TURMEL: Ken Surgent marijuana charges withdrawn precedent in Windsor
johnturmel
marihuana possession charge in Windsor and filed motions to
prohibit and to quash the charge on the grounds Parliament Only
Legislates, Courts Only Abrogate and the Hitzig Court of Appeal
could not resurrect the possession prohibition that had been
abrogated by the Parker Court of Appeal in 2001. POLCOA is the
only acronym I could think of for this move.
All the discussions on preparation for this defence took place at
our medpot-discuss group.
Then, on Nov 12, 2009, Ken wrote:
http://health.groups.yahoo.com/group/MedPot-discuss/message/15208
I was just emailed an offered a stay of proceedings. They are
scared.
4(1) CDSA - possession of marihuana - Trial November 25, 2009
Sir:
We will be directing the clerk to stay the above noted
proceedings against you pursuant to section 579(1) of the
Criminal Code. We will do so on the date scheduled for the trial
of this matter, or we can bring the matter forward for this
purpose on November 18 or 19, 2009. Please advise us as to which
date you would like to attend court for this purpose.
Please advise us as to your intentions regarding this
application.
Ruth P. Orton-Pert
Mousseau DeLuca McPherson Prince LLP
Barristers & Solicitors
500 - 251 Goyeau Street
Windsor, Ontario N9A 6V2
Tel: (519) 258-0615 Fax: (519) 258-6833
ror...@mousseaulaw.com
I will email them and ask them to dismiss the charge or agree not
to recommence proceedings within the one year that they can under
579(1) of the CCC. Ken
--
JCT: The next day, Nov 13, I wrote back with the Peddle ruling,
an old idea I'd noted in the http://johnturmel.com/timeline.htm
in response to a post by Noreen Evers:
Re: Stay of proceedings
> And the Crown is not to stay proceedings arbitrarily to prevent
the Court from striking down unconstitutional legislation. See
Smith, Edward Dewey at Canlii - I'm not sure of the paras. Noreen
Jct: They've been ducking POLCOA by staying or withdrawing
charges for a long time. Finally, the only real good argument Ken
could put up was from the timeline:
R. v. Peddle, [2003] O.J. No. 2096 (Ont. Prov. Ct.).
May 30 2003
JUDGE KENKEL SAYS QUASH UNKNOWN CHARGES, STAY UNFAIR
"Where an information on its face does not disclose an
offence known to law, can the Crown pre-empt a motion to
quash the information by staying the charge? In R. v. J.P.,
a decision binding on this court, Mr. Justice Rogin held
that simple possession of marihuana is no longer "an offence
known to law".
The accused/applicant has applied to this court to quash the
information alleging simple possession of marihuana. At the
same time, the Federal Crown has asked that the charge be
stayed... The Federal Crown submits that their motion to
stay the proceedings deprives this court of jurisdiction to
hear the motion to quash...
Proceedings stayed under s.579 may be recommenced without
laying a new information within one year. Thus, the accused
person remains in jeopardy of prosecution on the original
information until that period expires. The discretion of the
Crown under s.579 to intervene by directing a stay of
proceedings should not normally be interfered with by the
court. However, where the charge before the court is itself
a nullity, then in my view there is nothing to stay. It
would be wrong to keep a citizen in jeopardy of prosecution
for a period of one year on an information that does not
disclose an offence.
Conclusion: The information before the court will be quashed
as not disclosing an offence as required by s.581(1) c.c.
Hon. Justice Joseph F. Kenkel
Jct: So they should not be allowed to stay where the challenge is
the validity of the law, as herein with POLCOA. They have the
power to withdraw, always, but should not have the power to hold
a nullity over Ken's head for another year. If Ken's going to
argue anything to win, it's return of the equipment and money,
and he can try a section 24 on POLCOA if he wants, and the
withdrawal of the charge now, forever, no jeopardy left.
--
JCT: On Mon Nov 23, 2009, the Crown Attorney wrote:
Mr. Surgent:
I will withdraw the matter on November 25, 2009 rather than
directing a stay. As I indicated, the items seized (but for
marihuana and seeds) will be returned to you. You will not be
entitled to any compensation for the marihuana / seeds.
---
JCT: I wrote back:
Jct: The Surgent precedent is really appreciated. Remember,
Peddle just said that the stay was wrong but granted the unknown
to law in 2003. Peddle just told them how to do it right. You're
the precedent that made them to it right. Good for you. You
stayed focused and won everything you could. So, as usual, the
charge is withdrawn before the POLCOA motion can be heard and you
get your stuff back right away instead of a year. The first ever
withdrawal, the Surgent Precedent.
--
JCT: Then I had to correct myself:
Re: Withdraw!
> Jct: The Surgent precedent is really appreciated.
> The first ever withdrawal, the Surgent Precedent.
Jct: Actually, Derek Francisco was the first withdrawal of
charges. But he had two cards in his hand, his POLCOA card and
his new exemption card when the Crown gave up. You only had the
POLCOA card, an even more important precedent for people without
exemption cards. So it's the Francisco withdrawal precedent for
sick people and the Surgent withdrawal precedent for non-sick
people.
--
JCT: Considering the group usually has 15 or 20 post a day, I
could write:
Turmel: Waiting with bated breath for Surgent Precedent
Jct: It's true. Not one statement from anyone all day, since my
last post 20 hours ago. That's what I'd call waiting with bated
breath for the Surgent Precedent.
---
JCT: The, later that morning came the good news from Ken:
RE: [MedPot-discuss] Turmel: Waiting with bated breath for
Surgent Precedent
It's now official. I am free and I have a letter from the Crown
to pick up my stuff. Charge of possession of marijuana is
withdrawn. 2 min. and I was out of there. The Surgent Precedent
The Judge looked at me and said "That couldn't be any better for
you! Your free to go!" Ken CCLDR http://www.ccldr.net/
JCT: I wonder if the judge was Phillips or Rogin?
Regardless, Derek Francisco won withdrawal with two cards, POLCOA
and Exemption. Ken Surgent wasn't sick and won with only POLCOA.
Let that sink in. Ken's the first non-sick person to win a
withdrawal with our newest POLCOA kit. I think it's the
inclusion of the Sfetkopoulos decision that helped. What a
precedent.
Funniest of all, Terry and I had a 3-way conversation with Crown
Attorney, James Gorham, this morning. (If you don't have 3-way,
you're not as powerful as you can be.) He wants Terry's claim
under the CDSA appealed to Civil Court and I told him we'd like
to continue this Criminal Code appeal in Criminal Court. But
other than that, he said he thought we we abusing the court
system since the Court of Appeal had said POLCOA was wrong. I
pointed out I never got my 5-judge panel with jurisdiction so the
issue is not resolved. And besides, it got Ken Surgent off in
Windsor just yesterday morning! I laughed that though the higher
levels may not treat POLCOA seriously, the lower levels seem to.
He was unaware of our recent Ken's recent use of POLCOA to smash
his charges.
Another post.
Again, the import of the 1-Ace Surgent win compared to the 2-Ace
Francisco win to the non-sick is huge. And there's even the
chance it may make the news. Imagine that, an acquittal making
the news.