PROHIBITION OF PROSECUTION BY KRIEGER S.7 INVALIDATION

Court File: 32011
Appeal Court No: 44587
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

APPLICANT'S REPLY
JOHN C. TURMEL, APPLICANT
(Pursuant to Section 28)

1. On May 14 2003, the Applicant 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. On Oct 7 2003, the Ontario Court of Appeal dismissed an
appeal of the decision of Justice Aitken refusing to
prohibit prosecution on the grounds the possession offence
in S. 4 of the CDSA had been invalidated by the Parker
decision and that invalidation extended to S.5(2). The
Application for leave to appeal was dismissed as abandoned
by Justice Binnie for getting one document in late.

3. On Feb 23 2007, the Ontario Court of Appeal dismissed the
Applicant's appeal of the decision of Justice MacLeod
refusing to prohibit prosecution on the grounds not only the
possession offence in S. 4 but also the cultivation offence
in S.7 had been invalidated by the Krieger decision and
those invalidations extended to S.5(2) because in its view
the decisions in R. v. Turmel (2003) 177 C.C.C. (3d) 533
(Ont.C.A.) and Hitzig v. Canada (2003) 177 C.C.C. (3d) 449
(Ont.C.A.) were binding and that possession for the purpose
of trafficking marijuana was an offence known to law.
Applicant's request for a 5-judge panel necessary to
overrule those decisions was denied thus stacking the deck.
















4. When legislation is struck down, is Parliament required
to reprint the statute to effect the repeal? The Crown calls
the period of invalidity during which the Parker Court had
invalidated the s.4 offence a period of "uncertainty." The
Parker Court of Appeal's Order declaring "the marijuana
prohibition in s.4 of the CDSA to be invalid" is not so hard
to understand. The Crown professes to be "uncertain" about
what it means.

5. Section 2(2) of the Interpretation Act says statutes that
are of no force and effect are to be deemed "repealed," not
"uncertain." By calling the period of invalidity a period of
uncertainty, it is less clear that the statute had to be
deemed repealed. It's easier to say you're bringing an
"uncertain" law back to life instead of a law that's been
repealed for two years. Just as the death penalty can't be
unrepeal one invalidated, so too, the possession prohibition
couldn't be unrepeal once invalidated.

6. Though the Hitzig Court of Appeal ordered Canada's judges
to ignore S.2(2) of Parliament's Interpretation Act to deem
"repealed" a statute that's been invalidated and to deem it
as only "absent," but courts cannot resurrect penal laws,
only Parliament can, an error causing untold thousands of
bogus prosecutions.

7. Section 7 cultivation and S.4 possession prohibitions
have been struck down and must be deemed repealed while
Section 5(2) and others have been invalidated by the
implication of the government failure to print a new Code.
As Justice Earle-Renton once said: you can't "possess for
the purpose" if possession is legal. You can't "possess for
the purpose" if cultivation and possession are legal.

8. So with no change to the legislation, there was no change
to the pattern of busting resulting in the Parker 4000, the
Parker Scandal's 100,00 bogus unerased convictions, and the
Krieger 200,000 bogus convictions since then.

9. The Crown points out the S.5(2) offence was never struck
down but I said it had been invalidated by the Crown's
failure to reprint a new Criminal Code statute to reflect
the 2001 Parker Court's invalidation either by 1) exempting
"marijuana" from S.4(1) or nullifying it from Schedule II of
prohibited substances. Now it's about the Criminal Code not
being reprinted to reflect the 2003 Krieger invalidation of
the section 7 cultivation offence on Feb 4 2003.

10. The Crown insists the declaration in Parker did not have
the effect of repealing Canada's marihuana laws but the
declaration in Parker did have the effect of invalidating
the section 4 possession offence. The failure to reflect
that invalidation in Section 4 resulted in the invalidation
having to be effected by deleting "marijuana" from the list
of prohibited substances for all sections that referred to
the list. Had they exempted marijuana in Section 4(1) saying
it's an offence "to possess anything on Schedule II except
marijuana," sure, it would still be on the list for other
offences. But when they didn't reflect the invalidation with
an exemption in the section, it could only be invalidated in
the schedule. For all offences including "possession for the
purpose."

11. The Crown asks if the Chief Justice erred in not
providing the 5-judge panel necessary to overrule the
earlier 3-judge decision in R. v. Turmel (2003) 177 C.C.C.
(3d) 533 (Ont.C.A.)? The Crown notes that the Court of
Appeal for Ontario rejected the Applicant's argument "again"
on Feb 23 2007 when it stated: "Mr. Turmel's enthusiastic
arguments face an insurmountable hurdle. This court has
already rejected these types of arguments.. and concluded
that these offences remained in full force and effect." Of
course, the insurmountable hurdle of not having five judges
on the panel to overrule the three who said "that these
offences remained in full force and effect" was
insurmountable only because the Chief Justice stacked the
deck. Which is why giving me a panel without jurisdiction is
a ground of appeal.

12. The Crown says the Court of Appeal for Ontario dismissed
my argument that I was not charged with an offence know to
law twice. The second time, it was because the court was
bound by the first decision. The Crown notes: he was told in
2003 that his position regarding the "repealing" of the
prohibition of cannabis marijuana from schedule II of the
CDSA was fundamentally misguided. This is why I needed 5
judges to correct that ruling. The Crown admits that despite
the clear direction of the court, the Applicant again
brought the issue before the same court in 2007 and was told
that the previous decision was binding. Because the
Applicant had not been given the 5-judge panel necessary to
overrule the previous 3-judge panel that was now binding the
present 3-judge panel.

13. If R. v. Drouin establishes Krieger Day Feb 4 2003, then
there is proof Parker (Aug 1 2001) and Krieger had
invalidated both possession and cultivation at the time of
my arrest on May 14 2003 and before the Hitzig case could
have resurrected the prohibition again.

14. The Crown says this application raises no issue of
public importance but the decision I am challenging which
needed the 5 judges is a decision that was entered into the
Criminal Code of Canada as setting precedent. Such a
precedent-setting case raises an issue of national
importance.

14. The Crown keeps saying the law regarding the prohibition
against possession of marihuana for the purpose of
trafficking is well settled but the fact these appeals of
such precedent-setting decisions are going on proves it is
not settled law.

Dated at Brantford on June 3 2007
For the Applicant:
John C. Turmel, B. Eng.
--------------

CERTIORARI FOR JURY TRIAL

Court File: 32012
Appeal Court No: 44588

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

APPLICANT'S REPLY
JOHN C. TURMEL, APPLICANT
(Pursuant to Section 28)

1. On May 14 2003, the Applicant was arrested while holding
a bag containing approximately 3.3 kilograms of marijuana
packaged in 7 bags and was charged that the accused
"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.

2. For amounts "not exceeding" 3Kg, Section 5(4) empowers a
judge alone with 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.

3. In an application prior to the trial, Applicant
complained 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.
























4. An appeal of Wright's decision was brought in the
Superior Court of Justice before MacLeod J. in the form of
certiorari and 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 because, by the
time the appeal was heard in the Court of Appeal on Feb 23
2007, the appeal from the decision of MacLeod was mooted, as
the trial judge had rushed ahead to convict before the
Appeal court could rule.

5. The Crown asks: "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" and submits that, "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." Mis-stating the facts on an indictment is an
abuse of the process. Does the Crown's discretion on stating
charges also mean discretion on stating facts? 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 "Under." The Crown has discretion
with respect to allege different charges based on a set of
facts, but not discretion to allege a different set of
facts. A different set of facts is a lie. The Crown's
discretion is not to lie but the discretion to select the
charge that applies to the facts.

6. The Crown cites case law explaining how necessary it is
to exercise discretion in deciding when 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.
Lots of discretion but not to misrepresent the facts!




















7. The Crown cites Hoem v. Law Society of B.C. (1985) 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
must be respected." Discretion "within its proper sphere" is
not in the sphere of changing the facts from over to under.

8. The Crown says that "with any allegation of abuse of
process, it is the accused who bears the onus of proof that
the Crown's exercise of discretion amounts to an abuse of
process... 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."
Admitting they misrepresented the facts should speak for
itself as evidence of abuse.

10. The Crown says: "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." Unfortunately,
the judge skipped from the pre-trial decision right to the
conviction so I had no time between his dismissing the
motion to quash and my conviction to ask. Again later, the
Crown notes it's curious the Applicant did not raise the
issue before the trial judge without noting the judge went
from the pre-trial to conviction with no time in between to
ask.

11. The Crown rationalizes denying a jury trial because
permitting this type of litigation to be argued before a
jury would undermine the public's confidence in the criminal
justice system. Yet, prohibiting prosecution is raised pre-
trial. Prohibition of prosecution can never inconvenience a
jury because it's not heard by a jury.


12. The Crown argues that "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." 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 is it reasonable to misrepresent the amount because I'm
not important enough for a jury? At least they admit the
misrepresentation was to deny me the due jury trial.

14. A ruling by Ontario highest 3-judge panel on whether a
judge below has jurisdiction is not mooted by the lower
court judge rushing to judgment before they can rule!

16. All five judges, Wright, MacLeod, Labrosse, Sharpe,
Blair, agreed they saw nothing wrong with alleging false
facts on the indictment. Applicant hopes this court
disagrees.
Dated at Brantford on June 3 2007
For the Applicant:
John C. Turmel, B. Eng.
-------

CONVICTION MISSING PREVENTATIVE, NECESSITY, INSPECTION

Court File: 32013
Appeal Court No: 45295

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

APPLICATION FOR LEAVE TO APPEAL
JOHN C. TURMEL, APPLICANT
(Pursuant to S.59(4) of the Supreme Court Act)

1. On May 14 2003, the Applicant was charged with possession
of 7 pounds of marihuana for the purposes of trafficking
pursuant to section 5(2) of the Controlled Drugs and
Substances Act (CDSA). Two offensive challenges to the
court's jurisdiction by way of Prohibition and Certiorari
were dismissed in Superior Court and appealed. Before they
could be heard in the year it took to organize a bilingual
panel, the trial judge rushed to judgment by handing down
his decision to convict with his decision on the pre-trial
S.601 motion to quash the charges thereby skipping any
opportunity for the Defence to raise a Charter application
or argue the defence of necessity or the defence of "no
intent to traffic, only an intent to permit inspection."

2. The Crown says: "He was unsuccessful and finally
convicted by Belanger J. of the Ontario Court of Justice on
March 10 2006." After the challenges to jurisdiction were
unsuccessful in 2007, I was "finally convicted in 2006?"

3. The Crown continues: "The Applicant appealed rulings
dismissing his applications for relief and his conviction to
the Court of Appeal for Ontario. The appeals from his
applications for prohibition and certiorari were dismissed
because they were moot." So the judge convicted before it
was settled and then the conviction was used as rationale by
the Court of Appeal to say the challenges to his
jurisdiction no longer applied!

4. The Crown says: The Applicant admitted the Crown's case
and the trial judge invited the Applicant to make
submissions to him as to the state of the law in writing."
The "state of the law" was my pre-plea S.601 motion to quash
before bothering with preparing a long and costly defence. I
did not write up and hand in a defence that "may not be
necessary if charges quashed." I waited to find out if the
trial would even proceed and had my Notice of Application
for Constitutional Relief ready to serve and file as soon as
the charges were ruled legit. And I did not admit the
Crown's case, not having heard the Crown argument yet, I
only admitted the Crown's evidence but with the conviction
in the same judgment as the decision on the pre-trial motion
to quash, there was no time available to present a defence
argument.

5. The Crown says: "It is only after conviction, and without
notice, that the Applicant raised other issues." I asked to
serve and file my prepared Notice of Constitutional Question
right after the pre-trial motion to quash had been
dismissed, in the right order, but just after I found out
the conviction had already been written up. The judge could
have still permitted me to make my defence by just handing
down the decision on the quash and omitting the decision on
the conviction but instead said it was too late since he'd
already decided on convicting me. The judge is the one who
started the trial before finishing the S.601 motion to quash
which caused any confusion on the plans of the Defence. The
fact the judge handed down his conviction before I could
then enter a defence didn't mean I shouldn't ask him to let
me take the next steps in the defence and reconsider handing
down his judgment right then.

6. The Crown asks: "Was it correct for the judge to refuse
to hear the Charter challenge for preventative medical
use?... Applicant's proposed argument that the possession of
marijuana as a form of "preventative medical use" has
already been dismissed by the Court of Appeal for Ontario in
the decision of Hitzig v. Canada, supra... The Court of
Appeal held that there was no medical evidence presented
that the smoking of marijuana by healthy individuals had any
prophylactic effect whatsoever and that section 4 of the
CDSA was only overbroad to the extent that it applied to
those who already had a serious medical condition."

7. It's quite illogical to think the beneficial effects only
apply to those who already have a serious medical condition
and not also to those getting it. And now we've found that
Dr. Donald Tashkin, the researcher who'd originally
concluded marijuana causes lung cancer, has reversed himself
and found evidence that it seems "to have some protective
effect." (Washington Post May 26 2006) Prohibition of this
protective effect from the planet's most useful medical herb
is as much a life and death issue as for any sick person.

8. The Crown asks: "Should the judge have permitted the
accused to raise the defence of necessity or the defence of
no intent to traffic only an intent to permit inspection?"
The right question is "Should the judge have permitted the
accused to raise a defence?" The complaint isn't that he
didn't permit two particular defences, as if he refused to
permit it to be raised like many judges do. The issue is
that I didn't get to make any defence arguments at all. I
only got to raise the "offence" argument to quash but no
defence once the quash had failed.

9. The Crown says: "The trial was adjourned to March 10
2006, however, the trial judge proceeded to hear the facts
surrounding the case to be read into the record - a
procedure consented to by the Applicant." Yes, the judge
adjourned but proceeded some more.

10. The Crown cites from the transcript:
THE COURT: Thank you. Now Mr. Turmel, do you wish to call
viva voce evidence in your defence?
MR. TURMEL: Well, I'd like to do that later, not now. I
mean, I don't mind the Crown's facts going in, but I would
rather not respond to it at this point in time, and if I
can, I'd wait to see if the charge is going to go through
after the application to quash.
THE COURT:.. The Crown, here, has a prima facie case, but
you're entitled to call evidence. Not argument, now. The
argument, I'll hear, we've said...
MR. TURMEL: Well then, I have no evidence. I'll have no
evidence to call, Your Honour."

11. It is pretty clear that the Crown and Defence argument
on the prima facie case still had to be made. All the
evidence I would need was in the Crown's case. The fact
there were 3.277 Kilograms of marijuana and that the officer
heard me say that I was dropping it off for the Prime
Minister's inspection. But because I had no evidence didn't
mean I didn't have any argument no matter what the judge
thought, and when he found out I wasn't finished, there was
no need to deny me any defence except to "mooten" the
appeals against his jurisdiction if he could convict me
before they were heard.

12. The Crown points out: "On March 10 2006 (after having
previously provided with written submissions by the
Applicant and the Crown) the trial judge released a written
judgment where he found that the Applicant was charged with
an offence known to law and that because the Crown's case
was admitted the Applicant was guilty." Yes, the ruling on
my pre-trial and end-of-trial judgments were handed down at
the same time.

13. The Crown says: "As the above passage outlines in great
detail, the Applicant was given ample opportunity to raise
any defence he wished, but failed to do so." I was given
ample opportunity to raise any evidence, but argument was to
be raised "not now." And it's the judge who put things out
of whack by starting the trial before ruling on the pre-
trial motion to quash it. From pre-trial to conviction with
no defence or Crown argument in between is the result, no
matter that he got his conviction registered before we had a
chance to get any arguments in.










14. The Crown says "the Applicant is raising these defences
(Necessity, Inspection) for the first time on appeal... The
Applicant is an experienced litigant. He had every
opportunity to raise any defence he wanted to before the
trial judge." A main issue here is that I had not because
the judge skipped them at the trial.

15. The Crown cites precedent against introducing new
arguments on appeal in that "counsel for both sides, having
discovered that the strategy adopted at trial did not result
in the desired or expected verdict, devised new approaches."
This is not a new approach after an old defence approach has
failed, it's the old defence that never got heard below.

16. Note that the Crown says: "the Applicant admitted that
he possessed marihuana for the purpose of trafficking and
his core submission at trial was that he was not charged
with an offence known to law." I admitted I possessed it for
the purpose of permitting inspection, not trafficking. And A
Section 601 "unknown to law" motion to quash isn't raised at
trial, it's at pre-trial. The pre-trial portion was dealt
with but I didn't get a chance to present any defence
argument at trial at all nor did the Crown get to present
any prosecution argument either.

17. The Crown points out: "There is no evidence that the
Applicant is in serious medical need of cannabis marihuana
to treat a medical condition." And I don't want to wait
until there is.

Dated at Brantford on June 3 2007.
For the Applicant:
John C. Turmel, B. Eng.



--
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
http://www.cyberclass.net/turmel USENET blog: alt.fan.john-turmel