CR: Crown

Federal Crown's Office
201 County Court Boulevard
Suite 600
Brampton, Ontario L6W 4L2

Tel: 905-454-9897
Fax: 905-454-2168
Email: Steve.Coroza@...

April 28, 2006

BY FAX

Court of Appeal for Ontario
Osgoode Hall
130 Queen Street West
Toronto, Ontario M5H 2N5

Attention: John Kromkamp, Senior Legal Officer
Court of Appeal for Ontario

Dear Sir:

Re: RE: R. v. Turmel, John (C44587, C44588); R. v. Pierre
Drouin (C44683); R. v. Real Martin (C44684)

JCT: Appeal C44588 challenging one judge's jurisdiction over
more than 3Kg doesn't need 5 judges.

CR: A. OVERVIEW

The appellant asks the Chief Justice to convene a five-judge
panel for the above noted appeals because it is his
intention to submit to the court that the decision of this
court in R. v. Turmel (2003), 177 C.C.C. (3d) 533 (Ont.C.A.)
was wrongly decided. The respondent is opposed to this
request.

JCT: And in Hitzig and in J.P.

CR: B. THE REQUEST FOR A FIVE MEMBER PANEL IS WITHOUT MERIT

The respondent acknowledges that when good reason exists to
doubt the correctness of an earlier decision from this
court, the usual practice is for the Chief Justice to
convene a five-judge panel of the court to reconsider the
earlier decision1. However, in his submissions, the
appellant has not provided a basis for this court to doubt
the correctness of its earlier decision in R. v. Turmel,
supra.

JCT: I wouldn't be saying it's on the basis of the court
being right, probably on the basis it's wrong.

CR: The appeals are summarized for your convenience below:

Case Offence and offence date
Decision appealed from and nature of application
Next Return Date

Real Martin (C44684)
Production of marihuana. June 18, 2003. Nadeau J. (S.C.J.)
Application for prohibition dismissed December 15, 2005.
May 26, 2006 (Superior Court of Justice)

Pierre Drouin (C44683)
Production of marihuana and possession of marihuana for the
purpose of trafficking. June 11, 2003. Nadeau J. (S.C.J.)
Application for prohibition dismissed December 15, 2005.
May 26, 2006 (Superior Court of Justice)

John Turmel (C44587 C44588)
Possession for the purpose of trafficking marihuana
May 14, 2003. MacLeod J. (S.C.J.)
Application for prohibition and certiorari dismissed
November 28, 2005.
Convicted of charge on March 10, 2006 by Justice Belanger
(Ontario Court of Justice) and sentenced on March 29, 2006.

It is the respondent's position that these appeals are end
runs around the rule that criminal trial proceedings should
not be disrupted by applications for prerogative relief.

JCT: So the Crown can bust you on an invalid charge and you
have to undergo trial while challenging its validity? of
course a prerogative challenge to its validity must have a
good reason for going first. Why be forced to undergo trial
before finding out the law was dead?

CR: The appellants may raise all of the issues set out in
their Notices of Appeal with the judge at trial. With
respect to the appellant, John Turmel, his appeals from the
decisions of Justice MacLeod dismissing his application for
prohibition and certiorari are moot. He has been convicted.

JCT: Now we know the rush to convict me before the appeal.
That's why a judge should not proceed while his jurisdiction
is being challenged above. And now, the Crown is arguing
that because the judge exercised his challenged jurisdiction
before it was necessary, the challenge becomes moot. So any
judge could nullify a challenge to his jurisdiction by
rushing ahead. Like mine did.

CR: His appeal lies from his conviction and sentence imposed
by Justice Belanger. The "correctness" of this court's
decision in Turmel, supra, has no bearing on the issue
whether these appeals are properly before this court.

JCT: I agree the rush to judgment as no bearing on my
appeals to why is the Crown arguing at the same time that
they are now moot due to the decision which has no bearing.

CR: C. POSSESSION FOR THE PURPOSE OF TRAFFICKING IS KNOWN IN
LAW

JCT: One of the rulings by the Court of Appeal that needs to
be over-ruled by a 5-judge panel.

CR: In any event, the appeals are all premised on the
remarkable argument that all prohibitions against marihuana
in the Controlled Drugs and Substances Act ("CDSA") have
been "struck down" or "are of no force and effect".

JCT: I don't know why it's remarkable. What's remarkable is
that two years after a law was struck down by one court, it
was struck up by another court, not Parliament. And also
remarkable is that the only reason the Crown has not obeyed
the Krieger Court is that a stay out of the functus officio
Alberta Court of Appeal remains extant after dismissal by
the Supreme Court of Canada. That I'm saying laws have been
struck down isn't remarkable, that the Crown is saying they
are not is remarkable.

CR: The appellant argues that when this court in R.v. Parker
(2000), 146 C.C.C. (3d) 193 (Ont.C.A.) declared to be
invalid the reference to marihuana in Schedule II for the
purposes of the offence of possession of marihuana in
section 4 of the CDSA, that order effectively deleted
marihuana from Schedule II to the CDSA, thereby removing
marihuana from the list of controlled substances under the
CDSA.

JCT: Close but never right on. I never said the Parker Order
effectively deleted the word marijuana from the list. I said
the failure of the Government to "except marijuana" from the
section that says its prohibited to possess anything on the
banned list left the only way of reflecting the court's
invalidation of the prohibition in s.4(1) by deletion of the
word "marijuana" from the list. The court ruled judges would
remember which written laws were no longer valid,
immediately after admitting none had remembered it had been
invalid for the past 2 years.

CR: The appellant argues that as a result the offences of
trafficking in marihuana and production of marihuana had
been "repealed" at the time he was charged.

JCT: Bingo.

CR: The appellant`s argument, however, is grounded on a
fundamental misunderstanding of the effect of this court's
order in Parker. In Parker, this court determined that the
prohibition against simple possession of marihuana in the
CDSA was overly broad, as the legislative scheme failed to
provide an exemption for medical use. The constitutional
validity of the offence of possession of marihuana for the
purpose of trafficking, in section 5(2) of the CDSA, and
production of marihuana, in section 7 of the CDSA, was not
before this court in Parker.

JCT: Actually it was. Parker was granted an exemption to
possess and cultivate by Judge Sheppard. The Court of Appeal
ruled prohibition on possession was invalid for being
unconstitutional and would have ruled prohibition on
cultivation invalid too except that the Crown did not appeal
the cultivation exemption. And Alberta Court of Appeal did
uphold Superior Justice Acton's invalidation of s.7(1). I
guess he forgot I was charged after the Krieger decision.

CR: This court, in Turmel, supra has already held that the
appellant's argument is misconceived and explained to him
that its declaration of invalidity did not delete marihuana
as a controlled substance in Schedule II of the CDSA. His
request for an extension to file an application for leave to
appeal to the Supreme Court of Canada was dismissed by Mr.
Justice Binnie on March 11, 2005.

JCT: And I'm appealing that the court's ruling that judges
will remember which written laws no longer apply just as
misconceived.

CR: In his submissions, the appellant relies heavily on the
Alberta Court of Queens Bench decision in R. v. Krieger,
[2000] A.J. No. 1683 (Alta.Q.B.). In that case Acton J.
struck down 7(1) of the CDSA to the extent that it dealt
with the production of cannabis marihuana. She suspended the
declaration of invalidity and allowed the government one
year in which to respond legislatively to the concern that a
person in need of marihuana for legitimate medical reasons
could not legitimately access marihuana. The Alberta Court
of Appeal dismissed a crown appeal but extended the
suspension the declaration of invalidity made by Acton J.
"until further order of the court".

JCT: Now he extends a 1-judge stay pending appeal into a 3-
judge stay after appeal!

CR: The suspension has never been lifted in Alberta,
presumably because the legal challenges in Ontario forced
the federal government to amend the legislation.

JCT: He wants to argue that a functus officio court issued a
stay that continues after the Supreme Court of Canada.

CR: The defect identified by Acton J. has been remedied and
the issue is moot in the province of Alberta.

JCT: And yet, the Court of Appeal stressed how Acton set no
conditions of compliance and the MMAR was not valid at the
time. Remember, Steve's got the whole story, the court has
the whole story, and this is how he's interpreting it to the
court. Har har har.

CR: In any event, a decision of the Alberta Court of Queens
Bench and the Alberta Court of Appeal has no binding effect
on this court.

JCT: Not on the Ontario Court of Appeal but on the lower
Ontario Courts which is why this is being appealed.

CR: D. CONCLUSION

In summary, since there has never been a declaration of
invalidity in respect of the offence of possession for the
purpose of trafficking or production of marihuana in
Ontario, these offences existed at the time the appellants
were alleged to have committed their crimes. The submissions
filed in support of this request demonstrate that the
appellant continues to pursue appeals that are without
merit.

The appellant's submissions in support of his request do not
demonstrate this court's jurisprudence regarding the various
issues raised in his appeal is manifestly wrong and this
court should refuse the request to convene as a five member
panel.
Respectfully submitted.
Yours truly,
Steve Coroza
Crown Counsel
Department of Justice
cc. John Turmel

1 See Bates v. Bates (2000), 49 O.R. (3d) 1 at paras. 31-2
and see R. v. Mahalingan (unreported decision of the Ontario
Court of Appeal dated April 20, 2006 at para. 60).

JCT: I guess I'll have to send a reply.



--
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