From: johnturmel@yahoo.com   
      
   JCT: Gary Pallister got Jon Nesbitt turned on to the new   
   Smith BENO Quash kits and he was the first to file in   
   Provincial Court after James Turner last Wednesday in   
   Superior. James is coming up Monday 10am in Ottawa. Cheryle   
   Hawkins came in support and told me later that the Crowns   
   knew who I was.   
      
   They must have enjoyed trashing my work as completely   
   improper but won't enjoy so much when I respond how it's   
   been accepted by a couple of dozen other courts as properly   
   done in the past. Last month in Newfoundland and last week   
   in Ottawa! Har har har. I'm actually quite an expert on   
   Quash Motions by now. So they got their insults in and I'll   
   mine in later.   
      
   The bad news is that the trial coordinator scheduled the   
   motion to a Provincial Court Judge in Assignment Court   
   before a J.P. and only in late afternoon, after all the   
   lawyers had gone first, did the Crown call Jon and mention   
   it had to be before another judge. And got him sent there.   
   But it let him call the motion an improperly and totally   
   unacceptable request.   
      
   I wonder if they wasted my day on purpose but the next   
   lawyer spoke from the same script.   
      
   It started with Jon explaining how the Hitzig Bad Exemption   
   meant No Offence for J.P., so why shouldn't Smith Worse Bad   
   Exemption not mean No Offence for him?   
      
   The judge being caught by surprise, had no clue what JP was   
   and asked the Crown, Johnston, who promptly misinformed him.   
   He told the judge it raised a constitutional Question, not   
   understanding Parker and Hitzig had done that for J.P. as   
   Parker and Smith have now done that for him. But right on   
   Page 1 of Notice, it says "This Non-Constitutional S.601   
   Motion to Quash is..." but I had dropped the quote of   
   Superior Court Justice Rogin explaining how no Charter issue   
   was being raised. Aarrggg. That let the Crown trick the   
   judge. I'm going to have to add the Rogin Quote back so now   
   more judges can erred on that one.   
      
   Now the judge shouldn't have been so easily tricked since   
   Jon had said that if JP could quash his charge without a   
   Charter Notice, why can't he. The judge asked what J.P.   
   meant and the Crown told him it had been dismissed by the   
   Court of Appeal. (Note the partial truth is used to mislead   
   the judge. Part of the J.P. decision had been rejected, WHY   
   it was a bad exemption, but not the part where J.P.'s charge   
   remained quashed because the Hitzig Bad Exemption replaced   
   the Bad Exemption J.P. been wrong about!) But Crown Johnston   
   only had to omit the part we are citing and stress the part   
   that was dismissed as if it applied to the whole appeal and   
   got to deke the young judge out of his shoes into making a   
   wrong decision. He told Jon to come back when he'd served   
   the Constitutional Question properly when there is none.   
      
   Johnston even said he didn't know what Section 601 was all   
   about before reassuring the judge it needed a constitutional   
   notice. And the Judge bought it rather than check. Put it   
   off to Oct 9 giving Jon until Sep 8 to file his notices with   
   the provincial Attorneys General. And like Voytek in   
   Newfoundland, Jon's going to refuse and flash the Rogin card   
   right in the Crown's face at the next hearing. Har har har   
   har har har.   
      
   So here is the new Notice of Motion with the Rogin and Trial   
   Judge and Parker-Hitzig v. Parker-Smith comparisons:   
      
   TAKE NOTICE THAT on _____________, 2015 a Non-Constitutional   
   Application pursuant to S.601 that raises no Constitutional   
   Question will be heard by any judge of the court before plea   
   and with leave of the judge after plea, that raises no   
   Constitutional Question.   
      
   In R. v. J.P. (2003), Justice Rogin noted that for that   
   S.601 Quash Motion:   
       "[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."   
      
   The Parker Charter Challenge ruled there was no prohibition   
   absent a viable medical exemption. The Hitzig Charter   
   Challenge ruled defects made the MMAR an unacceptably Bad   
   Exemption. The J.P. non-Charter S.601 Quash Challenge ruled   
   that the Hitzig Bad Exemption gave effect to the Parker   
   invalidation of the Offence: Bad Exemption No Offence. The   
   J.P   
   motion to quash was not a constitutional challenge all over   
   again and neither is the Motion of the Accused herein.   
      
   Any judge may amend a defective indictment under S.601,   
   whether it be a bad address (amended) or a bad charge   
   (quashed). 1. 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...   
       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.   
      
   S.601 says an objection to amend a defective indictment must   
   be made pre-plea to "a court" of first instance with power   
   to amend the defective indictment so later judges only deal   
   with valid counts. The indictment must be amended before   
   being sent to the Trial Court for plea and certainly before   
   any evidence presented at a Preliminary Inquiry. Specific   
   jurisdiction is only conferred upon one judge of the court   
   once the Accused has pleaded before him. Until then, any   
   other judge of the court may amend the indictment. Though it   
   would be procedurally convenient to have the Trial Judge   
   also rule on the S.601 amendments to the indictment, a Trial   
   Judge is not even appointed until the Preliminary Inquiry   
   judge has sent it further. The Criminal Code mandates   
   amending the indictment by "a court" of first instance   
   before any time is wasted on other procedures. It makes no   
   sense to wait for the Trial Judge to amend the defective   
   indictment only after a Preliminary Inquiry has wasted its   
   time on the defects in that indictment that are struck.   
      
   THE APPLICATION IS FOR AN ORDER that   
   A) absent a viable medical exemption, the prohibitions on   
   marijuana in the CDSA are of no force and effect; and   
   B) the Accused's CDSA charges relating to marijuana be   
   quashed as of no force and effect;   
      
   [continued in next message]   
      
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