Court File No: 99-CV-172540CM1
Date: 20020419
            SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN 
                      Terrance Parker
                              Applicant/Respondent in Motion

                           -and-

                   Her Majesty The Queen
                              Respondent/Applicant in Motion

BEFORE: CHAPNIK J. 

COUNSEL:
Terrance Parker, Applicant/Respondent in Motion in person 
Lara M. Speirs, for the Respondent/Applicant in Motion

HEARD: April 17 2002

                        ENDORSEMENT

[1] The Applicant, Terrance Parker, brought an application 
for an order granting a declaration that the prohibition on 
the possession of marijuana in the CDSA is of no force and 
effect or in the alternative, extending the constitutional 
exemption granted him by the Ontario Court of Appeal. 

[2] On March 15 2002, no one appearing for the respondent, 
Mr. Justice Pitt made the following endorsement: 

"Order to go extending the constitutional exemption granted 
by the applicant by the Ontario Court of Appeal until such 
time as the government has complied with the Court's 
ruling."

[3] The respondent moves pursuant to rule 38.11 of the Rules 
of Civil Procedure to set aside the order of Pitt J. on the 
basis that the respondent failed to appear at the hearing 
through mistake and insufficient notice. 

[4] The applicant filed a cross-motion for an order 
declaring the prohibition of marijuana in the CDSA to be of 
no fofrce and effect since August 1 2001.

[5] I am satisfied on the evidence before me that the order 
of Pitt J., shold be set aside for the following reasons: 

1) There were problems surrounding the preparation and 
service of the notice of application which was first 
delivered to the criminal branch of the Department of 
Justice on March 12 200, not properly issued or filed and 
not including the affidavit referred to in the materials.

Then on March 13 2002, at about 4:15pm, the within 
application and record was delivered to the civil litigation 
section of the Department of Justice, returnable on March 15 
2002.

Pursuant to rule 38.06(3) of the Rules of Civil Procedure, a 
notice of application shall be served at least 10 days 
before the hearing of the application.

2) Through administrative inadvertence or error,the matter 
was only brought to the attention of counsel for the Crown 
on March 19, 2002, after it had been heard by Pitt J. on 
March 15 2002. 

3) Immediately upon receiving a copy of the court order on 
March 15 2002, the respondent moved to set it aside. 

4) The respondent intends to vigorously contest the 
application. It wishes an opportunity to cross-examine Mr. 
Parker on his affidavit sworn February 18 2002, produce 
responding material and make submissions. 

5) The respondent alleges that the order of Pitt J. was 
granted on an "incomplete and erroneous factual record", in 
particular, the court did not have before it the actual 
regulations enacted July 31 2001.

[6] Clearly, the respondent in this matter failed to appear 
before Mr. Justice Pitt through "accident, mistake or 
insufficient notice" within the meaning of rule 38.11. The 
respondent moved to set aside the order forthwith after it 
came to its attention. It intends to contest the 
application, to file responding materials and cross-examine 
on the accompanying affidavit. It has a right to do so. 
 
[7] The only submission made by Mr. Parker in response was 
that "the only protection I have under the law is Justice 
Pitt's decision." 

[8] The respondent's answer to that it three-fold: First, 
the regulations which came into force July 15 2001 and were 
enacted July 31 2001 fully complied with the ruling of the 
Court of Appeal in R. v. Parker (2000), 49 O.R. (3d)481;and 
the regulations provide an adequate administrative remedy. 

[9] Secondly, the applicant has never applied under the 
regulations for an exemption; and in a similar case, 
Wakeford v. HMQ [2002] O.J. No.85 (Ont.C.A.), the court held 
that the proper recourse for the applicant was to apply for 
an exemption under the regulations. See also, Harelkin v. 
University of Regina and Danyluk v. Ainsworth Technologies.

[10] Thirdly, the applicant has known since September 15 
2001 that his court-ordered exemption would expire March 14 
2002. Yet he waited until the last moment to bring his 
application. 

[11] The applicant now moves on short notice for an order 
declaring the prohibition of marijuana in the Act and 
regulations to be of no force and effect. 

[12] This is an important and serious matter. Unfortunately, 
the application as it now stands, is improperly constituted. 
As noted by the Crown, the applicant must bring his 
constutional challenge properly within the provisions of 
s.109 ofthe Courts of Justice Act, R.S.O. 1990 c.C.43 as 
amended. Notice and service provisions are set out in the 
rules. 

[13] In the result, the respondent's motion to set aside the 
order of Mr. Justice Pitt dated March 15 2002 is allowed. 
The order is set aside in its entirety with costs to the 
respondent on a partial indemnity basis, if desired. 

[14] The cross-motion brought by the applicant is adjourned 
pending the filing of proper materials in accordance with 
the provisions of s.109 the Courts of Justice Act and the 
Rules of Civil Procedure. Costs reserved.
Madam Justice Sandra Chapnik
April 09 2002