The VICS: NOTICE OF CONSTITUTIONAL CHALLENGE

NOTICE OF CONSTITUTIONAL CHALLENGE

Court File No. 131900
Victoria Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

HER MAJESTY THE QUEEN

RESPONDENT

AND:

MATHEW BEREN
and
MICHAEL SWALLOW

ACCUSED/APPLICANTS

NOTICE OF CONSTITUTIONAL CHALLENGE

(Pursuant to s. 8(2)(a) or (b)
of the Constitutional Question Act
R.S.B.C. 1979 c. 63)

TAKE NOTICE that an application will be made before the trial judge presiding, at the Supreme Court of British Columbia at 850 Burdett Avenue, Victoria, B.C. at 10:00 o’clock in the forenoon on the 31^st day of October, 2005, or so soon thereafter as counsel may be heard for relief by way of an appropriate and just remedy pursuant to s.24 (1) of the Canadian Charter of Rights and Freedoms, Part I, Schedule B of the Constitution Act, 1982, including a declaration of constitutional invalidity under s.52(1) of the Charter to the effect that or on the grounds that:

S.5 (trafficking and possession for the purpose of trafficking) and s. 7 (production) of the Controlled Drugs and Substances Act (insofar as they are applicable to Schedule II prohibited substances, namely, cannabis, as defined in the Schedule and the Medical Marijuana Access Regulations pursuant thereto, are unconstitutional as being inconsistent with, contrary to, and/or in violation or conflict with s. 7 of the Canadian Charter of Rights and Freedoms, to the extent that they failed, during the material period, to adequately provide for a safe, secure and reliable supply of Cannabis (marihuana) for those constitutionally entitled to possess and use such for a serious medical condition under the principle underlying the decision of the Ontario Court of Appeal in Parker;

R. v. Parker [2000] O.J. No. 2787 (Ont. C.A.);

AND TAKE FURTHER NOTICE that in support of the application, the Applicants will refer to:

(1) The facts, circumstances, evidence and other information arising in these proceedings, pursuant to information number 111409-1/05 in the Provincial Court of British Columbia and indictment 131900 - 05 in the Supreme Court of British Columbia, to date, and in particular the facts with respect to the nature of the VITCRI and the VICS and their members and how they provided a safe, secure, and reliable supply of cannabis (marijuana) to not only approximately 35 federal MMAR exemptees but also to all its registered club members (now totalling approximately 500 members), thereby ensuring they would not have to access the black market and would get a safe, reliable, secure and dependable supply from their own club or group while taking appropriate safeguards to ensure no leakage into the black market of cannabis so produced;

(2) The pleadings, proceedings, submissions and judgments in this and other medical marijuana cases, including in particular the reasons for judgement in Parker and cases following thereon such as Hitzig, October 7, 2003, Ont. C.A. and up to and including the recent decision of Chaperon PCJ in B.C.P.C. Victoria in Smith;
   R. v. Parker [2000] O.J. No. 2787 (Ont. C.A.);
   Hitzig v. Canada (2003-10-07) ONCA C39532;C39738;C39740;
   R. v. Smith and Budda (07/09/04) Victoria Registry No. 118904;

(3) The decisions of the Supreme Court of Canada in Morgentaler, Smoling and Scott;
   Morgentaler, Smoling and Scott. v. The Queen [1988] 37 C.C.C. (3d) 449    (S.C.C.);

(4) Such further and other materials and authorities as counsel deems advisable at the hearing of this matter.

DATED at Abbotsford, British Columbia, this - dayof October, 2005.

___________________________________
JOHN W. CONROY, Q.C.
Counsel for Applicants

TO:

Federal Crown Lori McMorran
McConnan, Bion, O’Conner,Peterson
420 - 880 Douglas
Victoria, BC
V8W 2B7

AND TO:

The Attorney General of B.C.
Legal Services Branch
1001 Douglas Street
Victoria, BC V8V 1X4