From: johnturmel@yahoo.com   
      
   JCT: On Nov 10 2015, Ontario Court of Appeal Justice    
   Doherty dismissed our motions for extensions of time to file    
   Smith BENO appeals. Because Bela Beke and I were there, we    
   got decisions. Those who were not were dismissed.    
      
   So Bela and I have filed motions within 4 days to set aside    
   his decision by a full panel of the court which can then be    
   appealed to the Supreme Court.    
      
   Court File No. M45479    
                    COURT OF APPEAL FOR ONTARIO    
   Between:   
                             John Turmel    
                                               Applicant-Accused    
                                and    
                       Her Majesty the Queen   
                                            Respondent/Plaintiff   
      
                         NOTICE OF MOTION    
                    (Pursuant to Rule 61.16(6)    
      
   TAKE NOTICE that on a date fixed by the Registrar in the   
   courthouse at Osgoode Hall, 130 Queen St. W., in Toronto,   
   Applicant will make a motion for an Order:    
      
   A) setting aside the Nov 10 decision of Ontario Court of    
   Appeal Justice Doherty and granting an extension of time to    
   file a new Notice of Appeal, or, in the alternative;     
      
   B) converting the application to extend time to file a new    
   appeal to an application to extend time to reopen a decided    
   appeal;    
      
   C) expediting the hearing of the new or re-opened appeal;   
      
   D) abridging any time for service or amending any error or    
   omission as to form, color, font, margins, content which the    
   Honourable Justice may deem just.   
      
   THE GROUNDS ARE that the Sarson ruling does not apply.   
      
   CERTIFICATE OF ESTIMATED TIME FOR ARGUMENT:     
   Applicant's argument should take less than 30 minutes.    
   Dated at Toronto on Mon Nov 16 2015.    
   For the Applicant    
   John C. Turmel, B.Eng.,    
                         APPLICANT'S FACTUM    
      
   PART I - OVERVIEW    
      
   1. Applicant was convicted on a marijuana charge in 2006,    
   unsuccessfully appealed and sought leave to appeal to the    
   Supreme Court.    
      
   2. In June 2015, the Supreme Court struck down the    
   prohibition on any application but dried marijuana as a    
   violation of the Charter.     
      
   3. Just as the Hitzig "Bad Exemption" [2003] by regulated    
   Mis-Supply meant there was "No Offence" in force since Aug 1    
   2001 absent an acceptable medical exemption when J.P. was    
   charged; so too, the Smith Worse "Bad Exemption" [2015] by    
   regulated Mis-Use means there was "No Offence" in force since    
   Aug 1 2001 absent an acceptable medical exemption when the    
   Accused herein was charged; this Court is bound by the    
   Ontario Court of Appeal's J.P. precedent to declare that NO    
   OFFENCE was in force while the Smith BAD EXEMPTION existed    
   since Aug. 1 2001, the same as Hitzig, on Terry Parker Day.    
      
   4. Given there was no valid offence when the Accused was    
   charged, Applicant sought an extension of time to appeal the    
   conviction on the new grounds offered in Smith.    
      
   5. On Nov 10, the decision of Court of Appeal Justice Doherty    
   dismissed the application.    
      
   PART II - FACTS    
      
   6. There are no facts under dispute as this is a question of    
   pure law and the Endorsement lays out the relevant data:     
       ENDORSEMENT   
       [1]  The applicant seeks an extension of time to further    
       appeal his conviction. That conviction was already the    
       subject of an appeal to this court (R. v. Turmel, 207    
       ONCA 133). That appeal was dismissed on its merits and    
       leave to appeal to the Supreme Court of Canada was    
       refused.   
       [2] Mr. Turmel submits that he is entitled to bring a    
       fresh appeal based on changes in the law effected by case    
       law decided after his appeal was considered and dismissed    
       (R. v. Smith, 2015 SCC). He argues that Smith changes the    
       legal landscape and that on the present state of the law    
       he would be entitled to an acquittal.   
       [3] A party is not entitled to appeal the same conviction    
       more than once. The order dismissing the appeal renders    
       any new appeal res judicata. Counsel may, in limited    
       circumstances, move to reopen a decided appeal:  R. v.    
       Hummel (2003), 175 C.C.C. (3d) 1.    
       Assuming that power exists when the appeal has been    
       dismissed on the merits, it cannot be exercised on the    
       basis of case law decided when the appeal was no longer    
       "in the judicial system": see R. v. Sarson (1996), 107    
       C.C.C. (3d) 20 at 30-31 (SCC).   
       [4]  Finality concerns trump the applicant's claim to re-   
       litigate his appeal based on developments in the case law    
       that postdate the dismissal of his appeal and the    
       refusing of leave to appeal.   
       [5]  The application is dismissed.   
      
   7. [1] Applicant's 2007 Appeal was not dismissed on its    
   merits but for lack of jurisdiction because the Chief Justice    
   had refused the requested 5-judge panel necessary to overrule    
   the Hitzig and J.P. decisions.    
      
   8. [2] Applicant cedes the past conviction shouldn't be    
   changed due to the present state of the law; but argues only    
   the retrospective, not present, state of the law when    
   charged.    
      
   9. [3] Parties should be permitted to appeal the same    
   conviction only in the case where no other charges were    
   available.    
      
   10. [4] The Supreme Court wrote in Sarson:    
       [14] The Appellant's continued detention pursuant to a    
       conviction for second degree murder does not amount to a    
       breach of fundamental justice. Although the appellant's    
       conviction was entered under a constitutionally infirm    
       provision of the Code, the circumstances leading to his    
       conviction under that section are important in assessing    
       the propriety of the appellant's conviction and ultimate    
       sentence.    
       [15].. the appellant's involvement in Crispin's death    
       could easily have supported a conviction under several    
       Criminal Code provisions aside from s.213(d).    
      
   11. If the circumstances leading to Sarson's conviction under    
   murder statutes is important in assessing the propriety of    
   the conviction and sentence, the circumstances leading to    
   Applicant's conviction under prohibition statute are not.    
      
   12. Sarson was convicted of the God-given prohibition on    
   murder with many other statutes that had been been violated    
   under which he could have been charged. Applicant was    
   convicted of the Man-given prohibition on marijuana with no    
   other statutes that had been violated under which he could    
   have been charged. That is a big difference.    
      
   13. Finality is an unjust argument upon which to sustain    
   leaving Applicant with a criminal record from a conviction    
      
   [continued in next message]   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)