JCT: Again, the Crown sometimes confuses this appeal for a
jury trial with the conviction appeal #32013.

File Number: #32012
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:
John C. Turmel

Applicant
Appellant in appeal
and

Her Majesty The Queen

Respondent
Respondent in appeal

Response to Leave Application
Her Majesty The Queen
(Pursuant to Rule 27)

PART I - RESPONDENT'S STATEMENT OF FACTS

Overview of the Respondent's Position

1. On May 14 2003, the Applicant faxed a letter to the
Department of Justice stating that he had marihuana that he
was going to drop off at various locations in Ottawa,
including Parliament Hill, the Prime Minister's office, the
Attorney General of Canada and to this Court. The Applicant
was arrested on Parliament Hill that same day while holding
a bag containing approximately 3.3 kilograms of marijuana
packaged in 7 bags. He was charged with possession of
marihuana for the purposes of trafficking pursuant to
section 5(2) of the Controlled Drugs and Substances Act
(CDSA).

2. The Crown proceeded on an information alleging that the
Applicant "unlawfully did, for the purpose of trafficking,
possess a substance included in schedule II of the CDSA, to
wit, an amount "not exceeding" 3 kg's of Cannabis Marijuana,
contrary to section 5(2) of the said Act.

3. Although the offence under section 5(4) of the CDSA is an
indictable offence, it falls within the category of
"absolute discretion" offences established in section
553(c)(xi) of the Criminal Code. Thus, the Applicant's trial
occurred in the Ontario Court of Justice before a judge
alone.

JCT: For amounts "not exceeding" 3Kg, a judge alone has
jurisdiction. For amounts "exceeding" 3Kg, it's an offence
under Section 5(3) not 5(4) and an accused facing life
imprisonment may elect between a jury trial or judge alone.
By misrepresent the amount on the indictment, the Crown can
deny me a jury trial. One little "not." One little lie.

4. The Applicant was convicted by Belanger J. of the Ontario
Court of Justice on March 10 2006. The Applicant admitted
the facts but advanced the startling proposition that he was
not charged with an offence known to law.

5. The Applicant complains that he was deprived of a jury
trial. In his view, he "did the crime on purpose for the
purpose of getting a jury to discuss and decide on my
situation..." Prior to the trial, he brought an application
before the Ontario Court of Justice complaining that since
he was in possession of an amount of marijuana greater than
3 kilograms, he should have an election as to his mode of
trial because section 553 did not apply. This application
was dismissed by Wright J. of the Ontario Court of Justice
on April 19 2005.

6. An appeal of Wright's decision was brought in the
Superior Court of Justice before MacLeod J. in the form of
certiorari. This appeal was dismissed on November 28 2005 as
the court could find no jurisdictional error made by Wright
J. A further appeal of this decision was dismissed by the
Court of Appeal for Ontario on February 23 2007.

7. By the time the appeal was heard in the Court of Appeal
on Feb 23 2007, the appeal from the decision of MacLeod was
moot, as the Applicant had already been convicted on the
charge before the trial judge on March 10 2006.

JCT: Notice that proper English would have said: the appeal
became moot once the Appellant was convicted. That's right.
The three highest judges in Ontario said they had been
overruled by one judge below them. When Judge Belanger acted
before waiting for their decision on his jurisdiction, it
removed any power they had over him. Har har har har.
Justice in Wonderland. 3 highest judges power mooted by one
lower one!

Accordingly, the Applicant's appeal on this issue was
dismissed by the Court of Appeal.

JCT: Ontario highest 3-judge panel being overruled on
whether the judge below had jurisdiction by the lower court
judge going forward before they could rule! Har har har. It
never fails to amuse how irrational judges, no matter how
high, can be.

The Applicant now asks this court to revisit the issue

JCT: What never got dealt with.

even though it was not raised before the trial judge.

JCT: There was no chance once the judge decided to skip the
defence part of my trial.

This application ought to be dismissed for the following
reasons:
i) The application has no merit;
ii) The issues raised are not of national or public
importance.

JCT: Sure, a falsehood on the face of the indictment isn't
very important to the judiciary. Lies are permitted on
charges, everyone should know that!

PART II - QUESTION IN ISSUE

8. The Notice of Application appears to pose essentially one
question: i) Can the court review the discretion of the
Crown to proceed on a charge of possession for the purpose
of trafficking marihuana in an amount less than 3 kilograms
when the evidence discloses that the marihuana was more than
3 kilograms?

9. The Respondent submits that the foregoing question ought
to be answered in the negative as absent a finding of abuse
of process, the court can not review the discretion of the
Crown to proceed on a charge of possession for the purpose
of trafficking marihuana in an amount less than 3 kilograms.

PART III - ARGUMENT

A. The Application Has No Merit Because Absent Evidence Of
An Abuse Of Process, The Crown Has The Ultimate Discretion
To Decide On What Charges To Proceed

JCT: Discretion for charges on a given set of facts, not a
different set of facts. One corpse offers the choice between
Pre-medicated Murder One, Non-pre-medicated Murder Two,
Negligent Manslaughter Three. But "more than 3Kg" does not
offer the choice between "Over" or "Not Over." My case is
that the Crown has discretion with respect to different
charges based on a set of facts, but not discretion about a
different set of facts. A different set of facts is a lie.
The Crown's discretion is not to lie or not but the
discretion to select the charge that applies to the facts.
So my issue is clearly stated though the Crown never claims
discretion over facts, just charges.

10. Absent an abuse of process,

JCT: I wonder if denying me a jury trial when I'm due one
because the matter in question is in an amount greater than
3 kilograms could be called an abuse of process. Why not? So
it is. And so it is not "absent..."

the law is clear that the Crown has the discretion to
proceed with its case in a manner and on the charges it sees
fit.

JCT: Does the Crown's discretion on the charges also mean
discretion on the facts? We'll see.

11. The Crown must use its discretion on a daily basis to
decide important issues.

JCT: Notice the Crown keeps referring only to their
discretion on selecting the charges but never actually
responds on their discretion on selecting the facts. The
review is on their selection of facts.

As this court recognized in R v. Beare [1988] 2 S.C.R. 387
and reiterated in R. v. Regan [2002] 1 S.C.R. 297 at para.
166:

JCT: Remember, I'm not challenging their discretion as to
charges related to a set of facts, I'm challenging their
discretion to misrepresent the facts.

"... a system which did not confer a broad discretion on law
enforcement and prosecutorial authorities would be
unworkable, per La Forest J. at p410:
<<Discretion is an essential feature of the criminal justice
system. A system that attempted to eliminate discretion
would be unworkably complex and rigid.

JCT: Remember, I'm not trying to eliminate discretion on
charges on a set of facts, I'm objecting to discretion to
alter the facts.

Police necessarily exercise discretion in deciding when to
lay charges, to arrest and to conduct incidental searches,
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.>.

JCT: They sure do have a lot of acknowledged discretions
don't they? 1) Discretion to lay charges, 2) discretion to
arrest and 3) discretion to conduct incidental searches, 4)
discretion as prosecutors do in deciding whether or not to
withdraw a charge, 5) discretion to enter a stay, 6)
discretion to consent to an adjournment, 7) discretion to
proceed by way of indictment or summary conviction, 8)
discretion to launch an appeal and 9) so on. But nowhere
does he actually mention discretion to allege false facts!

12. This discretion, absent an abuse of process, should not
be subject to review by the courts.

JCT: Improperly usurped discretion on misrepresenting facts
should be.

As this court stated in Krieger v. Law Society of Alberta
[2002] 3 S.C.R. 372 at para. 32:
<<The court's acknowledgment of the Attorney General's
independence from judicial review in the sphere of
prosecutorial discretion has its strongest source in the
fundamental principle of the rule of law under our
Constitution.

JCT: Discretion on charges relating to facts, not discretion
as to facts, though it seems presumed they don't do that.
But what if they did? What if they have?

Subject to the abuse of process doctrine, supervising one
litigant's decision-making process - rather than the conduct
of the litigants before the court - is beyond the legitimate
reach of the court.

JCT: Okay, then it's an abuse of process to use discretion
to misrepresent the facts of the offence.

In Hoem v. Law Society of B.C. (1985) 20 C.C.C. (3d) 239, 20
D.L.R. (4th) 433 (B.C.C.A.), Esson J.A. for the court
observed, at p. 254, that: The independence of the Attorney
General, in deciding fairly who should be prosecuted, is
also a hallmark of a free society. Just as the independence
of the bar within its proper sphere

JCT: Bingo. Discretion "within its proper sphere."

must be respect, so must the independence of the Attorney-
General.

JCT: "within its proper sphere!!!"

We agree with these comments. The quasi-judicial function of
the Attorney General cannot be subjected to interference
from parties who are not as competent to consider the
various factors involved in making a decision to prosecute.

JCT: But is subject to interference when all parties are
competent to consider the various "facts" upon which the
decision to prosecute is being made.

To subject such decisions to political interference or to
judicial supervision could erode the integrity of our system
of prosecution.

JCT: So they should be left alone on their discretion as to
different charges related to facts and not left alone on
their non-discretion as to offering different facts.

Clearly drawn constitutional lines are necessary in areas
subject to such grave potential conflict.>>

JCT: And clearly drawn lines of fact are also necessary.

13. With any allegation of abuse of process,

JCT: Misrepresenting the facts...

it is the accused who bears the onus of proof that the
Crown's exercise of discretion amounts to an abuse of
process.

JCT: I thought pointing out there was a lie on the
indictment that could be corrected by deleting the "not"
from "not exceeding 3Kg" was pretty simple proof when their
own evidence had the amount as 3.277 Kg. Guess they need
more than just a misrepresentation on the indictment.

15. There is absolutely no evidence that the Crown, in
proceeding on an information alleging less than 3 kilograms
of marihuana (when the facts disclosed possession of over 3
kilograms) was acting in an abusive manner.

JCT: Doing and admitting it is the evidence.

Given that the arguments in this case involved a legal
dispute (i.e. was the application charged with an offence
known to law) and not a factual dispute, the decision of the
Crown to proceed with a charge of less than 3 kilograms was
entirely appropriate.

JCT: The Supreme Court will get to sign off on whether
alleging a false fact is acting in an abusive manner or not.

B. This issue raises no issue of public importance

JCT: Challenging the Crown's discretion as to facts but not
to all the discretions listed above is of public importance.

15. The Applicant, an experienced litigant, admitted the
Crown's case and he was properly convicted.

JCT: Admitting the facts is not admitting the case and the
propriety of the conviction is being raised in appeal
#32013, not this #32012 for the election of trial mode.

While the Applicant's complaints as to jurisdiction and
exercise of the Crown's discretion are without merit, they
should have been made to the trial judge. In fact, the
Applicant could have asked the trial judge to exercise his
discretion and invoke section 555 of the Criminal Code which
allows a provincial court judge to convert a trial to a
preliminary inquiry, thus allowing him to potentially argue
the case before a jury.

JCT: With more than 3Kg, he had no jurisdiction over me. So
why should I ask him for the favor. Besides, he skipped from
the pre-trial decision right to the conviction so there was
no opportunity to ask the judge to convert it once he had
dismissed the motion to quash and skipped my defence to
conviction. The lawyer keeps forgetting the judge going from
the pre-trial decision right to the conviction provided no
opportunity for the motion he suggests. Neat answer, eh? I
get to point out that I didn't ask for the trial to be
converted because the judge skipped the defence portion of
the trial. Har har har har.

16. A review of the Applicant's materials demonstrates that
his defence is premised on the starting proposition that
possession for the purpose of trafficking marijuana is not
an offence known to law.

JCT: In my first of three Supreme Court Appeals #32011 for
prohibition of prosecution under a still-invalid never-re-
enacted and certainly never court-resurrected law.

Permitting this type of litigation to be argued before a
jury would undermine the public's confidence in the criminal
justice system.

JCT: Prohibiting prosecution is not a jury issue. That's why
it is raised pre-trial. So this issue of prohibition can
never inconvenience a jury because it's not a jury issue.
Har har har har. A lawyer doesn't know this. And I get to
make a joke of it in my upcoming Reply. Har har har.

While in certain cases it may be appropriate to have a jury
trial, the fact that the Applicant's guilt or innocence is
of no particular public importance, the decision to proceed
with a charge in the absolute jurisdiction of the Ontario
Court of Justice was reasonable.

JCT: It was only because the charge was misrepresented as
"not exceeding 3Kg" that it could be held in the lower
Ontario Court of Justice. A true charge of "exceeding 3Kg"
would have had to be held in Superior Court. So it's
reasonable to misrepresent the amount because I'm not
important enough for a jury. At least they admit the lie was
to deny me the jury trial that I was due.

In his attempt to stall the proceedings by way of
certiorari,

JCT: Cheap shot. Asking for a jury of my peers they are
lying to cheat me out of is not stalling.

two judges agreed with the Crown's decision.

JCT: Five. Wright, MacLeod, Labrosse, Sharpe, Blair all
agreed they saw nothing wrong with alleging false facts on
the indictment. They should be ashamed. I just want to get
three Supremes to say so too! Har har har har.

Curiously, the Applicant did not raise the issue before the
trial judge.

JCT: Not curious if you realize the judge skipped the part
of the defence where I could have asked by handing down the
pre-trial decision on the motion to quash and conviction at
the same time.

He should not be permitted to review the matter afresh on
appeal.

JCT: The judge skipped my chance to do the matter in the
first place. I guess Crown Attorney Brian Puddington doesn't
make the connect from the next appeal #32013 where I
complain about Judge Belanger skipping the defence part of
my trial by presuming I had admitted the Crown's case when
I had only admitted the Crown's facts and opined it
would be big trouble to beat.

PART IV - SUBMISSIONS CONCERNING COSTS

17. The respondent does not seek costs.

PART V - ORDER REQUESTED

18. The respondent requests that the application for leave
to appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this 23rd day of May 2007.
Brian G. Puddington
Counsel for the Respondent
Attorney General of Canada.


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Abolitionist Debt 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
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