John Turmel
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Joined: 07 May 2005
Posts: 424
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 Posted: Wed Mar 15, 2006 8:57 pm Post subject:
TURMEL: Judge Belanger Parliament Bust conviction transcript
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JCT: On March 10, 2006, Ontario Provincial Judge Pierre
Belanger handed down his decision on my Krieger application
to quash the charge of possession for the purpose of
trafficking during the 2-year window after July 31 2001 and
before Oct 7 2003 when the offence of possession was deemed
to be invalid, i.e., "repealed" pursuant to S.2(2) of the
Interpretation Act or "absent" pursuant to the Hitzig judges
decision.
Information No.: 08-20030
ONTARIO COURT OF JUSTICE
BETWEEN: )
HER MAJESTY THE QUEEN ) Allyson Ratsoy for the
) Crown/respondent
AND
JOHN TURMEL ) Self-represented for the
) accused/applicant
BELANGER, P.:
[1] The applicant has admitted the factual allegations which
underpin the charges brought against him. He asks, however,
that the charges against him be quashed based on his
interpretation of R. v. Krieger as well as a claim for abuse
of process.
[2] I reproduce, nearly in their entirety, the Crown's
submissions in response to the application brought by John
Turmel. I am of the view that those submissions accurately
reflect the chronology of events leading to the applicant's
eventual appearance before me. In addition, I agree entirely
with the Crown's analysis of the relevant issues and of the
law and adopt it as my own.
[3] The relevant parts of the Crown's submissions are as
follows:
| Quote: |
Part I: History of the Proceedings |
1. Part I: History of the Proceedings
1. The applicant was charged on May 14, 2003 with possession
of marijuana for the purpose of trafficking. He was found to
have 3.277 kilograms of marijuana in a duffel bag he was
carrying. Although the amount of marijuana in his possession
was over 3 kilograms, the Crown proceeded on a charge of
possession under 3 kilograms, pursuant to sections 5.(2) and
5.(4) of the Controlled Drugs and Substances Act (CDSA),
2. 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.
3. The applicant's trial was initially set to proceed on
November 20,2003. On November 4th, 2003 the trial was
adjourned at the request of the applicant with the consent
of the Crown and a new date was set for June 11, 2004. On
June 4, 2004 a further adjournment was granted at the
request of the Crown with the consent of the applicant and a
new trial date was set for October 22, 2004. On October 22,
2004 the applicant argued a pre-trial application to quash
the charge, which was dismissed by the court. The trial
proper did not commence due to lack of time and a new date
was set for February 10, 2005. On February 2, 2005 the
applicant made another application to adjourn his trial.
This application was remanded to set a date for argument to
May 11, 2005. On that date a new trial date of December 15,
2005 was set, with a reporting date of December 1, 2005. On
the reporting date of December 1st, Belanger J. ruled that
the applicant's application to adjourn and another
application to quash which had been filed should be dealt -
with on the day set for trial by the trial judge.
Applications
4. On May 26, 2003 the applicant brought a "motion to quash
for mandamus and prohibition" in the Superior Court of
Justice. He asked the court to quash the information as it
disclosed no offence known to law. The basis of his argument
was that the decision of the Ontario Court of Appeal in R.
v. Parker', released on July 31, 2000, had invalidated all
prohibitions regarding marijuana contained in the CDSA. This
motion was dismissed by Aitken J. on the grounds that the
declaration made by the Court of Appeal in Parker related
only to section 4(1) of the CDSA and the applicant had been
charged under s.5(2) of that act.
5. The applicant appealed the ruling made by Aitken J. to
the Court of Appeal. The court dismissed the appeal on
October 7, 2003
6. On July 27, 2003 the applicant brought an application in
the Superior Court of Justice to "amend the information or
for particulars" in order to have the word "not" deleted
from the sentence "not exceeding 3 kgs". This application
was dismissed by Lalonde J. on the grounds that he did not
have any jurisdiction to make the amendment requested as the
offence was within the absolute jurisdiction of the
provincial court.
7. On October 22, 2004, a day scheduled for the applicant's
trial, the applicant again brought a motion to quash the
charge against him. He argued, as he had before Aitken J.,
that the offence with which he was charged was "no longer
known to law". The motion was dismissed by Earle-Renton J.
on the grounds that the Parker decision was determinative of
the issue. The applicant's trial did not proceed on this day
and the matter was adjourned to February 10, 2005.
8. On April 19, 2005 the applicant argued before Wright J.
in the Ontario Court of Justice that as on May 14. 2003 he
was in possession of an amount of marijuana greater than 3
kilograms, s. 553 of the Criminal Code did not apply and he
should have an election as to his mode of trial. He stated,
"I did my crime on purpose for the purpose of getting a jury
to discuss and decide on my situation..." Wright J.
dismissed the application, stating that it was within the
Crown's discretion to decide what charge to proceed with and
that "the accused doesn't get a say in what charges are
brought and the consequent mode of trial.."
9. On April 25,2005 the applicant brought a purported
"application for certiorari before Roy J. in the Superior
Court of Justice seeking to quash the decision of Wright J.
The applicant did not identify either in his materials or in
oral submissions the jurisdictional error made by Wright L
such that the remedy of certiorari was available or
appropriate. The application was dismissed by Roy J. without
prejudice to the applicant's right to bring it again, as he
had not provided the court with a transcript of the
proceedings before Wright J.
10. On November 28,2005 the applicant re-launched his
application for certiorari, along with an application for
prohibition, before MacLeod J. of the Superior Court of
Justice. The application for prohibition requested an order
staying the charge "as an abuse of the court process on the
grounds all statutes related to marijuana are of no force
and effect and the Crown knows it". MacLeod J. dismissed the
application for certiorari as she could find no
jurisdictional error made by Wright J. She dismissed the
application for prohibition, finding that the Ontario Court
of Appeal's decision in R. v. Hitzig was binding on her.
11. On December 11,2005 the applicant served the Crown with
notices of appeal to the Ontario Court of Appeal pertaining
to MacLeod J.'s dismissal of his applications for certiorari
and prohibition.
12. At the outset of his trial on December 15,2005 before
Belanger J., the applicant brought an application to adjourn
his trial and sought to argue an application to quash the
charge against him. Belanger J. dismissed the application to
adjourn and declined to hear oral submissions on the
application to quash, requesting that the applicant and
Crown provide written submissions according to a schedule
set by the court,
Part II : Issues and the Law
13. The applicant's Notice of Application asks the court to
quash the charge against on two grounds.
Ground One - the Krieger Decision
14. The applicant seeks an order "quashing charges relating
to marijuana under s.7(1) of the CDSA as unknown to law on
the grounds Parliament has not re-enacted the s.7
cultivation (and by implication s.4 possession) prohibitions
which underpin all other marijuana prohibitions in the CDSA
since they were struck down by the Alberta Court of Appeal
in R. v. Krieger on December 4, 2002."
15. The case of R. v. Krieger6 was concerned with the
constitutionality of the prohibition against the cultivation
of marijuana in the context of Mr. Krieger's production and
use of marijuana to alleviate his suffering from multiple
sclerosis. Acton J. of the Alberta Court of Queen's Bench
held that section 7.(1) of the CDSA, which makes cultivation
of marijuana an offence, offended Mr. Krieger's rights to
liberty and security of the person as guaranteed by section
7 of the Charter of Rights and Freedoms, She therefore
struck down s.7(l) to the extent that it dealt with the
production of cannabis marijuana. However she suspended the
declaration of invalidity for one year in order to give the
federal government to arrange for a legal source of
marijuana to be made available to those who legitimately
required it for therapeutic use.
16. In 2001 the Alberta Court of Appeal extended the
suspension of the declaration of invalidity made by Acton J.
"until further order of the Court". In fact, that suspension
has never been lifted, presumably because subsequent legal
challenges in Ontario resulted in federal regulations
allowing for lawful access to marijuana for therapeutic
use.7 The constitutional defect in s.7(l) of the CDSA, which
led Acton J. to strike down the section, has thereby been
addressed and remedied and the suspension and declaration
have become moot.
17. The applicant's analysis of the effect of the Krieger
decision on the marijuana provisions of the CDSA is flawed.
The authority to issue a declaration of invalidity is found
in section 52 of the Constitution Act, 1982, which says:
s.52(l) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions
of the constitution is, "to the extent of the
inconsistency," of no force or effect, (emphasis added)
18. The Krieger decision affected only s.7(l) of the CDSA
and, as Acton J. was careful to state, only to the extent
that that it dealt with the production of marijuana. The
applicant's assertion that s.7(l) "underpins" all other
marijuana prohibitions in the CDSA is neither factually nor
legally correct. In fact, in the Krieger decision Acton J.
upheld the constitutionality of s.5(2) of the CDSA - the
prohibition against possession of marijuana for the purpose
of trafficking - which had also been challenged by Mr.
Krieger. Section 4.(1) of the CDSA - simple possession - was
not addressed in the Krieger case.
19. In any event, a decision made by an Alberta court has no
binding effect in the province of Ontario. Even if the
suspension of the order striking down s.7(1) of the CDSA had
been lifted in Alberta, this would not have changed the
status of that provision in Ontario. Further, the applicant
is not charged under s.7(l) of the CDSA.
Ground Two - Abuse of Process
20. The applicant further seeks an order staying the charge
against him as an "abuse of the court process on the grounds
all statutes related to marijuana are of no force and effect
and the Crown knows it." Although the basis for this
argument is not explicitly stated, the applicant appears to
be relying on a series of cases concerning the
constitutionality of sections 4.(1) and 7.(1) of the CDSA
which unfolded in Ontario and other provinces between 2001
and 2003. The Crown reference only to those cases which it
considers relevant to the issues the Court.
21. In R. v. Parker8, a decision of the Ontario Court of
Appeal released on July 31, 2000, the court held that the
prohibition on simple possession of marijuana in section 4
of the CDSA must be struck down as it infringed the rights
to liberty and security of the person guaranteed by section
7 of the Charter of Rights and Freedoms in a manner that did
not accord with the principles of fundamental justice. Mr.
Parker suffered from a particularly severe form of epilepsy
which was only moderately alleviated by conventional
treatment. He found that by smoking marijuana he could
substantially reduce the incidence of his seizures and
having no legal source of marijuana, began to grow it
himself. The declaration of invalidity made by the court on
July 31, 2000 was suspended for 11 months to give Parliament
time to develop and legislate an adequate mechanism for
individuals to possess marijuana for valid medicinal
purposes.
22. In response to the Court of Appeal's declaration of
invalidity the federal government enacted the Marihuana
Medical Access Regulations (MMAR), which came into force on
July 30, 2001. Eleven applicants, including Mr. Parker, a
Mr. Hitzig. and Mr. Turmel, then sought orders from the
Superior Court declaring that the MMAR violated their s,7
rights. On January 9, 2003, Lederman J. declared the MMAR
invalid as they failed to adequately provide for a legal,
safe and reliable source of marijuana. He suspended this
declaration of invalidity for six months. All parties
appealed. The Court of Appeal's decision was released on
October 7, 2003 In Hitzig et al v. Her Majesty the Queen,9
23. In Hitzig, the Court of Appeal unanimously dismissed the
federal government's appeal and found that the MMAR were
unconstitutional and a violation of the applicants' section
7 rights as they failed to craft an adequate medical
exemption into the offence of possession of marijuana in
section 4 of the CDSA. Rather than strike down the MMAR in
their entirety and declare s.4 of the CDSA to be of no force
and effect, the Court set aside the declaration of
invalidity made by Lederman J. and crafted a narrower remedy
more specifically targeted to the shortcomings it identified
in the MMAR. The Court itself created a constitutionally
valid medical exemption to s.4 of the CDSA, thereby making
s.4 of full force and effect in Ontario as of October 7,
2003. However, the court found that between July 31, 2001
(the date that the suspension of invalidity declared in
Parker expired) and October 7, 2003, there had been no
constitutionally valid prohibition against the possession of
marijuana in Ontario.
24. On the same day that it released the Hitzig decision,
the Court of Appeal released its decision on the applicant's
appeal of the judgment of Aitken J.1 (See paragraph 4.) The
applicant had argued that the effect of the court's ruling
in Parker was to delete marijuana from schedule II of the
CDSA, therefore rendering all marijuana offences in the CDSA
"of no force and effect".
25. The court held that the applicant's argument was based
on a "fundamental misconception" and said the following:
"The declaration of invalidity made by this court in
Parker... does not delete marihuana from Schedule II of the
CDSA. It simply declares that the reference to marihuana in
Schedule II is of no force or effect for the purposes of the
possession charge in s.4 of the CDSA. The declaration does
not extend to any other section of the CDSA, In particular,
it does not diminish the effect of the listing of marihuana
in Schedule II "for the purposes of s.5(2) of the CDSA. As a
result, the charge of possession of marihuana for the
purposes of trafficking existed on May 26,2003." Thus Aitken
J. was correct to dismiss the appellant's argument and we
would dismiss his appeal.11 (emphasis added)
[4] I am entirely satisfied that the grounds upon which the
application is based have been ruled upon by Courts whose
reasons both bind me and persuade me. I am unable to craft a
decision which is in any way more eloquent or complete in
its analysis than that which as been advanced by counsel for
the Crown. I am not swayed by the applicant's submissions
and entreaties that I decline to abide by the decisions of
hierarchically superior courts. I refuse to do so, both on
principle and because I am in total agreement with them.
[5] The application is dismissed.
[6] The accused admits the factual elements of the Crown's
case and has stated that he had no evidence to call. He has
essentially admitted that only this application stands in
the way of a guilty finding. (See transcript of December 15
at p.3 . He is consequently found guilty of the charge that
brings him to court.
[7] We will now proceed to a sentencing hearing.
Paul R. Belanger
Senior Justice.
JCT: This presumed I didn't want to do a constitutional
challenge or put in a defence of necessity and
justification.
Page 37-38
THE COURT: That's the problem. Of course, I can go through
with the application to quash, but it would've been
preferable to have a complete record of all of the case
before me. 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....
JCT: So I still had the chance to present argument, just no
evidence
MR. TURMEL: Well, then, I have no evidence. I'll have no
evidence to call, Your Honour.
THE COURT: I mean evidence, for example, to show that you
were not in possession, evidence to show that this was not
marijuana, any defence evidence....
MR. TURMEL: No, nothing like that at all. Nothing like that
at all.
JCT: But something like justification, necessity,
constitutional invalidity...
THE COURT: And can you tell me, just so I can gauge
properly, what it is that you might.... And I'm not saying
that I'm forcing you if you say, "I will call that
evidence." I'll leave that open, if that's your desire. But,
what would be the nature of the evidence that you would
think of calling if you did call evidence?
MR. TURMEL: I wouldn't have any evidence to call with
respect to those facts at all.
THE COURT: Okay.
MR. TURMEL: It would be strictly to do with the law, and if
the law's still alive, I'm in big trouble.
THE COURT: Okay.
MR. TURMEL: That's my point. So, there are going to be
no.... I would probably, if the law was judged alive, maybe
even plead guilty, but I've stood mute. But, I just mean
there's no defence to offer, and I'm not going to challenge
any of the facts.
THE COURT: And that was your point.
MR. TURMEL: Yes.
THE COURT: Your point, indeed, was to make a clear and
patent case...
MR. TURMEL: Yes.
THE COURT:...so that the authorities would prosecute, so
that then...
MR. TURMEL: Yes.
THE COURT:...you would have an opportunity to challenge the
legislation...
MR. TURMEL: Yes, Your Honour.
THE COURT:...and that this was...
MR. TURMEL: That's right.
THE COURT:...your desire. Fine. So I'll assume, then, that
on the basis of what you say, that the case is before me...
MR. TURMEL: Yes.
THE COURT:...on the facts.
MR. TURMEL: Yes.
THE COURT: And that there -
MR. TURMEL: There's nothing else coming.
JCT: Except arguments on the facts, lots of them.
THE COURT: - there's no other evidence to be called on the
issue. Obviously, I'm going to refrain from rendering a
decision on guilt or innocence until such time as I have
heard fully the arguments on all sides so that I can make a
decision -- which may be appealed by one side or the other,
but at least there'll be a full and formal record before any
appellate or reviewing tribunal in order to assess the worth
of my own judgment, and then that....And as I say, from
either side. I'm not prejudging the issue in any way. Thank
you.
JCT: I'm going to have to add one ground of appeal, that I
did not get a full defence. Not even "any last words?" |
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