TURMEL: Reply to Crown's Krieger Quash submissions

[John Turmel]

JCT: This is in response to the Crown's submissions at
http://yahoogroups.com/group/medpot/files/daren4cm.txt

Court File No. 03-20030

IN THE ONTARIO COURT OF JUSTICE
BETWEEN:
JOHN TURMEL
Applicant
And
HER MAJESTY THE QUEEN
Respondent

APPLICANT'S REPLY TO WRITTEN SUBMISSIONS OF THE CROWN

JCT: I will first point out and corredct errors in the
Crown's submissions on the issues and deal with those
issues at the same time.

1) Jurisdiction of court on amount greater than 3Kg.

CR: 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),

JCT: Every judge so far has been stunned to find out the Crown
admitted that the amount of the matter in question was more
than 3Kg. Why would all the judges challenge me that there was
as yet no evidence of more than 3Kg unless the amount
mattered?

CR: 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.

JCT: This is only true when the amount of the matter is less
than 3Kg. It's not true here with over 3Kg which should be
dealt with under s.5(3), not s.5(4).

CR: 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....
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. 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.

JCT: Applicant had pinpointed the lack of jurisdiction on the
amount of the matter being greater than 3Kg.

CR: 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.

JCT: Crown Attorney David Frankel argued in the Supreme
Court of Canada Krieger Memorandum that s.4(1) was also "by
implication" struck down with s.7(1). Ontario Superior Court
Justice Earle-Renton stated during my hearing that
possession for the purpose can't be a crime if possession
itself is not a crime. The thought crime contained in s.5(2)
is not possible all alone.

CR: 5. The applicant appealed the ruling made by Aitken J.
to the Court of Appeal. The court dismissed the appeal on
October 7, 2003

JCT: The R. v. Turmel ruling was that there was no need to
reprint the legislation when laws are struck down, that the
courts would remember which written laws are valid and which
are not, This not quite strict interpretation of criminal
statutes set a precedent that was inscribed in the Martin's
Criminal Code of Canada and resulted in hundreds of
thousands of Canadians charged and convicted while the law
was invalid and the last 4000 charges being stayed.
The application for leave to appeal the "no need to reprint,
we'll remember" decision was ready to be heard by the
Supreme Court panel when it was aborted by Justice Binnie
for getting one document in late. The "judges will remember
which written laws are valid and which are not" decision has
never been adjudicated on its merits, yet, but is going to
be now again.

CR: 10. On November 28,2005... MacLeod J. dismissed the
application for prohibition, finding that the Ontario Court
of Appeal's decision in R. v. Hitzig was binding on her.

JCT: Wrongful orders do not have to be obeyed. Ontario Judge
Edward asked the Crown in the Nielsen case to explain where
the Court of Appeal got the power to resurrect a statute
that had been struck down and the Crown said he could find
no such power but that they wouldn't have if they couldn't
have so they can. And it was binding on him. He obeyed and
continued the prosecution. Once penal sanctions have been
deemed to be repealed pursuant to s.2(2) of Parliament's
Interpretation Act, only Parliament has the power to
resurrect invalidated laws, not three power-mad jurists. And
since prohibition of epilepsy anti-seizure medicine has
resulted in more dead epileptics than necessary, lives have
been and are still being needlessly lost due to their error.
There is never reason to obey laws that result in genocide.

CR: 7) Ground One - the Krieger Decision
Whether an Appellant's stay of decision ends with status or
must be lifted.

CR: 15... Acton J... 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...
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,

JCT: This is the crux of the issue. That suspension did not
have to be lifted because it expired when the Alberta Court
of Appeal became functus officio after it handed down a
further Final Order. A Final Order is the further Order of
the Court. Am I to prove that there are zero precedent cases
where interim orders pending appeal last past the appeal
when the court became functus officio? Or should the Crown
show just one where an Appellant's stay extended beyond the
lapse of the Appellant's status at the further Final Order
of the Appeal? The Cornelssen transcript of the exchange
with Scott Couper, Crown Attorney in the Krieger appeal has
just been received and will be mailed to the Court as
Appendix 18 but can be read immediately at
http://yahoogroups.com/group/medpot-discuss/files/cornqtrs.txt

"Q: Would you have had the right to ask for an extension of
the stay? Can you conceive of any circumstances where you
could ask for an extension of the stay if you were not the
appellant?
A: If we weren't the appellant?
Q: If we weren't the appellant.
A: It was a ---- it was -- it would be a -- it's the
appellant that has the right to ask for the stay."
[...

Q: So on the bottom of the -- of the page we see the
appellant seeks an extension of the constitutional exemption
and suspension of the order, and I've highlighted, Until the
final disposition of this appeal.
A: Yes.
Q: Now, does that not mean that when the appeal is over, the
extension is over?
A: Yes. If you look at page 10 of the -- of the brief
however, sir, under the title Relief Sought, I asked for an
extension of the period suspending the effect or enforcement
of the Trial Judge's order striking down Section 7(1) of the
Controlled Drugs and Substances Act from one year as
originally ordered, to until determination of the within
appeal or until further order of this Honourable Court.
[...

Q: THE ACCUSED: In -- in Mr. Couper's document. And Mr.
Couper, if you can find it first, feel free to bring it up.
A: Are you referring to paragraph 10?
Q Could you read it to me, please?
A This Honourable Court's authority to extend the stay
derives from Section 686(3) of the Criminal code.
Q Yes, yes. That's what I'm referring to.
A All right.
Q Now, it seems to me that if you were not the appellant the
Judge would not have the power to grant that extension, is
that a correct interpretation of that?
A Well, it's -- it's -- it's triggered by an appeal.
Q: Yes, yes --
A Yes.
Q: So no appeal, no right to grant an extension.
A: Yes.
Q: So you couldn't just walk in there and say, Gee, we
really didn't like that decision and we'd like it suspended
for some indefinite period. It depends upon the appeal?
A: Yes.
Q: So my point is that when the appeal has been heard then
on December the 4th and a final judgment has been passed
down, that the appeal is ordered. A final order has been
issued, The appeal is over. Now, how can Mr. -- Judge
O'Leary's extension possibly last beyond the appeal?
A: Well, the order -- the order of Justice O'Leary is clear,
sir. It says until further order of the Court. And on
December 4th, 2002 when the appeal was heard the Court --
the Court of Appeal declined to address the issue of whether
the suspension should stay or remain, preferring instead
that a full hearing be held to determine that.

JCT: It is a ridiculous assertion that the Court of Appeal
would suggest a hearing with evidence on what the government
had done to comply with Acton J.'s decision when the Dec. 4
2002 decision in Appendix #2 has line 6 of 7 stating:
"Nor are we satisfied that the trial judge imposed any
positive obligation on the Crown to ensure supply. The trial
judge struck s.7(1). Her order imposed no obligation."

JCT: So an assertion that the court insisted upon a hearing
with evidence presented on what they had done to comply with
the judge's obligations is contradicted my the court's own
ruling that she had imposed no obligations to be met!

CR: 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.

JCT: The MMAR was fixed too late by the Ontario Court of
Appeal to avoid the invalidation; on Oct 7 2003, three years
after her ruling in December 2000 and one year after the
Alberta Court of Appeal dismissed the appeal in December
2002. During the whole time, there was an absence of
constitutionally acceptable medical exemption which is why
the Crown stayed charges against 4000.

CR: 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.

JCT: Crown Attorney David Frankel argued s.4(1) was by
implication also struck down in Krieger and Justice Earle-
Renton said the crime of possession for the illegal purpose
was by implication connected to there existing a crime for
possession. Makes sense to me.

CR: 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.

JCT: Section 4.(1) of the CDSA does not include the word
"simple" and possession was, by implication, addressed in
the Krieger case.

CR: 19. In any event, a decision made by an Alberta court
has no binding effect in the province of Ontario.

JCT: Stare decisis does not apply to equivalent courts but a
decision made by Alberta's highest court does have a binding
effect on lower courts in Canada just as the Ontario Court
of Appeals declaration that the prohibition had been
invalidated on Terry Parker Day 2001 was binding on all the
lower courts of other provinces which stayed the 4000
remaining charges, if not expunge the invalid convictions
they handed down nor apologize to their victims for the
court's errors.

CR: Even if the suspension of the order striking down s.7(1)
of the CDSA had been lifted in Alberta,

JCT: Or had expired as the transcript of the Cornelssen
application to quash shows.

CR: this would not have changed the status of that provision
in Ontario.

JCT: This court must decide if stare decisis continues to
apply to lower courts, Your Honour included, who all had to
stay those 4000 charges in December 2003 because only one
appellate court, the Ontario Court of Appeal, struck down
the possession law for when the Alberta Court of Appeal
struck down the cultivation law.

CR: 21.... Mr. Parker... found that by smoking marijuana he
could substantially reduce the incidence of his seizures..

JCT: Not "substantially reduce" but "prevent." Since Parker
has had full-time access to marijuana whenever he felt the
aura of a seizure coming on, he says he has had only one
seizure in the past 9 years from more than 80 per day. This
is important to stress when pointing out how many epileptics
could have been saved but were not due to the court's supra-
jurisdictional resurrection of a killer law.

CR: 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.

JCT: Justice Lederman ruled that I had no status to
challenge the Marijuana Medical Access Regulations because I
a healthy person and they do not apply to me. Fortunately, I
was challenging the CDSA prohibition system that was
affecting me, not the MMAR permission system which was not,
but Justice Lederman's confusing me with the sick has been
passed along. Also, neither had Parker or Paquette
challenged the MMAR but we all sought to have the CDSA
prohibition declared invalidated in 2001 so we wouldn't need
any exemptions at all.

CR: 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.

JCT: In the Hitzig case while dismissing our imagined
challenge to the MMAR. Even the later Court of Appeal noted
he ignored our real challenge to the CDSA before they
declared the Parker decision to have taken effect and
resulting in the 4000 stays.

CR: He suspended this declaration of invalidity for six
months.

JCT: Before this, on March 15 2002, Ontario Superior Court
Justice Pitt had found that the government has not complied
with the Ontario Court of Appeal's ruling and extended the
exemption granted to Parker by that court until the
government complies.

CR: All parties appealed.

JCT: Parker, Turmel and Paquette appealed and were the
Appellants, the Crown was the Respondent and Cross-appealed
and the Hitzigs were only Respondents in the Cross-appeal.
So Parker, Turmel, Paquette appealed forcing the Crown to
respond, the Respondent Crown cross-appealed forcing the
Hitzigs to respond in the cross-appeal. On Jun 25 2003, the
style of cause correctly showed
http://www.ontariocourts.on.ca/decisions/2003/june/parkerM29602.htm

COURT OF APPEAL FOR ONTARIO
BEFORE: CARTHY J.A. (IN CHAMBERS)

RE: TERRANCE PARKER (Appellant and Respondent in Cross-
appeal) - and -
HER MAJESTY THE QUEEN (Cross-appellant and Respondent in
Appeal)
BETWEEN: WARREN HITZIG ET AL. (Cross-appellants and
Respondents in appeal) - and -
HER MAJESTY THE QUEEN (Appellant and Respondent in Cross-
appeal)
BETWEEN: JOHN C. TURMEL ET AL. (Appellants and Respondents
in Cross-Appeal) - and -
HER MAJESTY THE QUEEN (Cross-appellant and Respondent in
appeal)

In the later decision, the court switched the order of the
names in the style of cause to highlight the "Respondents in
the cross-appeal."

http://www.ontariocourts.on.ca/decisions/2003/october/hitzigC39532.htm
BEFORE: DOHERTY, GOUDGE and SIMMONS JJ.A.

BETWEEN: WARREN HITZIG, ALISON MYRDEN, MARY-LYNNE CHAMNEY,
CATHERINE DEVRIES, JARI DVORAK, STEPHEN VAN DE KEMP, DEBORAH
ANNE STULTZ-GIFFIN AND MARCO RENDA Respondents/Appellants in
Cross-Appeal - and -
HER MAJESTY THE QUEEN Appellant/Respondent in Cross-Appeal

AND BETWEEN:
TERRANCE PARKER Appellant/Respondent in Cross-Appeal - and -
HER MAJESTY THE QUEEN Respondent/Appellant in Cross-Appeal
AND BETWEEN: JOHN C. TURMEL AND MARC J.J. PAQUETTE
Appellants/Respondents in Cross-Appeal
HER MAJESTY THE QUEEN Respondent/Appellant in Cross-Appeal

Also, the Court of Appeal mislabelled the mislabelled the
Hitzig group as Appellants in the cross-appeal which they
had not initiated and Crown as the Respondent of the cross-
appeal that it had initiated.

CR: 23. In Hitzig, the Court of Appeal unanimously dismissed
the federal government's appeal

JCT: The government did not appeal, we did.

CR: 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,

JCT: Despite the Parker Court having said it was not up to
the courts to so but up to Parliament!

CR: thereby making s.4 of full force and effect in Ontario
as of October 7, 2003.

JCT: Once the prohibition had been invalidated for 2 years,
it was too late for any court to bring it back to life. Then
only Parliament could be making s.4 of full force and effect
in Ontario after it had been deemed repealed. Courts can't
bring the capital punishment back for the same reason.

CR: 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.

JCT: Once the prohibition was not constitutionally valid,
pursuant to the Interpretation Act, it had to be deemed
repealed, not absent.

CR: 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".

JCT: Since the government did not reflect the invalidation
by adding "except marijuana" to the prohibition of anything
on the Schedule of banned substances.

CR: 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)

JCT: Yes, the court did say there was no need to reprint new
legislation, no need to write it down, the courts will
remember which written laws are valid and which are not.

CR: 26. It is respectfully submitted that the grounds upon
which this application is based been ruled upon by the
Ontario Court of Appeal and said ruling is binding on this
Court. Both of the grounds stated by the applicant in his
Notice of Application to Quash are premised on the argument
that all prohibitions against marijuana in the CDSA have
been "struck down" or "are of no force and effect", This is
the precise point addressed by the Court of Appeal in its
ruling on R. v, Turmel, quoted above in paragraph 25, and
characterized by the Court as a "fundamental misconception".

JCT: No court is bound to follow a wrong order. The Court of
Appeal erred in advising courts to ignore the Interpretation
Act Section 2(2) that says struck down statutes are to be
deemed repealed and to only deem them absent until fixed by
courts, which the Parker Court said it should not do. If the
Parker Court would not do Parliament's job and craft an
exemption, why should the Hitzig Court?

The Section 4(1) prohibition on possession of marijuana was
struck down by the highest court in Ontario which was
binding by stare decisis on all lower courts of Canada where
the 4000 charges were stayed and the Section 7(1)
prohibition on cultivation (and my implication section 4(1)
possession) of marijuana was struck down by the highest
court in Alberta which, not overturned by the Supreme Court,
is binding on all lower courts in Canada.

You have been asked by the Crown to ignore stare decisis.
You have been ordered by the highest court in Ontario to
ignore Parliament.
You have been beseeched by The Engineer to your your duty to
justice and not obey evil orders from above. Given the
genocide of the epileptics by the prohibition of the best
anti-seizure medication available, disobeying the evil order
that occasioned such slaughter is a matter of national
importance.

From my poem on battling the genocide of usury at
http://www.cyberclass.net/turmel/pombank.htm

EQUATION OF RESPONSIBILITY
I pointed out they had the might to instantaneously,
Effect repair on our industrial capacity.
It's just like a conveyer belt with people in a line,
Who fall into abyss of Luciferian design.
If you could press a button and cut power to the beast,
The belt would have momentum but you'd lose the very least.
With the production maximized of butter, not of guns,
We still could not get there in time for all the weakest ones.
So there would be a finite loss of souls until the day,
When all may access credit and for life support may pay.
But if you'd waited for a while before you used your might,
You'd lose some extra souls for failing to so expedite.
And if you had refused to press the button to this day,
It would, on you, the blame for every fallen soul we'd lay.
With simple mathematics we can count the number who,
Have perished by inaction of the men with power few.
The number of souls perishing, all due to the delay,
Is equal to the number who do perish on that day.
With 40,000 children dying every single day,
Responsibility belongs to those who had the say.
Since all the judges had the power to compel the banks,
To fix the killer program so they don't deserve our thanks.
The number they must answer for which day to day does climb,
Is equal to the number who have perished since that time.
Each motion was a shot on goal, a chance to fix the flaw,
I took as many as I could but interest is law.

JUDGES RESPONSIBLE
Six times I went right to the top and all to no avail,
Since they found it too hard to grasp, the motions all did fail.
The judges all ruled that they failed to see what they could do,
They could not change the software to the service charges few.

JCT: This is a similar though less murderous situation where

"It's just like a conveyer belt with epileptics in a line,
Falling 4 per day into abyss of Luciferian design.
If you could press a button and cut power to the beast,
The belt would stop its running so you'd lose the very least.
But if you'd waited for a while before you used your might,
You'd lose four extra souls a day for failing to so expedite.
And if you had refused to press the button to this day,
It would, on you, the blame for every fallen soul we'd lay.
With simple mathematics we can count the number who,
Have perished by inaction of the men with power few.
The number of souls perishing, all due to the delay,
Is equal to the number who do perish on that day.
With four new epileptics dying each and every day,
Responsibility belongs to you who had the say.

Dated at Brantford on February 26 2006
____________________________
For the Applicant/Accused
John C. Turmel, B. Eng.
8-37 Colborne E.
Brantford, N3T 2G3
Tel/Fax: 519-753-0645
Email: turmel@ncf.ca

For the Plaintiff:
Allyson Ratsoy
Federal Prosecution Service Ottawa-Gatineau
160 Elgin St. #2403 Ottawa, K1A 0H8
Tel: 613-941-6656 Fax: 613-957-9043
Email: allyson.ratsoy@justice.gc.ca

JCT: Judge Belanger hands down his decision on March 10 in
Ottawa in courtroom #7. If the judge decides that the law
has been resurrected by the higher court, then I'll have to
file my constitutional motion to argue that the law is bad
after losing that the law was invalidated.

[w_b_ryan@yahoo.com]

John Turmel drinks his own piss.

Lest anyone suspect that this is intended by me to be
an egregious insult to this one man freakshow, he
proudly announced yesterday to the twenty or thirty
USENET lists he routinely spams that he does so:-
http://www.geocities.com/w_b_ryan/turmel-urine.txt
--------------------------

JCT: And yet, despite arguments between today's
practitioners, yesteryear's practitioners had little
else to use as a powerful disinfectant and curative.
They had to know what I have experienced...

"Emmanuel Konig, of Basel, in his book The Animal
Kingdom (1683) recommended drinking one's urine to
heal heartburn, depression, gout, toothaches, colic,
jaundice, and high fevers. Daniel Bockher, a German
physician, in 1622 published a popular work titled
Medicus Microcosmos. It praises the healing properties
of urine, excrement, lice, sperm, tapeworms, and ear
wax."

JCT: I can attest it works for my heartburn! I went
from one roll of Rolaids per week to two rolls per
year!

[Google]