From: johnturmel@yahoo.com   
      
   TURMEL: Judge Haggerty reserves on Krzyz' Allard-Smith BENO Quash   
      
   JCT: Today I was in Jasper Alberta with Voytek Krzyz for his   
   Smith BENO  Quash but we added the Allard decision to the   
   mix. It went as expected from a good judge. Judge Haggerty   
   was an older guy, nearing his 60s, so he might be ready to   
   end his career with a bang. Regardless, he ran a smooth   
   hearing with a Polish immigrant self-defender. Kathryn   
   Laurie for the Crown.   
      
   I almost made a tremendous error. Voytek told me that he had   
   been pulled over for tail-gating a truck in the middle of   
   the night on an empty highway. How the cop could judge   
   whatever distance it was I'd like to know. Plus, he also   
   said that the passenger seat was reclined too far back!!   
   Didn't know there was a law about a passenger not allowed to   
   recline, did you? Maybe he was bluffing because after   
   finding the pot, he didn't lay any of his original search   
   charges. Guess he should have or maybe they weren't true and   
   he thinks he doesn't need them any more. Bet not.   
      
   So I was going to try to intimidate the Crown and get her to   
   withdraw his charges. Not only could she avoid being   
   embarrassed at having raised the Constitutional Notice and   
   Trial Judge objections when they had been pre-argued in the   
   motion but now she could pin the blame for withdrawal not on   
   her avoiding an embarrassment but on the cop who screwed up   
   the search.   
      
   Then it dawned on me that could always still be used later   
   and after Crown's recent delaying, stalling, and withdrawing   
   charges to avoid letting Smith BENO be heard, I had to be   
   try to intimidate here into ducking. So I told Voytek not to   
   say a word about anything, not to let her know we were   
   submitting Allard, we'd spring it on her right in court so   
   she couldn't duck out.   
      
   A reporter from the Jasper Fitzhugh showed up, said he'd   
   heard about an important case on the net. Stayed for the   
   whole thing so watch that paper.   
      
   So when the judge asked Voytek to speak, he simply said he   
   had an additional submission dealing with the new ruling of   
   two days ago striking down the Bad Exemption completely. No   
   problem, the judge accepted it right away. Then he said he   
   had a few questions and Voytek said he doubted he'd be able   
   to help much but that his legal advisor was here, me, who   
   could explain best.   
      
   Judge Haggerty said that he knew many judges who would never   
   allow anyone else but the Accused to speak but since this   
   Quash was a rare and interesting motion, he was most   
   interested in getting as much info on it as he could and   
   okayed my speaking for Voytek.   
      
   I basically relayed the info linking Parker-Hitzig-J.P. and   
   how we'd started with the new Parker-Smith-Krzyz move but   
   were now adding the Parker-Allard-Krzyz to the mix. The   
   great difference was that the Crown kept arguing that the   
   Supreme Court in Smith only struck down  one section, not   
   the whole thing. Even though that doesn't matter, the Hitzig   
   declaration only struck down a few flaws but the fact all   
   the wheels on the machine were flat meant it didn't work no   
   matter how many other sections of the car were left as is.   
   Get it?   
      
   But Allard is an improvement on that. The Crown can no   
   longer argue that they left the remainder intact, as if it   
   mattered, but the Allard decision left nothing standing. It   
   took about 10 minutes to make the case. The judge had no   
   more questions.   
      
   The Crown then responded that it took a constitutional notice   
   and had to be heard by the Trial judge. The same two points   
   I'd already knocked down, she had to repeat, because she had   
   nothing to say on the merits of the argument!!!   
      
   I could have made fun of her that it was rebutted in   
   Paragraph 1 of the motion (even rolled my eyes) but I just   
   pointed out that Justice Riopelle in Timmins and Judge Tax   
   in Halifax didn't need a constitutional notice.   
      
   And as for the Trial judge needing to hear the application,   
   I pointed out the section listed all the different courts   
   with jurisdiction to amend an indictment: "If you can amend   
   a typo, you can amend a defective indictment too, same   
   section."   
      
   That's when Judge Haggerty stated at least twice: "Yes, I   
   have the power." So, now everyone can quote Judge Haggerty   
   who said he had the power and point out that Riopelle and   
   Tax aren't trial judges either.   
      
   Anyway, Judge Haggerty was so interested that he took a few   
   moments to explain where the right to move to quash an   
   indictment came from. Back around Magna Carta days with King   
   Henry II, the courts run by the Barons were abolished and   
   replaced with travelling courts to now hear cases throughout   
   the land. And they needed a code for everyone and that's   
   where the original cherished right to challenge your   
   indictment came from. That was a neat lesson. Can't hurt for   
   the judge to consider this a fun case too. It was actually   
   one of the most pleasant hearings I've ever attended. What a   
   charmer, he put Voytek and his wife completely at ease.   
      
   He said it was obvious he was going to have to take some   
   time to write up the decision and would reserve 8 weeks to   
   April 28 for the decision. He offered to let Duty Counsel be   
   present to accept the decision and pass it on to Voytek but   
   Voytek said he'd like to come. I won't.   
      
   The Crown sort of apologized to the judge for having him   
   called in for a special hearing where they opened the court   
   on a day it's usually closed. She had expected it take hours   
   of argument and was stunned that it was over in under half   
   an hour.   
      
   Anyway, she must have been happy I wasn't brutal but she was   
   rather nice and came by to shake my hand when it was over. I   
   told her she could always hope it wins in another province   
   first.   
      
   So BENO Quash reserved decisions in Ontario, Nova Scotia and   
   hopefully a fourth province of Quebec on Mar 7 next week   
   with Ray Turmel and a fifth province Saskatchewan on April 1   
   with Curtis Sears.   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)