearing, Justice Manson declined to issue a similar constitutional exemption. He wrote at para 124: The first form of relief requested by the Applicants [a constitutional exemption] is inappropriate. It would exempt medically-approved patients and their designates from the possession, trafficking, and possession for the purposes of production provisions in the CDSA without qualification. This is not the intent of the MMAR, which defined the circumstances under which medically-approved patients could possess and grow marihuana and in what quantities. The relief sought would grant them exemption from the provisions of the CDSA without limitation. [22] This Court concurs with the reasoning of Justice Manson. The constitutional exemption from the prohibitions on marihuana in the CDSA sought by the claimants (whether interim or permanent) is inappropriate. It is not tailored to remedying an alleged Charter violation, but appears essentially unlimited. 9[23] The requested exemption does include an apparent limit in the form of the marihuana production and possession being for the Plaintiffs personal medical use. As the claimants attack the MMAR and MMPR regimes in part for their reliance on doctors prescription, it is unclear how a valid medical purpose would be established other than in the claimants discretion. 12. Though the apparent limit of Personal Medical Use appears essentially unlimited, nevertheless, it was sufficient limit to be granted both previous exemptions by the criminal courts; a Criminal Court would clearly discern that trafficking to minors could never be construed as Personal Medical Use. So if an unlimited exemption for Personal Medical Use without any prescribed dosage was limited enough for those courts then, it should also have been now. 13. Justice Phelan further ruled: Perhaps most importantly, the claimants have failed to establish at this time that the medical exemption provided by the MMAR or MMPR violates their Charter rights in a way that would be remedied by the proposed constitutional exemption. 14. Since neither the MMAR nor MMPR serve my medical need, a continued violation of my right to life acknowledged by the Ontario courts remains while I have no exemption for access for medical use. 15. Justice Phelan further ruled: [24] The Court is aware that in R v Parker, [2000] OJ No 2787, 49 OR (3d) 481 (OCA) [Parker], the Ontario Court of Appeal granted a one-year personal constitutional exemption from the possessions offence under the CDSA to Mr. Parker for his medical needs. This was in the context of a broader order which declared the marihuana possession prohibition in section 4 of the CDSA to be invalid, and suspended the declaration of invalidity for a period of twelve months from the release of the decision. [26] The facts in Parker are distinct from those at hand. In Parker, there was no exemption from the CDSA marihuana prohibition provisions. The proceedings at hand are distinct because there is an exemption in the form of the MMPR (and in grandfathered MMAR permits for certain claimants); the claimants simply challenge the validity of this exemption. Most importantly, the constitutional exemption was granted in Parker in conjunction with a temporary suspension of a declaration of invalidity of the provisions of the CDSA. The Court has not made such an order here. When s. 24(1) is read in context, it becomes apparent that the intent of the framers of the Constitution was that it function primarily as a remedy for unconstitutional government acts. 16. Since I am that Terrance Parker, the facts in Parker are not very distinct. Whether I should have had an interim exemption pending the eventual declaration of invalidity was mooted by Judge Sheppard granting me an exemption from the start. An exemption was the only available remedy Judge Sheppard had without power to strike down the prohibitions. An exemption was the only available remedy the Ontario Court of Appeal ordered during the suspension of the Parker decision; and an exemption was the only available remedy the Crown could offer in fulfilling Ontario Court of Appeal Justice Moldavers Order that I be protected pending my appeal. And I ask for such remedy again for an alleged unconstitutional government act, not yet but soon to be proven. 17. The validity of the exemption is being challenged for the same unaffordability for which the Allard Plaintiffs were granted remedy. Not being able to afford the MMPR seemed good enough reason to grant the Allards their protection, it should be good enough reason to have granted me mine too. 18. Justice Phelan also ruled: [28].. the motions materials are inadequate to grant any relief. Although the motion record contains an affidavit portion which contains different degrees of personal information, each fails to plead sufficient evidence regarding the claimants personal circumstances to warrant any relief. 19. My Affidavit attested that I have medical need for marijuana for my epilepsy. Given the Crown has not disputed that fact, the court should not have either. 20. The Appellants Reply to the Crown Response: 1. This is a motion for an interim exemption from the prohibitions on marijuana in the CDSA for Personal Medical Use pending an appeal of the stay of the action seeking a constitutional declaration below. 2. The Crowns response raises the following issues: A) Is an interim exemption declaratory relief? B) No Jurisdiction for interim relief? C) Omitting Personal Medical Use v. Without Limitation? D) Exemption Inappropriate? E) Suspended Declaration before interim relief? F) No previous right? G) Insufficient evidence of medical need? H) Unaffordability for Parker too? I) Parker did not seek physician approval? A) IS EXEMPTION DECLARATORY RELIEF? 3. The Crown has argued: CR: 12... pending the outcome of his appeal. In essence, the Appellant asks this Court for an interlocutory declaration that the CDSA provisions infringe his Charter Right and do not apply to him until such time as his appeal is decided... 15. Moreover, even were declaratory relief available from this court, it is well established that declaratory remedies are not available on an interlocutory basis. 16. The constitutionality of the MMPR is the central issue in the Appellants action. The Appellant now effectively asks this Court to rule on that central constitutional issue on an interlocutory basis, without the benefit of full evidentiary record or trial. The request is entirely inappropriate. 4. I am NOT appealing for interim declaratory relief, I am appealing the stay of my action below that seeks such declaratory relief. No declaratory relief is sought here, only for protection from the CDSA prohibitions while it is argued below that the MMAR- MMPR exemption regimes have failed me. There is no motion to this Court to rule on that central constitutional issue on an interlocutory basis at all. The interim exemption from threat to life is the central issue in the Appellants motion above, the constitutional issue raised in the action below is not. B) NO JURISDICTION 5. The Crown further argued: CR: 13. The requested relief is not available from this Court. S.18 and 28 of the Federal Court Act set out the declaratory powers of the Federal Courts. S.18 provides that declaratory relief against only a federal board, commission, or other tribunal and provides the Federal Court with exclusive jurisdiction to issue such relief, save and except where the board, commission or other tribunal is among those listed in s.28, in which case, jurisdiction rests with the Federal Court of Appeal. 14. The Appellants request for declaratory relief is not directed at a federal board, commission or other tribunal, let alone one listed in s.28. 6. The Federal Court Act states: 27. (1) An appeal lies to the Federal Court of Appeal from any of the following decisions of the Federal Court, (c) an interlocutory judgment; or (d) a determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada. 7. I am appealing under (c), not (d). 8. The Crown argued: CR: This Court is accordingly without jurisdiction to grant Appellants motion. 9. The Federal Court Rules say: 1.1 (1) These Rules apply to all proceedings in the Federal Court of Appeal and the Federal Court unless otherwise provided by or under an Act of Parliament. 373. (1) On motion, a judge may grant an interlocutory injunction. C) OMIT PERSONAL MEDICAL USE FOR INAPPROPRIATENESS 10. The Crown argued: CR: 1. The Appellant seeks an interim constitutional exemption from the CDSA pending his appeal of an interlocutory decision of the case management judge. 11. Also, the Crown omits the limit for Personal Medical Use in paras. 2, 3, 6, 9, 10, 11, 12, twice in 17. Then: CR: 6. With respect to the plaintiff interlocutory motions for CDSA exemptions pending trial of their actions, Canada submitted that the Federal Court (Manson J.) had rejected a similar request for interim relief in Allard, and that doctrines of judicial comity and abuse of process required that the plaintiffs motions be similarly dismissed. 20. In fact, the Federal Court expressly rejected the Allard plaintiffs request for an interim exemption 12. The Crown omitted the limit For Personal Medical Use each time it cited the exemption I seek and omitted without limitation each time it cited the Allard exemption sought and refused. With both qualifiers omitted, they would seem to be both equally inappropriate. Without the omissions, Personal Medical Use is quite not without limitation. D) EXEMPTION INAPPROPRIATE 13. The Crown argued: CR: 9. By further Order dated June 4 2014, Phelan J. dismissed the plaintiffs motions for interim relief. In doing so, the Court noted that the CDSA exemption sought was inappropriate as it was insufficiently tailored to the Charter violations alleged by the plaintiffs. 14. Appellant has cited being exempted under an identical limit for Personal Medical Use before. An interim exemption for Personal Medical Use is not inappropriate. E) SUSPENDED DECLARATION FIRST BEFORE INTERIM RELIEF 15. The Crown argued: CR: 17. The Appellant notes that the Ontario Court of Appeal has granted him an interim exemption once before, and submits that the same relief must therefore be available here. The decision cited is inapposite. The interim personal constitutional exemption granted to the Appellant was issued pursuant to S.24(1) of the Charter, in conjunction with a one-year suspended declaration of invalidity. By contrast, there has been no finding in the present case that the impugned regulatory provisions are unconstitutional. 16. In 2003, I was appealing the dismissal of his motion by Ontario Superior Court Justice Lederman for an Order declaring that the prohibitions in the CDSA of no force and effect since Terry Parker Day Aug 1 2001 and for a motion extending the exemption granted him by the Ontario Court of Appeal until the government had complied with the courts order. Justice Moldaver Ordered Crown Chris Leafloor to exempt Appellant Parker during the appeal; Exemptions during a challenge are also available, not just after success. F) NO PREVIOUS RIGHT EXIST 17. The Crown argued: 21. here is a significant difference between an interlocutory injunction that preserves the legislative status quo pending the trial of an action, and an interlocutory declaration that grants a right in circumstances where no right has previously been found to exist. Whereas the Federal Courts Act and Rules provide for the former, there is no statutory basis for the latter. Absent any clear statutory authority, the requested relief is unavailable. 18. My right was found to exist by three previous courts. G) INSUFFICIENT EVIDENCE OF MEDICAL NEED 19. The Crown argued: CR: In any event, even had the requested relief been available, the Court observed that the plaintiffs motion materials were inadequate and that each fails to plead sufficient evidence regarding the claimants personal circumstances to warrant any relief. 20. Evidence of my epilepsy has proven to be sufficient evidence regarding my personal circumstances to warrant exemption for Personal Medical Use from three courts before. H) UNAFFORDABILITY FOR PARKER TOO 21. The Crown note: 18... He submits that if there was good enough reason to grant the Allards their protection, it should be good enough reason to have granted me mine too. 22. There is no reason the Allards should be be protected while the MMPR is unaffordable and not me. I) NOT SEEK PHYSICIAN APPROVAL 23. Finally, the Crown most offensively misconstrued: CR: 18. In 2001, the Government of Canada responded to the Court of Appeal decision by introducing the MMAR. The MMAR authorized individuals with physician approval to possess, and in comes cases, produce, marihuana for their personal medical use. However, the Appellant declined to seek the requisite physician approval and, as a result, was never authorized under the MMAR to possess or produce marihuana. 22. It is false that I did not seek physician approval, could anyone be that stupid? I did unsuccessfully seek the requisite physician approval in an era when doctor- shopping only found 1 in 100 doctors participating in the MMAR. The Crown has shown no evidence for their false assertion. Never getting an MMAR Exemption does not mean I did not seek one. Dated at Toronto on Friday July 11 2014. Terrance Parker 20. On July 17 2014, my motion for an Interim Exemption for Personal Medical Use was dismissed without reasons. PART II - ISSUE 21. Does the Applicants need for marijuana warrant an Interim Exemption for Personal Medical Use pending Action to repeal the prohibitions on marijuana? PART III - ARGUMENT 22. After staying the Applicants Charge, Judge Sheppard granted Applicant an Exemption for Personal Medical Use. 23. During the suspension of its declaration of invalidity of the prohibition on possession of marijuana in the CDSA and the promulgation of the MMAR Exemption, the Ontario Court of Appeal granted the Applicant an exemption from the CDSA for Personal Medical Use. 24. During Applicants later appeal to declare the prohibitions invalid, Ontario Court of Appeal Justice Moldaver ordered Health Canada to provide Applicant with a S.56 Exemption for Personal Medical Use. 25. Upon the failure of the MMAR to provide Applicant with exemption from the CDSA, Applicant has now moved for a declaration that the Order of Invalidity has taken effect if the MMAR Exemption did not protect his Right to Life. PART IV - ORDER SOUGHT 26. Applicant seeks an Order overturning the July 17 2014 dismissal of my Motion for Interim Exemption for Personal Medical Use by Federal Court Justice Nadon and granting Applicant an Interim Exemption for Personal Medical Use. Dated at Toronto on Sep 26 2014. Applicant: Terrance Parker NOTICE OF MOTION Terrance Parker, APPLICANT (Pursuant to Rule 25 of the Supreme Court Rules) TAKE NOTICE that seeks an Order on Short Notice for an Interim Exemption from the CDSA for the Personal Medical Use of marijuana by Applicant to treat his epilepsy. THE GROUNDS OF MOTION are that the courts have 3 times previously found I merited exemption from the prohibitions on marijuana in the CDSA and that remedy remains necessary. Dated at Toronto on Sep 26 2014. __________________________ For the Applicant: Terrance Parker APPLICANTS MEMORANDUM Terrance Parker, APPLICANT (Pursuant to Rule 25 of the Supreme Court Rules) PART I - OVERVIEW 1. In R. v. Parker [1997], Provincial Court Judge Sheppard granted me an exemption from the CDSA prohibitions on possession and cultivation of marijuana for my medical need. 2. On July 31 2000, in R. v. Parker, the Ontario Court of Appeal ruled the prohibition on possession of marijuana (and cultivation prohibition had that stay been appealed) to be invalid absent a viable medical exemption. It suspended its decision 1 year and granted me a constitutional exemption from the prohibitions in the CDSA pending the government providing me with a medical exemption. 3. In 2003, a S.56 exemption was granted after Ontario Court of Appeal Justice Moldavers Ordered that I be protected pending an appeal. 4. I have never been able to get my doctor to participate in the MMAR. PART II - ISSUE 5. Should Applicant be granted an Interim Exemption pending adjudication of this Application for Leave to Appeal? PART III - ARGUMENT 6. The courts have thrice before found that an exemption from the CDSA on marijuana for Personal Medical Use was warranted for the Applicants Epilepsy. Nothing has changed. Applicant still needs exemption from the prohibitions on his medicine. PART IV - ORDER SOUGHT 7. Applicant seeks an Order granting an Interim Exemption on the marijuana prohibitions in the CDSA for Personal Medical Use pending this Application for Leave to Appeal. Dated at Toronto on Sep 26 2014. Terrance Parker JCT: Stephen Burrows wanting to finish curing his cancer, Robert Roy wanting his 3-days too early expired exemption back, and Ray Turmel not wanting to live under the MMAR, are next.
Posted on: Mon, 29 Sep 2014 00:45:01 +0000
Trending Topics
Recently Viewed Topics
© 2015