From: johnturmel@gmail.com   
      
   JCT: In yesterday's report on the Mozajko appeal hearing, I   
   mentioned how Igor pointed the judges to the paragraphs on   
   Issue C, failure to file a Notice of Constitutional   
   Question. And that Bricker had said he had dealt with it.   
      
   Sure enough, he had, to such little extent I didn't notice.   
   So here it is from the Mozajko Crown Cross-Appeal   
   Memorandum:   
      
   CR: PART IV - SUBMISSIONS   
      
   A. A NOTICE OF CONSTITUTIONAL QUESTION IS NOT REQUIRED AT   
   THIS STAGE   
      
   8. The plaintiff suggests the Motions Judge should have   
   dismissed Canada's motion to strike because Canada did not   
   file a notice of constitutional question.   
      
   JCT: No, Justices Pelletier and Gauthier suggested it. From   
   Igor's Memorandum:   
       7) NO NOTICE OF CONSTITUTIONAL QUESTION?   
       48. In the recent appeal of Harris v. HMTQ (A-175-19) of   
       a motion to strike a S.52 claim of constitutional   
       violation, both Justices Pelletier and Gauthier noted   
       that there had been no Notice of Constitutional Question   
       for the motion to strike a constitutional claim. Justice   
       Gauthier said "the constitutionality must be argued to   
       some extent if the Crown says the claim of   
       unconstitutionality is frivolous."   
       49. The Crown arguing that the facts do not show a   
       constitutional violation is as constitutional an   
       argument as me arguing that the facts do show a   
       constitutional violation. In moving to strike a S.52   
       claim of constitutional violation, Respondent submits   
       that a Notice of Constitutional Question should have   
       been given herein as well.   
      
   JCT: So the plaintiff does not suggest the document was   
   missing, those judges did. And he was there. Did he forget   
   who brought it up, we hadn't even noticed until the judges   
   did. We certainly did not fail to remember, wonder how   
   Bricker could forget?   
      
   CR: However, Canada's motion did not seek a finding on the   
   ultimate constitutionality of the ACMPR, but only a finding   
   that the facts pleaded in this case are incapable of   
   establishing a Charter violation.   
      
   JCT: And Justice Gauthier had said:   
       "the constitutionality must be argued to some extent if   
       the Crown says the claim of unconstitutionality is   
       frivolous."   
      
   CR: A notice of constitutional question is not required in   
   these circumstances,   
      
   JCT: After the Judge says "must," the lawyer just repeats   
   "not required."   
      
   At the original hearing, Bricker had suggested using the   
   break to go find case law that it was not required, they   
   said: Don't bother unless we ask. But in all that time, he   
   hasn't found any case law that says the judge is wrong that   
   he "must" file it and he is not required to. Do you think he   
   would have ducked the issue if he had found case law in   
   support of himself and not the judge? He didn't, did he. He   
   just repeated he didn't have to even if she said he must.   
      
   CR: although if this Court does not strike the claim at this   
   interlocutory stage, the plaintiff will be required to serve   
   a notice prior to trial.   
      
   JCT: Who cares about the Notice we have to file later? We're   
   talking about the Notice they were supposed to file earlier.   
   What a lame leg to stand on. Since Plaintiff have to file   
   the Notice to argue the trial, and the Defendant doesn't   
   have to file the notice to argue the motion to nix the   
   trial?   
      
   So Igor pointed out the Crown ducked the technicality.   
   The Crown claimed Paragraph 8 dealt with it.   
   And now these judges are stuck with the issue.   
      
   Was the judge right that the Crown "must" or the Crown right   
   that it's "not required?"   
      
   Won't it be fun if they have to start all over but we ask   
   Brown to amend out old claims to the new one I published   
   with the Harris Court's "missing facts" covered?   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)