ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-G17008
DATE: 2014-08-07
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
JAMES TURNER
Respondent
Steve White, for the Crown
Self-represented
HEARD: February 6 and May 2, 2014
T.D.RAY, J.
REASONS FOR JUDGMENT
[1] The Crown brings this application to quash the defendant’s application which challenges the constitutional validity of ss. 4(1) and 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”), the Medical Marihuana Access Regulations, SOR/2001-119, s. 227 (“MMAR”), and seeks a stay of proceedings. The Crown’s motion to quash without a hearing is based on the grounds that the defendant’s application is frivolous, and that the defendant’s constitutional challenge has no chance of success based on the evidence he proposes to lead.
[2] The parties agreed that at the conclusion of the Crown argument, the motion to quash would be adjourned to permit the defendant time to marshal his arguments, which he did.
[3] The defendant’s Notice of Application and Constitutional Challenge seeks a stay of the charges against him, a declaration that the MMAR are unconstitutional, and a declaration that the CDSA ss. 4(1) and 7(1) prohibitions are of no force and effect. The lion’s share of the application is the same as that argued before me in 2011, and dismissed on the ground that the defendant’s arguments had previously been litigated and dismissed.
[4] The Crown contends that as a legal matter, all of the provisions of the CDSA are in full force and effect. The period of invalidity only took place between July 31, 2001 and October 7, 2003. The current charges the defendant is facing arose in September, 2006. In addition, the Crown says that the evidence the defendant proposes to lead at the hearing to be held for his constitutional challenge is grossly inadequate, and is not in accordance with the evidentiary foundation required for this type of challenge.
[5] The defendant contends in argument that his proposed evidence meets the threshold established by the Court of Appeal in R. v. Mernagh[1], and that his case is similar to an unreported case in London, Ontario (R. v. Spottiswood) where he alleges the court began to hear witnesses, but a plea was taken, and the case ended. He also argued that a provincial court decision in Nova Scotia (R. v. Scovil) on similar facts, was under reserve.
[6] For the reasons that follow, I would grant the Crown’s motion to quash, and order the defendant’s Notice of Application and Constitutional Challenge dismissed.
[7] The history of this matter is part of a campaign launched by persons similar to the defendant who are engaged in an unrelenting series of legal challenges designed to change the law as it relates to marijuana and to frustrate criminal proceedings. To date, the efforts have been for the most part unsuccessful in the courts, not because the law is right or wrong, but because Parliament is the appropriate forum to entertain these arguments. None of the defendant’s arguments are novel. All were previously argued and disposed of. The success of some of these arguments in the courts that previously identified particular statutory issues have since been corrected. A brief history of this case is as follows:
a. September 28, 2006 – the defendant was arrested and charged with possession and production of some 2,879 marijuana plants and related paraphernalia (ss. 4(1) and 7(1) CDSA).
b. October 11, 2006 – the defendant’s first appearance.
c. Numerous adjournments were requested by the defendant and granted over the following several months; and finally he became self-represented.
d. December 1, 2008 – Lalonde, J. (SCJ) dismissed the defendant’s motion for prohibition (R. v. Turner, [2008] O.J. 4852). Lalonde, J., noted the defendant’s materials were boilerplate materials copied from John Turmel, a long-time activist, and further that he was attempting to relitigate R. v. Turmel (R. v. Turmel, 2003 17130 (ON CA), 231 D.L.R. (4th) 190 (Ont. C.A.)).
e. June 28, 2009 – after a number of preliminary enquiry adjournments requested by the defendant, he consented to be committed for trial on all charges.
f. July 7, 2009 – an indictment was filed.
g. August 18, 2009 – the defendant’s appeal from the decision of Lalonde J. was ordered abandoned by the Court of Appeal.
h. December 17, 2009 – the defendant’s further appeal to the Supreme Court of Canada was dismissed without reasons.
i. March 9, 2011 – I heard and dismissed the defendant’s motion to quash and held the marijuana offences were in full force and effect (R. v. Turner, 2011 ONSC 1508). The defendant’s constitutional challenge was adjourned on consent pending disposition on appeal of R. v. Mernagh.
j. October 10, 2013 – the defendant filed his current updated Notice of Application and Constitutional Challenge.
[8] The defendant’s challenge to the regulatory scheme (MMAR) is to the scheme that was in place at the time he was charged. It has since been replaced by a new scheme. The defendant has no standing to challenge the current regulatory scheme. Since the scheme in place at the time of his charges is no longer in force, the only relief the defendant would be able to seek would be a stay of proceedings. In his challenge to the MMAR, he lists some 23 grounds for seeking his relief. For the most part, the complaints do not relate to the regulatory scheme but to the manner in which it was administered and to the role of the medical profession in the execution of the regulatory scheme. Specifically, delay is his chief complaint. That is not a function of the regulations. Even if the regulatory scheme were still in place, his complaints do not concern the regulations. His present challenge is therefore untenable and has no merit.
[9] The defendant says that he intends to call in excess of 55 witnesses at the proposed hearing to attest to the operation of the previous regulatory scheme. None are qualified or competent to give opinion evidence concerning the operation of the regulatory scheme. His intended witnesses are limited to being able to give only anecdotal evidence which was specifically commented on by the Court of Appeal as being insufficient. Anecdotal evidence containing hearsay of what physicians or others may or may not have said cannot be accepted as the truth of what was said (R. v. Mernagh, para. 74 ff.). What is also concerning about the defendant’s proposed hearing is that it is tailored after the materials on the website of John Turmel,[2] which suggests that this number of witnesses is necessary in order to make the proceeding at least as long as the hearing in R. v. Mernagh. There is nothing in the defendant’s proposed hearing that relates to the defendant’s own case.
[10] Similarly concerning is that the written materials filed by the defendant are also modelled after the materials on John Turmel’s website. The language from the website speaks to legal warfare and is a boilerplate approach. In fact there is nothing in the defendant’s application materials that relates to his personal circumstances. Leaving aside the unsatisfactory evidence the defendant proposes to rely upon, there is no clear demonstration of the constitutional infirmity of the MMAR, and the link between the CDSA offences and the alleged infirmity in the MMAR (R. v. McCrady, 2011 ONCA 820, at para. 30).
[11] The constitutionality of the CDSA marijuana provisions regarding production (s. 7(1)) and trafficking (s. 5(1)) has repeatedly been upheld by the Court of Appeal.[3]
[12] It is notable that the defendant has not alleged that he has or should have had an Authorization to Produce (ATP) under the regulatory scheme at the material time. His complaints regarding those parts of the CDSA and the MMAR which relate to the production or use of marijuana for medical purposes are immaterial to the defendant, and immaterial to the charges against him.
[13] I do not consider the defendant’s description of the proceedings in R. v. Spottiswood of assistance; nor am I persuaded that I should await the provincial court decision from Nova Scotia which the defendant says is a similar case.
[14] I find that the defendant’s Notice of Application and Constitutional Challenge has no merit, and no likelihood of success. The Crown’s motion to Quash is granted and the defendant’s application is dismissed.
Honourable Justice Timothy Ray
Released: August 07, 2014
COURT FILE NO.: 06-G17008
DATE: 2014-08-07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
JAMES TURNER
Respondent
REASONS FOR JUDGMENT
Honourable Justice Timothy Ray
Released: August 07, 2014
[1] R. v. Mernagh, 2013 ONCA 67, at paras. 101-102
[2] Affidavit of Jason Mulligan, Crown Supplementary Motion Record.
[3] Regina v. Turmel, at para 2; R. v. Real Martin (November 19, 2010), unreported (Ont. C.A.), at paras. 6‑8: R. v. Ethier, 2011 ONCA 588, at para. 4; R. v. McCrady, at paras 28-30; R. v. Parker, 2011 ONCA 819, at paras 28-32.