JCT: James Turner was also in Ontario Superior Court last
month in Ottawa. He had filed a POLCOA application to
prohibit cultivation of marijuana charges due to the Krieger
invalidation and the Crown had filed an application to have
it dismissed as "frivolous and vexatious," because the
argument had already been dismissed by the Ontario Court of
Appeal.

But not by the Supreme Court of Canada. If the Ontario Court
of Appeal was the court of last resort, one might argue
frivolous and vexatious. But with one level above to be
appealed to, it can't be. And we all know this is going to
the top.

Anyway, Justice Thompson said that Crown had not done
everything properly and that James had not properly served
the Attorneys General for Canada and Ontario the notice of
constitutional question.

Of course, a pre-plea Section 601 motion to quash as unknown
to law is not a constitutional question needing notice and
an application to prohibit charges as unknown to law is not
a constitutional question either. We're not going to argue
the law needs to be invalidated because it's bad, we're
arguing the law is dead because it has been invalidated
since 2001.

So the judge told the Crown to assist Mr. Turner in sending
off the constitutional notices before the hearing. She then
alerted the Attorneys General:

CR: Public Prosecution Service of Canada
National Capital Region

Aug. 27 2008

Ministry of the Attorney General of Ontario

Dear Sir/Madam:

Re: James Earl Turner - Notice of Application and
Constitutional Issue

Mr. Turner has brought an application in relation to the
charges that have been laid against him pursuant to Sections
7(1) and 5(2) of the Controlled Drugs and Substances Act and
section 355(b) of the Criminal Code, a matter that the Crown
has carriage of. A copy of Mr. Turner's application
materials are enclosed at Tab 1 of the accompanying
Application Record. At this time, Mr. Turner is a self-
represented criminal defendant and the Crown has been asked
by the Honourable Justice Thompson of the Superior Court of
Justice to assist him in serving the notice of his
application on the Attorney General of Ontario pursuant to
Rule 27 of the Superior Court of Justice Criminal
Proceedings Rules, as the application includes arguments
that sections 7(1) and 5(2) of the CDSA are presently of no
force and effect.

JCT: It's incredible how many judges we've run into who did
not realize the difference between a Rule 27 constitutional
motion and a Section 601 motion to quash as unknown to law.
But just look at the R. v. JP case in Windsor to see that
their S.601 motion did not need a constitutional notice!

CR: 27.01 This rule applies to applications in criminal
proceedings
(a) to declare unconstitutional and of no force and effect,
in whole or in part, any enactment of the Parliament of
Canada;

JCT: Of course, Terry Parker has already proven that the
possession prohibition was unconstitutionally bad and Grant
Krieger has already proven that the cultivation prohibition
was unconstitutionally bad and we're not trying to re-prove
what they've already proven.
Constitutional challenges take place after plea. Section 601
and extraordinary remedies like prohibition to quash
possession and cultivation prohibitions as no longer known
to law since Aug. 1 2001 and Feb 4 2003 take place before
plea.
Yet, the Crown has now served the Attorneys General for
Canada and Ontario the Notices of Constitutional Question
which James doesn't need right now for a hearing that has no
constitutional question. Of course, if he loses at the top,
like Real Martin, he would then, like Real Martin, have to
come back below for trial and file his Notice of
Constitutional Question. But now that they've already been
notified, even if 2 years early, he won't have to alert them
again in 2 years when he really does need to file a
constitutional question. Of course, since the Crown hasn't
actually cited any constitutional question in her letter, he
might still file a new Notice just to get the constitutional
question down specifically.

CR: Enclosed at Tab 2 of the accompanying Application Record
is the Notice of Basis for Crown's Opposition to the
Application which seeks that the Application be dismissed
pursuant to Rule 6.11(2) of the Superior Court of Justice
Criminal Proceedings Rules.

JCT: Here is the rule:

"DISMISSAL ON REFERENCE OR APPLICATION
Application by Respondent
6.11(2) Upon application by the respondent that a notice of
application does not show a substantial ground for the order
sought, a judge of the court may, if he or she considers
that the matter is frivolous or vexatious and can be
determined without a full hearing, dismiss the application
summarily and cause the applicant to be advised accordingly.

JCT: So the Crown thinks hundreds of thousands of bogus
prosecutions while the statutes were invalid is frivolous
and vexatious. Should be hard to prove. Besides, the fact
Turmel, Drouin, Martin lost at the top means nothing, they
weren't lawyers. Maybe they didn't do it right. Why
shouldn't everyone get their chance to try to get their
judges to understand how their justice books say POLCOA
works. And the fact there's one more level to appeal to also
makes it hard to call frivolous since the cases we were
involved in created the precedents she's citing and we're
challenging.

CR: Following the outcome of the appeal in R. v. Long [2007]
O.J. No. 2774, the Crown anticipates that further grounds
for opposition pertaining to the substance of the
Application proper.

JCT: Of course, if the Long technicality wins, they will say
that after the prohibition had been turned off since
Terry Parker Day and then turned back on by the Hitzig Court
in October 2003 on Alan Young Day, the prohibition turned
back off when Health Canada didn't do some technicality with
the exemption system right.
Long accepts that the Hitzig Ontario Court of Appeal re-
enacted the statutes that had been repealed by the Parker
Ontario Court of Appeal and Krieger Alberta Court of Appeal
and do not accept that Parliament Only Legislates, Courts
Only Abrogate: POLCOA.
So the Long case says the prohibition became invalid again
in late 2003 and not 2001. A limited hangout. If it loses,
who cares? If it wins, it gives the Crown an out to drop the
charges and duck the POLCOA issue on its merits.

CR: The Application was originally scheduled to be heard on
June 16 2008 however, the matter has been adjourned until
Nov 26 2008 in the Superior Court of Justice at 161 Elgin
St. Ottawa Ontario. On that date and time, it is anticipated
that the Application will proceed both in respect of the
Crown's request for dismissal pursuant to the aforementioned
Rule 6.11(2) and if necessary, the arguments concerning the
Application proper.
Yours truly,
Elizabeth O'Grady
Crown Counsel

Cc: James Turner
Attorney General of Canada

JCT: Either way, it doesn't matter what the judge rules
since it's going north to appeal by either losing side. The
enemy is engaged with nowhere to go but up.

And POLCOA is so easy to argue once armed with S.2(2) of the
Interpretation Act and the Phillips, Rogin and Chen
decisions explain why they deemed the prohibitions repealed
and incapable of resuscitation.

The Hitzig Court Justices Doherty, Gouge and Simmons said
Phillips, Rogin and Chen were wrong in deeming the law
repealed pursuant to the Interpretation Act. It should have
been deemed "absent until fixed' by the Hitzig Court. Courts
can resurrect repealed laws (they're even thinking of
resurrecting capital punishment to get rid of Turmel).
We say Phillips, Rogin and Chen are right about POLCOA.
Parliament Only Legislates, Courts Only Abrogate.