#03-20030
ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN
against
JOHN TURMEL

APPLICATION HEARD BEFORE THE HONOURABLE MR. JUSTICE J.P.
WRIGHT, on Monday, April 19th, 2005, at OTTAWA, Ontario.
CHARGE: s.5(2) CDSA

APPEARANCES:
R: Ms. A. Ratsoy Counsel for the Federal Crown
T: Mr. J. Turmel For the accused

COURT: All right, Mr. Turmel's matter then,
T: Your Honour, may I turn on my tape recorder for my
notes?
COURT: Crown, do you have a position with respect to the
issue of taping?
R: I don't, Your Honour.
COURT: All right, that's fine then.
T: Thank you.

COURT: All right, I've read the materials, and if I can just
try to summarize. I take it that the applicant's contention
is that the substance in question is more than 30 grams or
is alleged to be more than 30 grams.
T: No, three Keys, 3 kilograms.
COURT: Right.
T: Yeah.
COURT: In fact, 3.3.
T: Yes.
COURT: There is no affidavit before me; I haven't heard any
evidence on that point. Does the Crown take any issue with
respect to that -that factual assertion?
R: Your Honour, the Crown's position is that whether or
not...
COURT: I know - I understand what you're going to say, but
just - let's go one step at a time.
R: Okay. The evidence would indicate there was slightly
more than three kilograms seized...
COURT: All right.
RATSOY ...at the time of his arrest.
COURT: Okay. That's out of the way.
T: Yes. And I only produced the Sewell decision because
I understand the Crown has the discretion to select between
proceeding by way of indictment or summary conviction. As a
matter of fact, most such offences actually state, that is
guilty of an indictable offence and liable for imprisonment
of a certain number of years or (b) an offence punishable on
summary conviction. And because the Crown has the right to
elect between summary conviction and indictable offence,
they now say that they have the right to elect between
indictable offence and indictable offence.

(2) Now, my point is that I did my crime on purpose for the
purpose of getting a jury to discuss and decide on my
situation, and I was aware that if I had under three
kilograms, that it was a completely - complete jurisdiction
of the court under Section 553 to go after me under Section
5(4) of the CDSA as having under 30 -under three kilograms,
which makes me liable to imprisonment of only five years.
And, of course, the Sewell decision goes over that in a
sense. It's a similar situation and that's why I cited it,
and I just want to go to paragraph [44] to start with. This
won't take more than 10 minutes, but I mean, I want to read
it in because if the Crown is having difficulty with this
section we may as well be precise.

Section [45]. He actually goes over the Criminal Code - the
judges do - and he explains:
Subsections 5(1),(2) - which I'm charged with 3(a) and 4 of
the CDSA read as follows:
5(1) "No person shall traffic or..." That's not me.
5(2) "No personal shall, for the purposes of trafficking,
possess a substance included in Schedule I, II, III or IV."
And that's what I was charged with.

Section (3)
'Every person who contravenes subsection (1) or (2)..."
And that's me.
(a) subject to subsection (4), where the subject-matter of
the offence is a substance included in Schedule I or II, is
guilty of an indictable offence and liable to imprisonment
for life;
Subsection (4) now says:
'Every person who contravenes subsection (1) or (2), where
the subject-matter of the offence is a substance included in
Schedule II in an amount that does not exceed the amount set
out......in Schedule VII, is guilty of an indictable offence
and liable for imprisonment for a term not exceeding five
years less a day"

Finally, they point out in paragraph [46]:
"Cannabis marijuana is included in Schedule II and the
amount set out for cannabis marihuana in Schedule VII is
three kilograms."

[47] "Section 553 of the Criminal Code, in material part,
reads:
553. The jurisdiction of a provincial...judge,...to try an
accused is absolute and does not depend on the consent of
the accused where the accused is charged in an information:
(C) with an offence under (xi) subsection 5(4)..."

So I cannot qualify under subsection 5(4). Because I had
more than three kilograms, I have to go under subsection
5(3).

Now, farther on in paragraph [50], they're reading out the
discussion between the judge in the Sewell case and - the
court, sorry - and he mentions, "Well,... see..." - this is
at the bottom of page 15:

"if you're under 3 Keys then it's an absolute jurisdiction
offense, but that comes about 553 (c) of the Code, but if
it's over three kilograms. . . then the section implies..."

"sorry... the section simply says, "indictable" for Schedule
Two, and Schedule Two..." [offence].

So, finally, paragraph [55) where it is explained:
"On the other hand, the second count does present a
problem."

Which was the Section 5(2).
"The count,... framed in the information, does not, on...
face, charge the appellant with an offence "under subsection
5(4) of the CDSA" as contemplated by paragraph 553."

In my case, they have charged me under Section 5(4) so
there's the difference between Sewell and mine. There, they
didn't charge him when they should've, and here, they did
charge me when they shouldn't have. But he does explain:

"Subsection 5(4) requires three elements:
(i) a contravention of subsection (1) or (2);
(ii) that the subject matter of the offence be in Schedule
II; and (iii) that the substance be in an amount that does
not exceed "the amount set out for that substance in
Schedule VII...three kilograms."

So it seems pretty clear that - and, finally, if we move
along to paragraph [59] it mentions:
"If an accused has an election... absent... waiver of
procedural requirements... a failure to put the accused to
his or her election... it is procedural error resulting in
loss jurisdiction [for this court]

And, finally, in paragraph [62] it says:
"...A Provincial... judge cannot bestow upon himself/herself
jurisdiction to hear an electable indictable offence by, in
effect, waiving the requirement contained in s.536..." [for
an election]

And paragraph [64] explains best:
"When you have less than three kilograms and they have to
put you to the election to choose, it says: Both the
appellant's counsel, as well as the..."

No, no, sorry. Sorry, it was paragraph [66] Okay, it's
paragraph [66] where the judge explains that when you are
under three kilograms:
"a non-electable indictable offence where the Provincial
Crown - Court judge has absolute jurisdiction (the Crown has
"...no choice as to procedure and the accused has no
election)..."

Well, in this case, there was more than three kilograms of
marijuana; I should've been put to an election.

The Crown argues that because they have the jurisdiction and
the discretion to choose between indictable offences and
summary conviction offences, which I'm sure is the basis of
their argument, that they now have this election to choose
between indictable offence and indictable offence. And
nowhere in the Section 5 does it say that the Crown has the
opportunity to elect between over and under three kilograms
of substance.

And in this case, I want to point out, I understand the
Crown's discretion in a murder case where they can discuss
and think about first degree, pre-meditated, second degree,
just heated - murder and manslaughter, negligence, those are
all based on the same facts, but in this case, the facts are
that the substance was in excess of 3.3 - three kilograms,
and an Information which alleges that the substance amount
was less than three kilograms, is false and in error.

So, my point is, that (a) I have to be offered an election
because the substance exceeds the amount that grants this
court complete jurisdiction over me, and (b) the amendment
is - the indictment Information is going to have to be
changed to reflect the fact that I can't fit under Section
5(4), has to be under Section 5(3). And, so, the choices I
suggest are, that the Information be quashed on the face of
it for the fact that it does not conform with the evidence
that there was more than three kilograms, or that the
Information be amended by striking the word "not exceeding"
putting "exceeding" and switching it to Section 5(4), or (3)
offer me an election for trial, which I should have had
originally, if there's some other process by which you can
get there.

But the Crown does not have the discretion to elect between
an indictable lifetime offence and an indictable five year
offence. Crown elections are always dealing with summary
conviction and indictable offences, that's the election the
Crown has. And, in my case, by them printing the wrong
section on the Information and arguing that my 3.3 Keys is
evidence of under three kilograms is an out and out defect
on the face of the indictment, which means it should also be
quashed.

So, as long as I get an indictment which sends this to the
right place, that's what I'm asking for, and I think that
the fact that they're - I don't believe there's ever been
another case where the Crown has chosen to elect between two
indictable offences, and the fact this is the first time
they're trying to elect between two indictable offences may
be a kind of a negative inference that they can't do that
and they made a mistake.

I don't want to have the charge thrown out after I've been
put in jeopardy. I don't want to win on a technicality. I
didn't put a night in on a cold steel cot to get an issue
which is going to be thrown out on a technicality, and
that's why I'm here before I've been put to a plea, to get
this indictment fixed and get me into the right court by
offering me the right election. Thank you very much.

COURT: Thank you, Mr. Turmel. Crown?

R: Your Honour, I have two cases which I've given to
Mr. Turmel, and which I would ask you to consider. Your
Honour, the issue here is not actually the Crown's election,
the Crown hasn't made an election. What the Crown has done
is made a decision about which charge to lay, and that
decision has been to proceed with a charge under Section
5(4) of the Controlled Drugs and Substances Act as opposed
to Section 5(3) (a) of the Controlled Drugs and Substances
Act.

I am not aware of any authority, statutory or common-law,
which would give this court the jurisdiction to over-ride
the Crown's decision as to which charge to lay, absent a
finding of abuse of process, and the onus to prove an abuse
of process would be on Mr. Turmel. In fact, that is the
conclusion of the case-law which I've passed to Your Honour.

Your Honour is aware that there are many offences in the
Criminal Code, for example, assault, assault causing bodily
harm, assault with a weapon, aggravated assault, where one
set of circumstances might support the laying of various
charges, and it is in the discretion of the Crown to decide
which of those charges is most appropriate in the
circumstances.

And if I can - well, first of all, to address the case
submitted by Mr. Turmel, Sewell, to the extent that it says
anything relevant to these circumstances, it's my submission
that it supports the position of the Crown. If we can go to
page 18 - and this is in paragraph [55], Chief Justice Bayda
for the Saskatchewan Court of Appeal says:
"If it is that which is "charged in an information" that
determines whether a Provincial Court judge has absolute
jurisdiction, and...that which the evidence at trial reveals
by way of the amount of cannabis marijuana involved, then in
the present case, the Provincial Court judge must be found
not to have had...jurisdiction."
"In my respectful view, whatever the evidence at trial
reveals respecting the amount of cannabis marijuana involved
may have relevance to sentence, but it does not have
relevance to jurisdiction."

Earlier, at the very beginning of that paragraph he says:
"The count, as framed in the information..."

I'm sorry, that's not - that's not the quote I wanted. I'll
leave it at that, Your Honour.

It's - in my submission, the Sewell case is not really
comparable to the circumstances we have here, but to the
extent that it supports anybody's position, it supports the
Crown's position.

If I can go briefly through the cases I've submitted to you.
Firstly, the decision of our Court of Appeal in Abarca. This
was a case somewhat opposite to the circumstances here where
the Crown elected to proceed by indictment on a hybrid
offence where - and the defence took issue with that and
suggested the election should have been by way of summary
conviction.

What the Court of Appeal said - this is at page 5, he quotes
the decision of Chief Justice Fauteux in the Supreme Court
of Canada in a case called Smyk where he said:
"Enforcement of the law and especially of the criminal law
would be impossible unless someone in authority be vested
with some measure of discretionary power. The Crown attorney
when exercising the discretion to prosecute by way of
indictment is acting as an officer of the Crown and
performing a function inherent in the office of the Attorney
General whose agent he is for that purpose. He is not acting
pursuant to a statutory power and is not exercising a
statutory discretion and, accordingly, his decision is not
subject to review by the courts. In any event, even if the
doctrine of abuse of process could be invoked in a proper
case, we are not satisfied that this is such a case as we
can find no harassment, oppression, prejudice or manifest
hardship."

That case obviously dealt with a Crown election, and this
case deals with the Crown's decision as to which charge to
lay.

But, as the next case, Ing, which is a decision of the
Alberta Court of Appeal makes clear, the Crown has to
exercise its discretion in many many circumstances. Some of
those are suggested at paragraph [22] where this judgment
says - it starts off saying:
"Police necessarily exercise discretion in deciding when to
lay charges as prosecutors do in deciding whether or not to
withdraw a charge, enter a stay, consent to an adjournment,
proceed by way of indictment or summary conviction, launch
an appeal and so on. The Criminal Code provides no
guidelines for the exercise of discretion in any of these
areas."

I've provided this case to Your Honour because it's as you
can see it's a lengthy - it's a particularly good summary of
all the relevant law in the area of prosecutorial
discretion. It reviews the decisions of the Supreme Court of
Canada on this issue very succinctly, and I'll just briefly
take Your Honour through some of the more salient points.

Still on the same page, at paragraph [24] in the case of R.
v. T.V., Justice L'Heureux-Dube writing for the court
addressed the rationale for maintaining prosecutorial
discretion and for limiting judicial review of its exercise.
She quoted with approval Viscount Dilhorne's reasoning in
Director of Public Prosecutions vs. Humphreys, and this is
the quote:
"A judge must keep out of the arena. He should not have or
appear to have any responsibility for the institution of a
prosecution. The functions of prosecutors and of judges must
not be blurred." She also quoted the similar concerns
expressed by Justice Powell in Wait vs. The United States of
America, and this is the quote:
"This broad discretion rests largely on the recognition that
the decision to prosecute is particularly ill-suited to
judicial review. Such factors as the strength of the case,
the prosecution's general deterrence value, the government's
enforcement priorities and the case's relationship to the
government's overall enforcement plan are not readily
susceptible to the kind of analysis the courts are competent
to undertake. Judicial supervision in this area entails
systematic cost of particular concern. Examining the basis
of a prosecution delays the criminal proceed-ing, threatens
to chill law enforce-ment by subjecting the prosecutor's
motives and decision-making to outside inquiry and may
undermine prosecutorial effectiveness by revealing the
government's enforcement policy. All of these are
substantial concerns that make the courts properly hesitant
to examine the decision whether to prosecute."

Justice - I guess it's a decision of the court in this case,
in the case of Ing, goes on to talk about the basis for
reviewing prosecutorial discretion - and I won't go through
it all, Your Honour; the bottom line is that such a review
has been found by our Supreme Court to be appropriate only
when there is an abuse of process having been found.
Paragraph [21] towards the end says:
"Courts have a residual discretion to examine whether there
was an abuse of the courts process but only in the clearest
of cases."

And on the next page, paragraph [29], recently in R. V.
Regan, Justice Binnie of the Supreme Court said of
prosecutorial discretion:
"The trial judge in this case was careful not to understate
or diminish the broad scope traditionally and properly
afforded to prosecutorial discretion. Courts are very slow
to second guess the exercise of that discretion and do so
only in narrow circumstances."

In the same vein, in Kreger vs Law Society of Alberta,
Justices Iacobucci and Major for the court reiterated the
reasons of Justice L'Heureux-Dube in Power:
"That as a matter of principle and policy, courts should not
interfere with prosecutorial discretion out of respect for
the separation of powers and the rule of law."

Paragraph [34], the court finds:
"That the accused who is making the allegation bears the
onus of proof that the Crown's exercise of discretion
amounts to an abuse of process."

This decision goes on, Your Honour, to talk about whether
the prosecution can be required to provide reasons for its
exercise of discretion. The court relying on decisions of
the Ontario Court of Appeal and the Supreme Court of Canada
finds that the prosecution is not required to reveal the
basis for the exercise of its discretion. Those comments are
found particularly at paragraphs [55] through [65].

Paragraph [62] says:
"The trial judge is not to inquire into the Crown's reasons
for its exercise of discretion or the sufficiency of any
reasons offered unless the accused has met the onus of
proving a basis to review the Crown's decision."

My last point Your Honour can be found in para-graph [136]
of this decision, and that is that Mr. Turmel has the
constitutional right to a fair trial, he does not have the
constitutional right to a trial by any mode he chooses.
Towards the end of paragraph [136], the court comments to
that effect:
"An accused has a constitutional right to a fair trial, not
to the most advantageous trial procedures possible in any
given case."

Citing R. V. Bair, a decision of the Supreme Court of Canada
in 1988.

And, finally, Your Honour, I would just ask you to consider
paragraph [149] at the very end of that decision, which says
- this speaks particularly to the Crown's decision in this
case which was not to consent in a murder trial to the
election by judge alone, the Alberta Court of Appeal said:
"Identifying the kind of reasons which might well influence
a Crown decision not to consent to trial by judge alone
highlights the serious potential for harm if courts were to
second guess prosecutorial decisions in the absence of any
proven abuse of process. Many of these decisions are linked
to an assessment of what is in the public interest. In the
context of the prosecution of criminal offences, that call
ordinarily goes to the Crown.. The decision of the Crown in
this case has been that it is in the public interest to
prosecute this offence by way of Section 5(4) as opposed to
Section 5(3)(a). According to Section 5(4), it is an
absolute jurisdiction offence, and Mr. Turmel does not have
an election to make, neither has the Crown an election to
make. The decision that Mr. Turmel is really - what's really
at issue with him is the decision as to which charge to lay.
And if Your Honour reviews the Ing case, as well as the
Abarca case, I think the weight of the case-law is very
clear, that that discretion, absent a finding of an abuse of
process, must be left to the Crown acting as agent for the
Attorney General of Canada. Thank you.

COURT: All right, thank you. Yes?

T: Well, Your Honour, first of all, none of these cases
are on point. This one here, the Ing case, had to do with a
fellow who chose an election and he chose trial by judge and
jury, and then after awhile decided he wanted to now choose
judge alone, and that takes the consent of the Crown. Now, I
agree, when it takes the consent of the Crown - that's not
my case, that's his case - so she brings up a case where
this guy is making an application where he needs the consent
of the Crown to do something and then they win because he
needed the consent and they wouldn't give it. I'm not
challenging that kind of consent nor that kind of
discretion.

The next step is in her own case in paragraph [22]. It says
clearly:
"These decisions are when the Crown has the opportunity to
withdraw a charge, enter a stay, consent to adjournment,
proceed by way of indictment or summary conviction."

That's how I always thought the Crown elections were too,
which I'd said earlier, but the Crown here is now saying
they don't call it an election, they call it a decision, to
proceed not by way of indictment but by way of indictment.
And, again, I'm pointing out that in the Ing case, that it
was a situation where they did admit that the Crown's
election has to do with indictment or summary conviction.

Now, when you go to her Abarca case on page 5, the paragraph
she raised, she mentions:
"The Crown Attorney when exercising the discretion to
prosecute by way of indictment..."

Versus what, by way of indictment? The implication here is
clear, that it's got to be versus - by way of summary
conviction if they leave it alone. The discretion to
prosecute by way of indictment versus what. Well, it
certainly isn't by indictment again. So, once again, we have
the - in their own document, the implication that the
Crown's election or decision has only to do with between
indictment and summary conviction.

Now, there's - now, I have - and, finally, according to the
Sewell decision - which I raise and said it wasn't on point
but it made good points, she's pointing out that where the
judge said:
"If it is that which is "charged in an information" which
determines whether a Provincial court judge has...
jurisdiction, and not that which the evidence at trial
reveals by way of the amount..." [Then of course the
provincial court have such jurisdiction]"

Well, yes, my Information charges me under Section 5(4) with
having less than three kilograms of marijuana. The fact
that's a lie, the fact that's not true, may be excuse to
argue that this is an abuse of process. I mean, when the
Information has an out and out untruth on the - right on it,
then that would seem to be some kind of an abuse. So, I just
point out that in the Sewell case, they're very clear that
the third requisite to go under Section 5(4) is that the
substance be in an amount that does not exceed the amount
set out in the schedule, three Keys. Not that the crown say
it doesn't, not that the Crown lie and say it doesn't come
up to three Keys, when the evidence of their own scales do
prove that the amount is in excess of three kilograms. So -
so that's on my final point.

Every case here talks about the Crown having their election
as to summary conviction versus indictable offence. In my
situation, the lower court, the Provincial Court, does not
have jurisdiction over me pursuant to Section 553 like they
do against other people with under three kilograms, and if
they're at - at some point when the - when the more than
three kilograms does get put into evidence and I jump up and
say, 'Hey, there it is, more than three kilograms,' by then
it will be too late to fix the indictment and then I'm going
to end up winning on a technicality which I don't want to
do. So, I'm here asking to have the election that I'm due
under Section 553 and 536 that offers me and will - it will
clothe the judge of the Provincial Court in my consent to be
tried because the amount was over three kilograms. So if it
is the charge on the Information which rules, well, then,
you have to quash the Information and they have to re-file
it properly. If it can be amended properly, wonderful, but
somehow or other, you have to fix this abuse of process
because the Crown has gone and warped their interpretation
of their electoral powers between summary conviction and
indictable offence to try and nail me with an indictable
offence as opposed to another indictable offence, and the
very fact it's never been done before might be an indication
that it's not doable. So, on that note, I say please offer
me an election so I can proceed properly to a trial on the
issue, the merits, 'cause I think otherwise if you don't
correct their mistake, we're going to end up with a
technical win that I don't want. Thank you very much.

COURT: All right. Thank you, Mr. Turmel. I'm going to
reserve until after the lunch break, so two o'clock. I'll
provide a ruling at that time.

R: Thank you.

RULING
WRIGHT, O.C.J. (Orally):

Dealing first with Mr. Turmel's matter. I heard submissions
on this matter before the lunch recess. There is no
evidentiary record or affidavit, but as a foundation to the
argument being advanced, the applicant asserts and the
respondent agrees, that the amount of marijuana in question
would be above three kilograms, slightly above, is the term
employed by the respondent. The issue is the principle of
the Crown choosing which charge to proceed with.

The applicant argues that the choice made removes the
possibility of a trial by a jury which the applicant
contends is why he was in possession of the specific amount
in the first place. There are numerous examples of exercise
of Crown discretion in selecting what charges to proceed or
not to proceed with, both under the provisions of the
Criminal Code and the CDSA and, indeed, routinely cases will
come before the courts where the Crown does proceed in the
fashion that they have done in this case. There is no
evidence before me of an abuse of process or an oblique
motive. To paraphrase Ing, an accused doesn't get a say in
what charges are brought and the consequent mode of trial,
and for those brief reasons, the application is dismissed.

The Honourable J.P. Wright
Ontario Court of Justice

R: Thank you, Your Honour.
COURT: Now, is there a future date set on this matter?
R: There is, May 11th, in number nine court.
COURT: To be spoken to at that time? It's not a proceeding
matter at this point?
T: Can we pick the date right now; save a trip back on
the 11th?
R: For your trial?
T: Sure.
R: I don't know if we can do that.
COURT: What's your estimate of time?
R: I'm not sure why there isn't an estimate on this
trial.
T: There's an Agreed Statement of Facts. It shouldn't
take long.
R: One day, I would say.
COURT: So it would be primarily for argument.
CLERK: Do you wish me to call the trial co-
ordinator, Your Honour, and get a one day trial?
COURT: Well, would it be helpful if there was a Pre-trial...
R: Probably not.
COURT: ...or has there been a Pre-trial?
R: There hasn't been. I'm not sure it would be helpful.
I think the evidence, as to facts, will be quite brief. I
think Mr. Turmel is going to admit the bulk of the evidence
and it will primarily be argument, yeah.
COURT: Okay.
CLERK: The trial co-ordinator is just going to look
up a one day trial date in this Federal matter.
COURT: Mr. Turmel, I'm not sure I should say this given the
context of your appearing in court on a charge, but it's
good to see you again.
T: Thank you, sir.
CLERK: December 15th, number nine court.
COURT: Okay, so if those dates are suitable then, December
15th, number nine court, at ten o'clock for trial, and
October 31st as a reporting date, to confirm that the matter
is still proceeding and the estimate of time is appropriate.
All right.

Jct: Much thanks to Laurie Nielsen for scanning it for us.

--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 519-753-0645 USENET: can.politics