JCT: This was Quebec Court of Appeal Justice Louise Otis'
turn to screw up on Marcel's case. He was supposed to heard
live on Wednesday but Crown Denis Pilon argued that he had
important things to attend to and wanted it done by
telephone conference call on Tuesday. So Marcel didn't get
his chance to look his persecutor in the eye as she did the
dirty deed.

Okay, I'm told she was very nice but I've seen lots of
judges be very nice as they nail the applicant to the wall.

In her decision, she wrote that Mercier's file was
incomplete without the transcript of the lower court
proceedings! That should be a hoop that could take many
months to jump through especially when he was refused Legal
Aid. I guess they expect him to pay for it too! Ray Turmel
didn't need to wait for the transcripts for his release
pending appeal and I'd bet Marcel doesn't either but it sure
is just another big hurdle for him to overcome.

She wrote that that the proper procedure was to make an
application to withdraw his guilty plea and move to
introduce new evidence of a letter from his doctor about his
condition. She said that his affidavit swearing that he has
AIDS wasn't good enough. Bullshit. She's just making him
jump through more hoops, probably hoping his sentence gets
served before he can finish and he'll drop his appeal.

And without any need for medical evidence, there is no new
evidence to introduce. There's new legal argument, the new
Krieger precedent to argue, but no new evidence.

Of course, she told him he needed a lawyer and dismissed his
application without prejudice so he could get a lawyer and
re-file a new one before her for a live hearing on Sep 09 or
16. I guess the fact Legal Aid refused to help him doesn't
matter.

So he has to do everything all over again, a third time,
with the jailer making him wait the maximum 7 days before
doing anything. You'll remember that he had to do it all a
second time because Justice Dalphond said he needed an
affidavit explaining why he was late. Here he explained that
it was because the jailers had refused to swear his
paperwork until the very last day! It wasn't his fault, it
was their fault!

Then he has to get the documents served to the Crown by an
outsider and then sent to Montreal. Talk about another major
hoop for him to jump through. I'm so angry that I cracked
open my Criminal Code to find proof the highest court in
Quebec doesn't know what its doing.

Right in the Martin's Criminal Code of Canada, Section 678,
"Procedure on appeals / extension of time,

"678 (2) The court of appeal or a judge thereof may at any
time extend the time within which notice of appeal or notice
of an application for leave to appeal may be given.

ANNOTATIONS
Grounds for granting extension of time
"...It is a cardinal principle that the party seeking the
extension must have displayed a bona fide intention to
appeal within the time limit..."

JCT: Here it's obvious. His Notice of Appeal is dated on the
very last 30th day after conviction. The only reason he was
late in filing was because he was delayed in signing.

"In R.v. Hetsberger (1979) 47C.C.C.(2d)286, 37 C.R.N.S. 349
(Ont.C.A. in chambers) an extension of time was granted
notwithstanding the absence of intention to appeal within
the time limit where the consequences of the conviction
(deportation) were out of all proportion to the penalty
imposed and it was arguable that in law no offence was
committed."

"Subsection (2) gives the judge a very full discretionary
power to grant an extension of time and there are no
absolute rules for when the application should be granted."

JCT: So when a judge says "you're missing something," it's
bullshit.

"However, some of the criteria applied are whether the
applicant has shown a bona fide intention to appeal within
the appeal period,

JCT: It was signed within the appeal period.

"whether the applicant has accounted for the delay,"

JCT: He did explain how it was their fault, not his.

"and has shown that the other side was not prejudiced,"

JCT: I don't know how he's supposed to prove a "negative"
until they Crown raises the point that they were.

"the applicant has not taken the benefits of the judgment he
seeks to appeal"

JCT: There's no great benefit in being jailed.

"and that the appeal has a reasonable chance of success."

JCT: Ah, here is the crunch. Legal Aid's Roger Landry has
judged that Krieger does not have sufficient chance of
success to warrant helping Marcel. Despite the fact Judge
Acton mentions that: "[2] s.7(1) violates S.7 of the
Charter; [3] s.7(1) infringes Krieger's rights [44] s.7(1)
deprives Krieger of rights;" and despite the fact that the
Alberta Court of Appeal ruled: "The trial judge struck
s.7(1);" Crown Frankel said: "s.7(1) declared of no force
and effect;" and the Supreme Court of Canada said: s.7(1)
was declared inconsistent with the Charter," Roger Landry
has found that s.7(1) does not violate the Charter, that
s.7(1) does not infringe rights, that s.7(1) does not
deprive Krieger of rights, that "the trial judge did not
strike s.7(1), that s.7(1) was not declared of no force and
effect; that s.7(1) was not declared inconsistent with
Charter! Roger speaks French and all these English
expressions must have eluded him. Hard to figure that after
so many ways of saying the same thing, that he could come
the an opposite conclusion. Oh well, lawyer's aren't rocket
scientists, after all. Logic isn't their strong suit with
most being refugees from high school math.

"The relevance and relative importance of each of these
criteria are for the judge to determine.

JCT: And he has complete power to do whatever.

"It is also incumbent upon the applicant to provide the
judge with sufficient material upon which he can exercise
his his discretion.

JCT: Sure, a guy in jail with no support. Talk about
unequal treatment by the law between the Ontario and Quebec
Courts of appeal. In Ontario, the inmate has official access
to the court. In Quebec, there's not only no access but the
judges can throw in a few extra hoops to jump, especially
with sick guys with AIDS.

"Facts accounting for the delay would ordinarily be placed
before the judge by way of affidavit or through counsel's
statement to the court. R. v. Henry (1989) 52 C.C.C. (3d)

JCT: Aha!!! Like I said, Justice Dalphond could have
accepted Marcel's statement about the delay, since he was
his own counsel, but instead made him start all over again.
Instead of insisting on an affidavit, Justice Pierre
Dalphond could have simply accepted Marcel's statement
explaining that the delay was due to his jailers who made
him wait. Instead, the judge prefered to throw his case out
to swear an affidavit he didn't even need. There was no need
for the affidavit since he could have made a statement but
that was the pretext the judge used to screw the sick guy to
the wall. The only reason has to be in the hopes they can
keep him in jail until his sentence is served and then there
is no reason for the appeal to continue once there is
nothing to gain. Best of all:

Jurisdiction to rescind order refusing extension
A Court of Appeal has jurisdiction to rescind a previous
Order, even one made by a full of Court of 3 judges,
refusing an extension of time to appeal where the interests
of justice so require: R. v. Audy (No.1) (1977) 34 C.C.C.
(2d) 228 (Ont.C.A.)

Further, a single Judge of the Court of Appeal has
jurisdiction to rescind his own order previously made
refusing an extension of time: R. v. Dunbrook (1978) 44
C.C.C.(2d) 264 (Ont.C.A.)

An application for an extension of time, previously refused
by a single judge, may be reviewed before the full Court
where conditions have changed since the initial refusal: R.
v. Walker (1978) 46 C.C.C.(2d)124 (Que.C.A.) or where there
are special circumstances: R. v. Coulombe (1988) 64 C.R.(3d)
58 (Que.C.A.)

JCT: As for Release pending determination of appeal, S.679
says over and over that the applicant has to show that his
detention is not necessary in the public interest. I can't
see how the threat of illegal gardening is that much in the
public interest.

Anyway, we see that the judges have complete power and can
make people jump through hoops. It's just ugly when they
make inmates who have their hands tied do the jumping.
Especially very sick inmates.

Makes one want to puke, doesn't it?

Final point, further to the judge's urging, the Crown has
helped find a legal aid lawyer in Montreal to help Marcel
with his application! Great so long as Marcel has to insist
that he is using Krieger like the rest of the boys are.

Justice Otis reserved her decision on Ray Turmel's application
for release pending the reconsideration of his application for
leave to appeal to the Supreme Court of Canada.

--
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