JCT: Just got the Crown's Consolidated Factum for our
upcoming Big Five Medpot Appeals on Feb 23 2007 in Ontario's
highest court at Osgoode Hall Toronto at 10:30am. Because of
the Crown trivialising major points by putting them in
footnotes, I'll bring them up into the text with their
numbers.

Court File No.
M33601, C44684,
C44683, C44587,
C44588, C45295

COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Applicant on Motion to Quash
(Respondent on Appeal)
and
REAL MARTIN and
PIERRE DROUIN and
JOHN C. TURMEL
Respondents on Motion To Quash
(Appellants on Appeal)

CONSOLIDATED FACTUM OF HER MAJESTY THE QUEEN

PART I - STATEMENT AS TO FACTS

OVERVIEW OF THE MOTION TO QUASH AND THE APPEALS

1. There are 5 appeals (C44684, C44683, C44587, C44588,
C45295) before the court and an application to quash 4 of
them (M33601). Since the appeals and the application to
quash are to be heard on the same day, in order to avoid
confusion, the respondents in the application to quash will
be referred to herein as the "appellants" and the Crown
applicant will be referred to herein as "the Crown."

2. This consolidated factum is filed in support of the
Crown's motion to quash appeals C44684, C44683, C44587,
C44588, and in the alternative, serves as a response to all
of the appeals filed before this court. (1)
(1) Goudge J.A. ordered that appeal C45295 be joined up with
all outstanding appeals in this hearing and further ordered
that the Crown provide one consolidated factum in response
to all of the matters before this court on January 12, 2007.
The appeals and the motion were previously ordered
consolidated into one hearing by Simmons J.A. on March 28
2006.

JCT: Funny that both preliminary motions were dealt with by
two of the three "bogus resurrection" judges who since 2003
tripped up almost 5000 known epileptics to death. So they
knew a criticism of their genocidal misjudgment was on the
way.

3. The history of these cases affords excellent examples of
why courts generally restrict the use of prerogative
remedies to circumstances where no other remedy is
available (2)
(2)1 Gover and Ramraj, The Criminal Lawyers' Guide to
Extraordinary Remedies (Canada Law Book, 2000) at p. 12;
A.G. (Queb.) v. Cohen (1979), 46 C.C.C. (2d) 473 at 476
(S.C.C.); R. v. Jones (1974), 2 O.R. (2d) 741 at 751
(Ont.C.A.); R. v. Anson and the Queen (1983) 4 C.C.C. (3d)
119 at 124-131

4. It is a fundamental principle of Canadian criminal
procedure that interlocutory appeals in criminal matters
ought not to be encouraged. (3)
(3) R. v. Meltzer, [1989]1 S.C.R. 1764 at pp.1773-1774; see
also Dagenais v. Canadian Broadcasting Corp., [1994]3 S.C.R.
835, at p.857; R. v. Adams [1995]4 S.C.R. 707 at para. 17;
neithers subs. 24(1) of the Charter nor subs. 52(1) of the
Constitution act, 1982, provide any right of appeal on an
interlocutory motion on a criminal matter: R. v.
Morgentaler, Smoling and Scott (1985), 16 C.C.C.(3d)1
(Ont.C.A.)

JCT: Lots of case law we won't read because I agree
interlocutory appeals ought not be encouraged. Luckily,
because they ought not be encouraged doesn't say ought not
be, does it? Only "ought not be encouraged."

This is grounded on strong policy reasons explained by
L'Heureux-Dube J.

JCT: I had her before. She erred.

in the Supreme Court of Canada's decision in R. v. Laba (4)
where she stated that such appeals would fragment the
criminal trial process and have the potential of creating
lengthy delays.
(4) R. v. Laba [1994]3 S.C.R. 965 at para. 39.

JCT: Gee, appealing allowable motions takes time so let's
disallow them? How do you think lawyers get rich?
Extraordinary remedies are offered because extraordinary
circumstances mandate applying to a court of proper
jurisdiction for innovative but just remedy.
And it doesn't fragment the trial because the trial hasn't
started yet. All it does it adjourn the trial until all
legal avenues are exhausted.

5. This echoed the statement made earlier by McIntyre in the
Supreme Court of Canada's decision R. v. Mills: (5)
(5) R. v. Mills [1986]1 S.C.R. 863 at pp. 963-964
"Furthermore, there is no guarantee that an interlocutory
appeal will accelerate the process. <Rather, experience has
shown that the interlocutory motion or appeal has all too
frequently been the instrument of delay.> <emphasis added>

JCT: Emphasis added to Turmel trying to delay? They're
worried about me trying to delay! Har har har har. You only
need to read the Crown dancing his way around the Parker
claim to his pot back in Brampton for a year.

"In my view, it does not follow that interlocutory appeals
will hasten the process.

JCT: Gee, citizens applying for extraordinary remedy takes
time, better extraordinary remedy?

"They are far more likely to delay the disposition of cases
and would themselves tend to prolong the proceedings
involved in the determination of Charter infringement.

JCT: So it's a good argument for Parliament to amend the
Criminal Code and eliminate the right of appeal for motions
for extraordinary prerogative remedy . But until Parliament
does, I'll avail myself of the option, please, respectfully,
unless the court want to usurp Parliament once more in this
contest.

"The history of this case affords an example."

JCT: Maybe but the delay in the Mills case wasn't costing 4
dead epileptics a day!

6. Each of the appellants has been charged with offences
involving marijuana under the Controlled Drugs and
Substances Act (CDSA). The appellants argue that they are
all charged with offences that are not known to law. As a
result, each of them have brought applications to obtain
injunctions against prosecution in the Superior Court of
Justice disguised in the form of prohibition or certiorari
in a continuing effort to evade a trial on the merits.

JCT: If the law remains invalid, right, why prepare a
defence for a charge that is invalid on its face.

Each of the applications has been dismissed. Appeals C44684,
C44683, C44587, C44588 are appeals from dismissals of their
applications for prerogative relief. In the case of the
appellant John Turmel, the trial judge refused to suspend
his proceedings pending a determination of his appeals by th
is court and proceeded with a trial. Mr. Turmel was
convicted and sentenced and now appeals his conviction to
this Court (C45295).

7. On appeal to this court, the appellants request the same
remedy in the Superior Court of Justice. In reality, each of
these appeals is an attempt to do an end-run around the rule
against interlocutory criminal appeals.

JCT: There's a rule for those kinds of appeals that "ought
not be encouraged" but are offered by Parliament. Might be
tough going for the courts to do away with the right to
appeal for extraordinary remedy offered in the legislation
because they "ought not be encouraged."

None of these appeals raise jurisdictional issues that
warrant the intervention of this court.

JCT: Whether the penal sanction remains repealed is a pretty
big jurisdictional issue. Whether an accused must be put to
an election when the amount of the substance in question is
more than 3Kg, that's pure jurisdiction. And since it's
precedent-setting, another inroad for judicial power by
judicial decree perhaps, extending Crown right to charge
different interpretations to charging different facts, it's
really pretty important too. And whether a healthy guy has
the same medical right to a non-toxic healthful herb,
despite uninformed government hysteria, as a sick guy is the
last big issue going on.

Appeals C44684, C44683, C44587, C44588 should be quashed.

JCT: So, since they ought not be encouraged, they should be
quashed without adjudication. At least the court have the
option of quashing on the judicial need to not encourage.

PART II - SUMMARY OF THE FACTS

HISTORY OF THE PROCEEDINGS

5. The status of the charges for each appellant is
summarized below for this court's convenience (2):
(2) Affidavit of Julianne Kelloway, dated March 15, 2006.

Real Martin (C44684)
Production of marihuana (7). June 18,2003.
(7) Martin is also charged with three offences under the
Criminal Code of Canada (s. 86(1) x 1, and :-5(5)(b)x2)
Nadeau J. (S.C.J.) Application for prohibition
May 26, 2006 (Superior Court of Justice)
Next return date: April 13 2007

Pierre Drouin (C44683)
Production of marihuana and possession of marihuana for the
purpose of trafficking(8). June 11, 2003.
(8) Drouin is charged with five counts of possessing a
prohibited weapon under the Criminal Code of Canada (s.
91(2) x 5)
Nadeau J. (S.C.J.) Application for prohibition dismissed
Next return date: April 13 2007

John Turmel (C44587 C44588)
Possession for the purpose of trafficking May 14 2003
MacLeod J. (S.C.J.)
Application for prohibition and certiorari dismissed
Matter remitted back to the Ontario Court of Justice

JCT: And appealed upward too.

John Turmel (C45295)
Possession for the purpose of trafficking May 14 2003
Belanger J. (O.C.J.)
Convicted of charge on March 10, 2006 by Justice Belanger
(Ontario Court of Justice). Sentenced to a 1000 fine on
March 29, 2006.

A) Real Martin (C44684)

10. On June 18, 2003 the appellant, was charged under
section 7(1) of the CDSA and section 86(1) and section
145(5)(b) of the Criminal Code of Canada (2 counts)(9).
(9) The appellant, Real Martin has been committed for trial.
A charge under section 4(1) of the Controlled Drugs and
Substances Act was withdrawn on December 5, 2005.

JCT: Neat that they withdrew the possession charge to only
charge him with pure cultivation.

The appellant brought an application for prohibition before
Justice Nadeau of the Superior Court of Justice on June 24,
2005. On December 5, 2005, Justice Nadeau dismissed the
Appellant's application for prohibition. The appellant's
return date to the Superior Court of Justice is April 13,
2007. No trial date has been scheduled for this matter.

B) Pierre Drouin (C44683)
11. On June 11, 2003 the appellant was charged under section
7(1) and section 5(2) of the CDSA and section 91(2) of the
Criminal Code of Canada (5 counts)(10).
(10) The appellant, Pierre Drouin has been committed for
trial.

On June 24, 2005, the appellant also brought an application
for prohibition before Justice Nadeau of the Superior Court
of Justice, Cochrane(11).
(11) Pierre Drouin and Real Martin had requested that both
applications be heard at the same time.

On December 5, 2005, Justice Nadeau also dismissed the
Appellant's application for prohibition. The appellant's
return date to the Superior Court of Justice is April 13,
2007. No trial date has been scheduled for this matter.

C) John Turmel (C44587 and C44588)
12. On May 14, 2003 the appellant was charged under section
5(2) of the CDSA(12).
(12) Although the amount of marijuana in his possession was
alleged to be over 3 kilograms,

JCT: "Although" over, they did something different....

the Crown proceeded on a charge of possession under 3
kilograms, pursuant to sections 5(2) and 5(4) of the CDSA.
Although the offence under section 5(4) of the CDSA is an
indictable offence, it falls within the category of
"absolute jurisdiction" offences established in section
553.(c)(xi) of the Criminal Code. That is, the trial of an
offence under section 5(4) of the CDSA is within the
absolute jurisdiction of a provincial court judge and the
accused person does not have the options of electing to have
a preliminary hearing and/or electing to be tried by a judge
of the superior court.

JCT: This is the subject of the whole certiorari application
which he doesn't deal with directly anywhere else.

On March 10, 2006, the appellant was convicted by Justice
Belanger of the Ontario Court of Justice. He was sentenced
to a $1000 fine on March 26 2006.

13. Throughout the prosecution, the appellant has brought
numerous applications in either the Ontario Court of Justice
or the Superior Court of Justice asking the courts to quash
the information as it disclosed no offence known to law(13)
(13) This court has already dismissed an appeal from one of
the decisions of the Superior Court of Justice. See R. v.
Turmel (2003) 177 C.C.C. (3d) 533 (Ont.C.A.)

or to have the word "not" deleted from the sentence "not
exceeding 3 kgs" in the information (14).
(14) The appellant's position is that since he possessed
over 3 kilograms in his possession the offence that he
committed is not in the absolute jurisdiction of the Ontario
Court of Justice and that he is entitled to a trial by jury.
However, the information reflected that the amount did not
exceed 3 kilograms and the appellant did not request that
the trial judge convert the trial to a preliminary inquiry
pursuant to s.555 of the Criminal Code (see R. v. Tucker,
[2006] O.J. No. 3679 (C.A.)) .

JCT: Bingo!!!!!!!!!!!!!!!

The appeals before the court (C44587 and C44588) are from
the decisions of Justice MacLeod of the Superior Court of
Justice dismissing the appellant's applications for
prohibition and certiorari on November 28, 2005. The appeal
before the court (C45295) is the appeal from his conviction
by Justice Belanger of the Ontario Court of Justice.

PART III: ISSUES AND THE LAW

I. Crown's submissions on the Motion to Quash Appeals
C44684 (Martin), C44683 (Drouin), C44587, C44588)

A) Prohibition Should Not Be Granted Where There Is Another
Remedy

14. Criminal trial proceedings should not be disrupted by
applications for prerogative relief.

JCT: When you apply for prerogative relief before the trial,
are the proceedings disrupted?

As noted by Finlayson J.A. in R. v. Tucker(13),
(13) (1992) 9 O.R. (3d) at 302 (Ont.C.A.)
"prerogative remedies for criminal charges will not
ordinarily lie where an appeal is available."

JCT: With 5000 dead epileptics and 4 more a day, these are
not ordinary circumstances.

In R. v. Jones(16),
(16) (1974) 2 O.R. 741 at 751 (Ont.C.A.)
Schroder J.A. adopted the following limitation on the use of
prohibition:
"Like all other extraordinary remedies, prohibition is
granted only in cases where the usual and ordinary forms of
remedy are insufficient to afford redress.

JCT: Quick redress in a life and death situation?

And it is a principle of universal application, and one
which lies at the very foundation of the law of prohibition,
that the jurisdiction is strictly confined to cases where no
other remedy exists,

JCT: certainly no quick remedy exists.

and it is always a sufficient reason for withholding the
writ that the party aggrieved has another and complete
remedy at law." (emphasis added)

15. In R. v. Jones, supra, at page 751, Schroeder J.A.
explained why courts must restrict the use of prerogative
remedies to circumstances where no other remedy is
available:
"If a disappointed litigant were at liberty to obtain an
order of mandamus or prohibition whenever he was
dissatisfied with an order or ruling made by a Court in the
course of the trial, this would constitute a disastrous
interference with the orderly administration of justice and
the wheels of justice would soon grind to a halt. (emphasis
added).

JCT: "In the course of a trial," it's disruptive but not
before trial. This appeal could only be termed disruptive of
the Turmel trial because the judge insisted on starting it
before the pre-trial motion had been ruled upon for no good
reason. But the trials of Pierre Drouin and Real Martin have
not been disrupted since they have not yet even pleaded.

"Moreover, the burden of expense which such a course of
procedure would impose upon the State is not to be left out
of consideration."

JCT: Ask noted Carleton alumnus Conrad Black if he's worried
about the expense to which he's putting the state by
fighting with his expensive lawyers and wonder why noted
Carleton alumnus John Turmel should worry about the expense
to which I'm putting the state by fighting with my own
intellectual resources.

16. The appellants may raise all of the issues set out in
their Notices of Appeal with the judge at trial(17).
(17) In fact, Turmel (C44587 and C44588) should have brought
his motion to quash the information charging him with
possession of marihuana for the purpose of trafficking in
the Ontario Court of Justice.

JCT: I did make a pre-plea pre-trial 601 application to
quash but didn't get answer about whether I'd have to face
trial until I was told I was guilty.

The appellant's motion to quash was brought in the Superior
Court of Justice. The Superior Court of Justice is the wrong
forum because the offence in respect of which he was charged
is within the absolute jurisdiction of the Ontario Court of
Justice. (See section 553(c)(xi) and section 601(1) and
601(10) of the Criminal Code of Canada. Having brought his
motion in the wrong forum, they have no right to appeal to
this court.

JCT: Yes, go read where it says that only those will under
3Kg are subject to the absolute jurisdiction of the lower
Ontario Court of Justice.

If the appellants are convicted at trial, they may then
raise these issues on appeal. The appellants rights are
protected by the normal trial and appeal process set out by
the Criminal Code of Canada. It is desirable that the trial
take place before resort is made to higher courts to ensure
that the issue is not merely an academic one.

JCT: It's national importance makes it more than "merely
academic."

It may well be the case that the prosecution is unable to
prove the offences beyond a reasonable doubt.

JCT: First prove that there is a valid statute for the
offence before proving what would be the offence if valid.

[continued


--
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