JCT: I've done videos on James Turner's case at
Part 1/2 http://www.youtube.com/watch?v=6QGNY3p4PV8
Part 2/2 http://www.youtube.com/watch?v=FLIh97Blz1o

After the Court of Appeal dismissed James Turner's Inmate
Appeal when he wasn't an inmate, James is seeking leave to appeal
at the top:

File Number: #_________
Appeal Court No: C49904
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
BETWEEN:
James Earl Turner
Applicant
Appellant in appeal
and
Her Majesty The Queen
Respondent
Respondent in appeal


NOTICE OF APPLICATION FOR LEAVE TO APPEAL
JAMES EARL TURNER, APPLICANT
(Pursuant to S.59(4) of the Supreme Court Act)

TAKE NOTICE that Applicant James Earl Turner Turmel hereby
applies for leave to appeal to the Court in forma pauperis from
the judgment of Ontario Court of Appeal Justices Stephen Goudge,
Robert Armstrong, and Robert Blair dismissing the Application
for Leave to Appeal and Inmate Appeal due to the Inmate not
appearing for the hearing.

THE GROUNDS ARE that since the Appellant was not an inmate,

a) the Registrar of the Ontario Court of Appeal erred in
scheduling the appeal without having first verified that Rule
18(3) requiring transcripts, Rule 16(1) requiring facta, Rule
18(2) requiring Certificates of Perfection and Rule 18(1)
requiring proofs of service for non-inmate appeals had been
complied with;

b) the Court of Appeal erred in using Inmate Appeal Rules;

c) the Inmate Appeal Court erred in dismissing the Inmate's
Application for Leave to Appeal when no Inmate Application for
Leave to Appeal had been filed by the non-inmate Appellant;

d) the Inmate Appeal Court erred in dismissing an Inmate Appeal
as abandoned because the guards couldn't find the prisoner.
Dated at Ottawa on Aug 10 2009.
_______________________
For the Applicant:
James E. Turner
C-2501 Prince of Wales
Ottawa, ON, K2C 3H1
Tel/fax: 613-212-3344/221-9042
Email: jamesturner1326@...

APPELLANT'S MEMORANDUM
JAMES EARL TURNER, APPLICANT
(Pursuant to S.59(4) of the Supreme Court Act)


PART I - STATEMENT OF FACTS

1. On Nov 26 2008, Applicant's application for an Order of
Prohibition was dismissed by Ontario Superior Court Justice
Lalonde.

2. On Dec 3, transcripts were ordered in an appeal and received
by the Court Registry on March 30 2009.

3. Ontario Court of Appeal Registrar Huguette Thompson informed
Appellant the transcript prepared for the appeal by the Ottawa
Court Reporter had been improperly prepared. Unfortunately,
while upgrading the transcript, the Court Reporter died and
after numerous delays, the transcript was finally filed on Aug 7
2009.
(Ex. A of the Affidavit of James Turner)

4. On June 1 2009, Appellant received the Appeal Books from the
Crown with a notice that the appeal had somehow been scheduled
for hearing on June 16 2009 without any of the required
documentation. No transcripts, no factums, no Certificate of
Perfection.

5. Crown Maureen McGuire explained in her June 5 2009 email:
MM: Thank you for forwarding a copy of Mr. Turner's email to our
office. The Crown is opposed to the adjournment requested by Mr.
Turner. The Appeal Book is complete and contains all the
material required for the hearing of this appeal.

6. The Registrar failed to verify that the appeal had been
perfected and took the Crown's word that it contained all the
material required for the hearing of this appeal when it omitted
the required factum of argument from each party.

7. MM: I have confirmed with Crown counsel on the application
below that there was no evidence heard in the court below, and
therefore the transcript Mr. Turner is waiting for would simply
be submissions. Submissions are not normally part of the
required transcripts for an appeal, unless otherwise ordered by
the court.

8. Transcripts are required for an appeal, unless otherwise
ordered by the court. Not by the Crown Attorney.

9. MM: Mr. Turner filed his notice of appeal more than four
months ago...

10. Any delay was due to the death of the court reporter, not
due to the Appellant.

11. MM: Mr. Turner also asked that his appeal be moved to
Toronto... While we have no preference as to whether this appeal
is heard in Toronto or in Kingston, I understand that the
Toronto list this month is very lengthy and that this matter can
more conveniently be heard in Kingston.

12. Skipping the factums was just a matter of convenience but it
is wrong to mis-label the Appellant as an inmate in an effort to
evade compliance with the normal Rules of Procedure.

13. MM: It is of some importance that this appeal not be
delayed.

14. It was of more importance that all the required
documentation should be filed.

15. Though the appeal had been listed for hearing in the
Kingston Correctional Services building, there was no suspicion
that Appellant was being called before the Inmate Appeals Court.
Appellant had requested being heard at Osgoode Hall in Toronto
like all other normal non-inmate appeals despite the Crown's
claims to convenience.

16. Rule 16(1) "EXCEPT IN AN INMATE APPEAL, all parties to an
appeal shall deliver a factum." There are no exceptions for
skipping the filing of factums in a non-inmate appeal so
Appellant asked the Registry if this R. v. Turner appeal was the
first to go to hearing without any factums in the record?

17. Rule 18(1) "EXCEPT IN AN INMATE APPEAL, the appellant shall
serve on every other party to the appeal one copy of the appeal
book, one copy of the transcript and one copy of the appellant's
factum and immediately thereafter shall file with the Registrar
proof of service of the appeal book, the transcript and the
factum..." There are no exceptions for skipping the filing of
the transcripts, factums, proofs of service in a non-inmate
appeal either.

18. Rule 18(2) The appellant shall file with the Registrar two
copies of a certificate of perfection stating..." It doesn't
even say "except in inmate appeals," so everyone's got to file a
Certificate of Perfection. Is this the first appeal ever
scheduled without a Certificate of Perfection or has the Crown
been skipping them for inmate appeals already?

19. Rule 18(3) "The appellant shall perfect the appeal within 90
days after the transcript has been delivered to the Court of
Appeal." Transcripts were mailed to the Court of Appeal on Aug 7
2009 leaving Appellant until Nov to perfect the appeal.

20. Appellant complained repeatedly to the Registrar about the
failure to comply with the normal rules of procedure for non-
inmate appeals and was told that the hearing of his appeal for
June 16 2009 before Inmate Appeals Court was now a fait
accomplit which could only be changed by Order of one of the
judges.

21. Appellant brought these irregularities to the attention of
Justice MacPherson and asked for an Order quashing the date of
the hearing until of the appeal has been perfected. Justice
MacPherson dismissed the motion to quash the hearing until the
appeal had been perfected saying Appellant would be told at his
appeal why they were not proceeding by the normal rules.

22. Justice MacPherson also approved the unobtrusive way of
taping the proceedings for Appellant's own notes with a small
tape recorder.

23. Before the hearing of the appeal, a Court of Appeal judge
died and the appeal was delayed.

24. Appellant continued to try to find out how the Crown was
able to schedule the hearing of the incomplete appeal without
complying with Rule 18(3) requiring transcripts, Rule 16(1)
requiring facta, Rule 18(2) requiring Certificates of Perfection
and Rule 18(1) requiring proofs of service?

25. Appellant again received notice from the Crown that the
appeal was once again scheduled for hearing in Kingston on Aug
18 2009 upon the non-perfected record complained of. Again, no
mention that Appellant was being called before an Inmate Appeals
Court.

26. Finally, on Thurs Aug 12 2009, Sandra Theroulde Deputy
Registrar and Manager of Court Administration emailled:
ST: this appeal was originally scheduled to be heard on June 16,
2009 on the basis of the crown's representation that it was
ready to be argued."

27. No transcripts, no factums, no certificates of completion
but the Crown says it's ready and the Registrar doesn't check?
It is the Appellant who files the Certificate of Perfection, not
the Respondent, wouldn't the Registrar know that? The
Respondent's assertion is not a valid substitute for an
Appellant's Certificate of Perfection.

28. ST: You applied for an adjournment on the basis that the
matter was not yet ready to proceed.

29. Despite no transcripts, no factums, no certificates of
completion, it was still going to take more convincing to show
that the matter was not yet ready to proceed.

30. ST: Your request was dealt with by Justice MacPherson on
June 9, 2009. He refused to grant an adjournment but indicated
that you could renew your request before the panel scheduled to
hear the appeal.

31. Lack of transcripts, factums, certificates of completion
couldn't convince Justice MacPherson that the matter was not yet
ready to proceed. Of course, sitting on Inmate Appeals Court,
judges don't expect transcripts or facta in aid of argument.

32. ST: Unfortunately, for reasons beyond our control the
appeals scheduled for hearing on June 16, 2009 had to be
adjourned. They have been re-scheduled for hearing at the next
sitting of appeals in Kingston which occurs on August 18, 2009.
You are still entitled to request an adjournment although you
should be prepared to argue your appeal if the adjournment is
refused.

33. Appellant was expected to prepare to argue his Inmate Appeal
without any documentation if the other two judges on the Inmate
Appeals Panel agreed with Judge MacPherson that no documentation
is the norm in Inmate Appeals, and for non-inmates too.

34. Believing the Registrar's failure to explain how the Crown
has been able to circumvent the rules meant the Registrar had
probably helped in the circumvention of the rules, Appellant
emailed the Registrar demanding a faxed copy of the Certificate
of Perfection or an Order dispensing with the rules of procedure
if they wanted him to attend the hearing of the non-perfected
appeal before the Kingston Inmate Appeals Court.

35. With no Certificate of Perfection forthcoming, Appellant did
not attend the Inmate Appeals Court.

36. On Aug 18 2009, Ontario Court of Appeal Justices Stephen
Goudge, Robert Armstrong, and Robert Blair ruled:
"THIS APPLICATION FOR LEAVE TO APPEAL and the APPEAL by way of
inmate appeal by the above-named against the order of the
Honorable Justice Lalonde was considered on this day, at
Kingston, Ontario.
ON READING the material filed, on hearing the submissions of
counsel for the Crown, the appellant not appearing although the
case was duly called,
THIS COURT ORDERS that the appeal is dismissed as abandoned."

PART II - POINTS OF OBJECTION:

37. A) the Registrar of the Ontario Court of Appeal erred in
scheduling the appeal without having first verified that Rule
18(3) requiring transcripts, Rule 16(1) requiring facta, Rule
18(2) requiring Certificates of Perfection and Rule 18(1)
requiring proofs of service for non-inmate appeals had been
complied with;

38. B) the Court of Appeal erred in using Inmate Appeal Rules;

39. C) the Inmate Appeal Court erred in dismissing the Inmate's
Application for Leave to Appeal when no Inmate Application for
Leave to Appeal had been filed by the non-inmate Appellant;

40. D) the Inmate Appeal Court erred in dismissing an Inmate
Appeal as abandoned because the guards couldn't find the
prisoner.

PART III - STATEMENT OF ARGUMENT

41. A) The Crown side-stepped the Rules of Procedure by mis-
labeling the Appellant an inmate so as to take advantage of
exemptions to the normal rules that Appellant was due, facta of
arguments from both parties in the record.

42. The Registrar of the Ontario Court of Appeal was derelict in
accepting a representation of the Crown that the appeal was
ready rather than checking the files to verify if the appeal had
been perfected. It is the Appellant who files the Certificate of
Perfection before scheduling an appeal, not the Respondent who
makes an assertion.

43. Since Appellant was not an inmate no matter how convenient
the Crown thought treating him as such was, the Registry still
could not schedule the appeal without having first verified that
Rule 18(3) requiring transcripts, Rule 16(1) requiring facta,
Rule 18(2) requiring Certificates of Perfection and Rule 18(1)
requiring proofs of service for non-inmate appeals had been
complied with. Appellant can see that once the case had been
slipped into the Inmate Appeals stream, other than Appellant
emailing a tirade about it to the Registrar, no inmate appeal
clerk one would notice a lack of facta and transcripts that are
not required in non-inmate appeals.

44. B) The Court erred in proceeding by way of Inmate Appeal
Rules because the Appellant was not an inmate. The Crown makes
it sound like a matter of convenience going by way of Inmate
Appeals Court in Kingston rather the overly-booked Toronto venue
which is belied by their taking advantage of the exemption to
filing documentation in inmate appeals. They say they were
prepared to argue the appeal in Kingston or Toronto but did not
have the documentation needed for Toronto.

45. C) The Inmate Appeal Court erred in dismissing the Inmate's
Application for Leave to Appeal when no Inmate Application for
Leave to Appeal had been filed by the non-inmate Appellant for
the Inmate Appeals Court to dismiss.

46. D) The Inmate Appeal Court erred in dismissing an Inmate
Appeal as abandoned because the Court should have realized that
this could not have been an inmate appeal when the guards
couldn't find the prisoner.

PART V - ORDER SOUGHT

Applicant seeks an order granting leave to appeal the judgment
of Ontario Court of Appeal Justices Stephen Goudge, Robert
Armstrong, and Robert Blair which dismissed the Appellant's
Appeal against the Nov 26 2008 decision of Justice Lalonde.

PART VI - TABLE OF AUTHORITIES
None

PART VII - REGULATIONS BEING RELIED ON
Criminal Appeal rules

FACTUMS
Heading of factum
16. (1) Except in an inmate appeal, all parties to an appeal and
persons who have been granted the right to be heard shall
deliver a factum, to be entitled and described on its cover as
"Appellant's Factum", "Respondent's Factum" or as the case may
be.

PERFECTING THE APPEAL
Service and filing
18. (1) Except in an inmate appeal, the appellant shall serve on
every other party to the appeal and any person entitled by
statute or an order of the court to be heard upon the appeal,
one copy of the appeal book, one copy of the transcript and one
copy of the appellant's factum and immediately thereafter shall
file with the Registrar proof of service of the appeal book, the
transcript and the factum and,
(a) in appeals directed to be heard by five judges, five copies
of the appeal book and six copies of the appellant's factum; and
(b) in all other appeals, three copies of the appeal book and
four copies of the appellant's factum.

Certificate of perfection
(2) The appellant shall file with the Registrar two copies of a
certificate of perfection stating,
(a) that the appeal book, transcript and appellant's factum have
been served and filed;
(b) that the transcript is complete;
(c) the estimated total length of time for oral argument; and
(d) the name, address and telephone number of the solicitor for
each party to the appeal, unless the respondent is the Attorney
General, and of any person entitled by statute or an order to be
heard on the appeal, or where a party or person acts in person,
his or her name, address for service and telephone number.

Time for perfection
(3) Except in an appeal from the decision of a judge of the
Ontario Court (General Division) not sitting as a trial judge
where no transcript is required other than that filed in the
Ontario Court (General Division) and an appeal from sentence
only, the appellant shall perfect the appeal by complying with
subrules (1) and (2) within ninety days after the transcript has
been delivered to the Court of Appeal or such longer period as
is permitted by a judge or the Registrar.

Dated at Ottawa on Aug 10 2009.
For the Applicant:
James E. Turner
C-2501 Prince of Wales
Ottawa, ON, K2C 3H1
Tel/fax: 613-212-3344/221-9042
Email: jamesturner1326@...