TURMEL: Ray Turmel in Supreme Court for Quash before Prelim JCT: This is really the weirdest case Ive ever seen. Heres Rays Application for Leave to Appeal the Quebec Court of Appeals decision not to stop his Preliminary Inquiry from taking place before his pre-plea Motion to Amend/Quash!! IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE QUEBEC COURT OF APPEAL) BETWEEN: Raymond Turmel Applicant Appellant in appeal and Her Majesty The Queen Respondent TABLE OF CONTENTS RAYMOND TURMEL, APPLICANT 1. Notice of Application for Leave to Appeal..........1 2. Applicants Certificate............................? 3. Oct 1 2013 Order of Bellehumeur J..................? 4. Nov 8 2013 Order of Vauclair J.C.A.................? 5. Dec 13 2013 Order of Bourque J.C.S.................? 6. Feb 7 2014 Order of Bellehumeur J..................2 7. May 22 2014 Order of Sirois J......................2 8. May 22 2014 Reasons of Sirois J. .................4 9. Jun 9 2014 Order of Hesler, Leger, Savard J.A.....3 10 Applicants Memorandum............................ NOTICE OF APPLICATION FOR LEAVE TO APPEAL RAYMOND TURMEL, APPLICANT (Pursuant to Rule 25 of the Supreme Court Rules) TAKE NOTICE that Applicant seeks an Order overturning the June 9 decision of the Quebec Court of Appeal and striking down the precedent rulings of the Quebec Superior Court that a S.601 Motion to Amend/Quash: A) needs a Notice of No Constitutional Question; B) needs to be heard by the Trial Judge Only with leave. THE GROUNDS OF APPEAL are that the Criminal Code clearly states that A) a Notice of Constitutional Question is unnecessary for non-constitutional S.601 motion; B) a S.601 Motion may be sought without leave before the Accused has pleaded before a Trial Judge. Dated at St-Jerome on Aug 8 2014. For the Applicant: Raymond J. Turmel APPLICANTS MEMORANDUM RAYMOND TURMEL, APPLICANT PART I - OVERVIEW 1. Ray Turmel, a MMAR Marijuana Exemptee, was charged under a) S.7(1) b) (2)(b) of the CDSA with production too many marijuana plants while possessing 4 pounds toward an 11 pound storage limit. The plant limit will be challenged as an unconstitutional limitation when logic would dictate that storage amount be the limiting parameter. 2. Before the Accused has been offered the chance to plead, a Preliminary Inquiry was scheduled for the presentation of evidence. 3. Accused filed a motion under S.601 of the Criminal Code (Amending the Indictment) to quash the counts therein. In Ontario, the Motion to Quash before the accused has pleaded is heard before the evidence is presented and before the Accused has pleaded. In R. v. John Turmel [1994] the motion to Quash was heard by Ontario Provincial Court Judge Nadelle within a week of the charge, the trial was held on the indictment a year later. In R. v. James Turner [2007], the motion to Quash was dismissed by Justice Ray and the trial is now about to commence in 2014. 4. At the Oct 1 2013 hearing, the Crown argued that deciding whether the counts survive before presenting evidence at a Preliminary Inquiry was putting the cart before the horse, the Court struck the Quash Motion from the docket ruling it was an issue for the Superior Court of Quebec. 5. On Nov 8 2013, a Motion to Quash was dismissed by Superior Court Justice Vauclair J.C.A for no jurisdiction without a Notice of Constitutional Question. The new precedent of needing a Notice of No Constitutional Question for a non-constitutional motion was appealed. 6. On Dec 13 2013, a second motion to Quash with a Notice of Constitutional Question informing provincial Attorneys General that NO constitutional issue was being raised was dismissed by Justice Sophie Bourque J.C.S. for No jurisdiction due to amendments to indictments being reserved to the trial judge alone. This precedent was appealed. 7. On Feb 7 2014, Judge Bellehumeur slated the Motion to Amend/Quash to be heard before the Aug 18 2014 Preliminary Inquiry. 8. On May 22 2014, Judge Sirois followed the new precedents in dismissing the Motion to Amend/Quash ruling he had no jurisdiction because: 1) the Accused had failed to file a Notice of No Constitutional Question, and 2) only a Trial Judge could hear a S.601 Motion to Amend. 9. On Jun 9 2014, Quebec Court of Appeal Justices Hesler, Leger and Savard (700-36-000999-135) dismissed the appeals against the precedents ruling they lacked any jurisdiction since the process was legitimately going on below. PART II - ISSUES 10. Should the precedents stand that a S.601 Motion to Amend/Quash: A) needs a Notice of No Constitutional Question; B) needs to be heard by the Trial Judge Only. PART III - ARGUMENT A) NOTICE OF NO CONSTITUTIONAL QUESTION 11. Challenging the constitutional validity of the possession and production prohibitions was successful in R. v. Parker which took effect after July 31 2001 and the same constitutional relief did not have to be applied for again. 12. Ontario Provincial Court Judge Phillips in R. v. J.P. (2003) explained why S.601 Motions to Quash had no constitutional issue being raised. Its not trying to strike down a bad law, its trying to establish a bad law was already struck down in Parker [2001] and Krieger [2003] as unknown to law, not unconstitutional while including: A Notice of Constitutional Question is not required for an Application pursuant to S.601 of the Criminal Code to quash the charges. 13. In a S.601 Application to Quash the charges, Justice Rogin R. v. J.P. (2003), noted: [5] The Crown appeals to this court from this ruling. The Crown complains that notwithstanding that J.P.s original application was not a Canadian Charter of Rights and Freedoms application... the factum specifically states that J.P. did not challenge the constitutionality of the regulations which Phillips J. found not to contain an offence. B) TRIAL JUDGE ONLY WITH LEAVE 14. Section 601. of the Criminal Code says: Amending defective indictment or count 601. (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea... Question of law (6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law. Definition of court (10) In this section, court means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on indictment. 15. S.601 says an objection to amend a defective indictment must be made with leave of the Trial Judge upon whom jurisdiction is conferred once the Accused has pleaded before him but may made without leave of the court before the accused has pleaded before his Trial Judge! An Application to Amend/Quash without leave must be heard before the Accused has entered a plea; it is a Question of Law for any judge of the court and not a Question of Fact for the Trial Judge upon whom is conferred jurisdiction only after the Accused has pleaded. Since no Trial Judge may yet be named, it is clear that any objection to the indictment without leave of the Court must necessarily be made to any judge and not only the Trial Judge from whom leave must be sought if sought after plea. 16. In R. v. John Turmel [1994] the motion to Quash was heard by Ontario Provincial Court Judge Nadelle within a week, and then the trial was held on the indictment a year later. 17. In R. v. James Turner [2007], the motion in Ottawa to Quash was dismissed by Ontario Superior Court Justice Ray in 2008 and the trial is now about to commence later in 2014. 18. If my motion to declare the CDSA prohibition of no force and effect is dismissed, I am guilty of violating the too many plants charge and have no defence. I can plead guilty before any expensive Preliminary Inquiry. 19. Applicant submits that all the time spent on examining evidence in a Preliminary Inquiry would be wasted if I lose the Motion to Quash and end up pleading guilty. PART IV - ORDER SOUGHT Applicant seeks an Order overturning the June 9 decision of the Quebec Court of Appeal and striking down the precedent rulings of the Quebec Superior Court that a S.601 Motion to Amend/Quash: A) needs a Notice of No Constitutional Question; B) needs to be heard with leave of the Trial Judge Only. Now, Rays still facing a Preliminary Inquiry on Aug 18 so I filed a motion asking for a stay below: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE QUEBEC COURT OF APPEAL) BETWEEN: Raymond Turmel Applicant Appellant in appeal and Her Majesty The Queen Respondent NOTICE OF MOTION RAYMOND TURMEL, APPLICANT TAKE NOTICE that Applicant seems an Order on Short Notice for a stay of Applicants Preliminary Inquiry on Aug 18 2014 in Quebec Provincial Court. THE GROUNDS OF MOTION are that since Applicant was growing too many plants, if the Motion to declare the prohibitions remain of no force and effect fails, he may as well plead; so an expensive Preliminary Inquiry into the evidence before any guilty plea is made is putting the cart before the horse and the Preliminary Inquiry should be stayed pending the outcome of the Motion to Amend/Quash. JCT: So its a shot. Hes in objecting to the two precedents used to deny him his Quash Motion while moving for a stay pending that decision of the action below. Finally, he refiled another Motion to Quash for Aug 18 in case the judge can be persuaded to hear it first... CANADA PROVINCE OF QUEBEC DISTRICT DE TERREBONNE LOCALITE ST-JEROME COURT OF QUEBEC NO: 700-01-118202-137 (Criminal Chamber) CASE: 174-121109-004 Between Raymond Turmel Applicant -and- Attorney General for Quebec Respondent APPLICATION TO AMEND/QUASH INDICTMENT (Pursuant to Section 601 of the CDSA) TO ONE OF THE HONOURABLE JUDGES OF THE COURT OF QUEBEC (CRIMINAL CHAMBER) SITTING IN AND FOR THE DISTRICT OF TERREBONNE LOCALITE ST-JEROME, the Applicant states: 1. Applicant seeks leave, if necessary, to make this non- constitutional application under S.601 of the Criminal Code to Amend/Quash the Indictment in the Information upon the following grounds: NO CONSTITUTIONAL QUESTION 2. Ontario Superior Court Justice Rogin in R. v. J.P. (2003) noted that there is no Constitutional Question raised in a S.601 Motion to Quash or Amend: [5] The Crown appeals to this court from this ruling. The Crown complains that notwithstanding that J.P.s original application was not a Canadian Charter of Rights and Freedoms application... the factum specifically states that J.P. did not challenge the constitutionality of the regulations which Phillips J. found not to contain an offence. 3. J.P. did not challenge the constitutional validity of the possession and production prohibitions in his Motion to Amend/Quash which had already been successful challenged in R. v. Parker which took effect after July 31 2001. Like J.P., Applicant herein is not challenging the already invalid prohibitions, Applicant is seeking to have them declared no longer known to law since they were struck down in Parker on Aug 1 2001. JUDGE OF FIRST INSTANCE TO AMEND INDICTMENT 4. S.601 states: AMENDING DEFECTIVE INDICTMENT OR COUNT (1) An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect. QUESTION OF LAW (6) The question whether an order to amend an indictment or a count thereof should be granted or refused is a question of law. DEFINITION OF COURT (10) In this section, court means a court, judge, justice or provincial court judge acting in summary conviction proceedings or in proceedings on indictment. 5. S.601 says an objection to amend a defective indictment must be made with leave of the Trial Judge upon whom jurisdiction is conferred once the Accused has pleaded before him but may made without leave of the court before the accused has pleaded before his Trial Judge! 6. In R. v. John Turmel [1994] the motion to Quash was heard by Ontario Provincial Court Judge Nadelle within a week, and then the trial was held on the indictment a year later. 7. In R. v. James Turner [2007], the motion in Ottawa to Quash was dismissed by Ontario Superior Court Justice Ray in 2008 and the trial is now about to commence later in 2014. Since no Trial Judge may yet be named, it is clear that any objection to the indictment without leave of the Court must necessarily be made to any judge and not only the Trial Judge from whom leave must be sought if sought after plea. Application to Quash must be heard before the Accused has entered a plea; that it is a Question of Law for any judge of the court and not a Question of Fact for the Trial Judge upon whom is conferred jurisdiction only once the Accused has entered a plea before the court. How can only the Trial Judge have jurisdiction over a motion that is to be heard before the accused has entered a plea when no such jurisdiction has yet to be conferred? 9. If my motion to declare the CDSA prohibition of no force and effect is dismissed, I am guilty of violating the valid charge of too many plants and have no defence. I should plead guilty. And all that time would be wasted in examining evidence at a Preliminary Inquiry that would be be used. Thats why in Ontario, hearing evidence before fixing the indictment is putting the cart-before-the-horse. OVERVIEW... JCT: Then it goes off into the usual POLCOA (Parliament Only Legislates, Courts Only Abrogate) and BENO (Bad Exemption means No Offence) arguments on why the prohibitions are still dead since Parker and Krieger killed them. So I wonder if theyre going to let this screw-up continue? Note that Judge Bellehumeur had slated the Quash to be heard before the Prelim! Then the next judge said it had to heard after. So why was it booked before? Anyway, like Ray argued, he can do his best at the Prelim without a lawyer, then lose his Quash and plead guilty! Har har har har har har. Wouldnt that teach them to hear evidence before the Accused has pleaded! Supreme Court Judge could fix it, but it would be rare. So its probably going to go on screwed-up. But at least we got the beef about the precedents in at the top. Wonder how the Crowns going to respond in 30 days?
Posted on: Sat, 09 Aug 2014 01:00:37 +0000
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