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POLCOA - The legal defence to end prohibition


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#1 Poter Principle

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Posted 04 December 2009 - 10:10 PM

Hi I figured the first part would mean nothing or next to nothing, so I added a punchline.

If you have been arrested in Canada on Cannabis charges, and have a week or two before your court date, you will find here and here the resources to get your charges withdrawn.

If you have yet to get arrested, you need to know the following:

1 - Stand mute.
2 - Contact me, John, Ken at the Canadian Cannabis Legal Defence Resource; Derek Francisco will also help, particularly if you have skype. There are forms, and they are golden. Derek and his wife, and Ken, separately got all charges withdrawn using John's defence. Professor Doug Hutchinson, I should add, has played a significant role, as well.
3 - Make victory.

They've been through it. I'm getting on board. We really want people to use this defence. It requires no lawyer, just determination. Derek won without a lawyer. Ken won without a lawyer. A friend of mine is getting the paperwork in order. His date is the 15th.

Nothing in my 6 years online in forums has got me focused like this has.

peace and pot
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#2 SmokeToLive

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Posted 04 December 2009 - 10:42 PM

What is this defense they are using?

#3 Poter Principle

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Posted 04 December 2009 - 11:10 PM

That the laws were dead as of August 1 ,2001 according to binding decree, and that the failure of Parliament to enact new legislation by that date meant the laws against Cannabis are "of no force and effect" and "unknown to law". Corruption or incompetence resurrected the laws on Oct 7, 2003. That is illegal. That is Fraud. That is Treason. But John is just arguing that the Crown knows the laws are dead and he has figured out the legal mechanism to challenge them on appeal all the way to the Supreme Court. He has them trapped in a legal lie of their own doing. He needs cases though. He has a third right now with a friend of mine. We need more people who get busted to get on board. This has been over a decade in the making. POLCOA is the mantra. It's coming together. From CCLDR: Case Law Facts On July 31, 2000 in R.v. Parker the Ontario Court of Appeal declared the marihuana prohibitions invalid, and suspended the declaration of invalidity for one year. The prohibition would become invalid on Aug. 01, 2001. [11] Accordingly, I would uphold the trial judge’s decision to stay the charges against Parker and I would dismiss that part of the Crown’s appeal. However, I disagree with Sheppard J.’s remedy of reading in a medical use exemption into the legislation. I agree with the Crown that this is a matter for Parliament. Accordingly, I would declare the prohibition on the possession of marihuana in the Controlled Drugs and Substances Act to be of no force and effect. However, since this would leave a gap in the regulatory scheme until Parliament could amend the legislation to comply with the Charter, I would suspend the declaration of invalidity for a year. During this period, the marihuana law remains in full force and effect. Parker, however, cannot be deprived of his rights during this year and therefore he is entitled to a personal exemption from the possession offence under the Controlled Drugs and Substances Act for possessing marihuana for his medical needs. Since the Narcotic Control Act has already been repealed by Parliament, there is no need to hold it unconstitutional. If necessary, I would have found that Parker was entitled to a personal exemption from the cultivation offence for his medical needs. In the precedent case of R. v. J.P., 2003 Oct. 07, the Ontario Court of Appeal states: "[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 it's appeal, and the court upheld the invalidity of the CDSA prohibitions 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. 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 81- 83 states: 81 The Constitution empowers courts to issue constitutional remedies with both retroactive and prospective effects: see, e.g., Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 719. Section 24(1) of the Charter enables individuals who have had their Charter rights violated to seek redress for those past wrongs and “obtain such remedy as the court considers appropriate and just”. Section 24(1) may also, in some situations, enable the claimant to recover damages, which are necessarily retroactive: Schachter, at pp. 725-26. 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, [1995] 2 S.C.R. 418. 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, [2003] 2 S.C.R. 504, 2003 SCC 54, 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. Please stop this judicial and democratic mockery. Innocent people are being arrested and prosecuted unlawfully. peace and pot
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#4 Poter Principle

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Posted 20 January 2010 - 09:31 PM

We are a group of Canadians dedicated to the abolition of Cannabis prohibition. The legal tool we offer is the POLCOA Defence. It argues the Cannabis laws in Canada are of no force and effect, or constitutionally invalid; it argues all charges for Cannabis possession and cultivation are unknown to law. Because this is a legal argument, it is complex and complicated.

This is an introduction. The team making this happen has learned from experience. I'm learning by osmosis since I haven't been through the courts. What I'm passing on hopefully makes sense. I'll do my best to answer questions directly, or get answer from John Turmel, who has been working on this for over a decade. John is an electrical engineer by training. Several other people, including Prof. Doug Hutchinson, have help craft the document.

The understanding that the laws are not simply bad – which they have always been – but dead, exposes a fraud that can never be the focus. One Canadian, one legal victory at a time, we will prove this. Sixteen people who got busted on bogus charges and represented themselves in court have gotten their charges withdrawn. Three early cases resulted in pleas to reduced charges. Four more cases are before the courts.

We're looking for people who want to learn about their rights, step into the legal system on the offence by challenging the validity of the laws in Superior Court negating even entering a plea in the Lower Court. The legal argument is contained in the Applicant's Factum. It available here: http://health.groups...les/prscom.docx.

The medicinal effect of Cannabis on epileptics is at the root of this. Terry Parker is an epileptic who was first busted for pot in 1987 and again in 1997. The ruling in the latter case struck down the pot possession law (section 4.1 of the Controlled Drugs and Substances Act). Since August 1, 2001, the post laws for simple possession have remained of no force and effect.

The Canadian government was ordered by the courts to remedy the flaw in the law. They came up with the Marijuana Medical Access Regulations. The MMAR has been found unconstitutional several times, each one creating a period of retroactive invalidity back to the day the courts gave the government to fix the problem.

The problem is that the very inclusion of the word marijuana (or marihuana) in the CDSA creates it's constitutional invalidity absent a valid exemption scheme. It does not matter that Cannabis is the best medicine on Earth. It only matters that access be available in a prohibition system.

Section 7 of the Charter of Rights and Freedoms is the right to life argument. If you feel fear because of a punitive law against your choice of medicine (and not your medicine of choice) you have the Charter right to oppose any action against you.

The key ruling to focus on is R.v J.P. In the decision on the appeal by the Crown, the Ontario Court of Appeal Justices Doherty, Goudge and Simmons overstepped their jurisdiction and negated the Interpretation Act, Section 2.2.

Section 2.2 states that when a law is struck down it is to be deemed repealed. Only an act of parliament (in this case a re-enactment of the CDSA) can bring back a dead law minus the constitutional flaw that invalidated the law in the first place. The very inclusion of the word marijuana in the CDSA absent a constitutionally valid exemption scheme is the fatal flaw.

Since we have Charter rights under Section 7 – the right to life clause – the government's prohibition on Cannabis could hardly be more injurious to society or individuals caught up in this genocide.

I'll be adding material as I go.

We can be contacted by several means.

http://www.ccldr.net

http://health.groups...MedPot-discuss/
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