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JCT: The bad news is that Superior Court Judge W. Festeryga
dismissed the Nielsens appeal of the Edward refusal to quash
their charges.
The good news is that they weren't appealing the Edward
decision. Har har har har. It was for an Order of
Prohibition. The judge didn't even read the motion. He got
it wrong, kept it wrong all the way and could not be
corrected.
After Judge Edward had dismissed the Nielsens' motion to
quash their charges as unknown to law, the lower court
decision can't be appealed until after the trial is heard
with the general appeal. If you want to continue a pre-plea
objection, you then have to go to the Superior Court for the
extraordinary remedy called an Order of Prohibition. It
stops the improper prosecution below. When Judge Edward
ruled that he was bound by the Hitzig decision to continue
prosecuting the charges under the repealed law, the only way
to avoid that costly affair is to now move to prohibit Judge
Edward's order to continue this illegitimate prosecution.
So here they are in Superior Court for an Order to prohibit
the ordeal Judge Edward was putting them through. The old
Brantford Courthouse has one of the most beautiful old
court-rooms I've ever seen. Big beautiful windows, subdued
non-fluorescent lighting. The clerk said it had been
designated a heritage building. We had lots of time to study
it because Greg Smith was an hour late and showed up chewing
a cud of gum like a cow after we'd all been warned against
it.
Of course, he had no materials. But then he didn't need any.
The judge hadn't read anything either. The judge asked what
was going on. And here, we misplayed but we learned a lot.
You would think that with over a month to look at the
material, we could have expected better.
When you have a judge who says he has read the motion, then
you can continue on to a summary presentation. Doug and
Laurie were ready for a judge who had read the motion and I
hadn't prepared them for how to deal with a judge who was
completely ignorant of what was going on.
Of course, it's a lot easier for a Crown to trick a judge
who hasn't read anything and who then insists on having the
Crown explain Doug's case for him because Doug wasn't a
lawyer who could put it in the legalese to compensate for
the judge's presumed weakness in common English.
So I'll admit I had not prepared Doug and Laurie for a judge
who wouldn't know what was going. So here's a judge who
hadn't even cracked open the material and now we're going to
have to explain the tape recorder law to which is unfamiliar
to the average judge who has never experienced such a demand
before. Turmel's Abolitionist Team of guerrilla lawyers are
the only people who ever seek the best info and use S.136 to
tape their hearings. When they have never heard of it
before, it helps for us to read the whole section to them.
"Ontario Courts of Justice Act
S.136 Nothing prohibits a party acting in person from
unobtrusively making an audio recording of the court hearing
for the sole purpose of supplementing or replacing
handwritten notes in the manner that has been approved by
the judge."
Keep in mind that 20 years ago, you didn't need the judge to
approve the manner. I just had the right to tape for my own
notes. The qualifier was added later but that only gives the
judge say over the manner of taping, not the taping itself.
No judge may prohibit taping, only an offensive manner of
taping. For instance, I could understand a judge being not
too happy about us trying hang a boom mike in his face or
pin a microphone on his robe. Of the dozen or so appearances
at the Court of Appeal for Ontario leading up to the Parker-
Hitzig-Turmel appeals, I got to tape them all except for
once,and it was a particularly interesting day. Sad the old
judge didn't realize he could have been taped for posterity
if he had kept up on the rules.
When Judge Edward refused the Nielsen request to tape, not
having been aware of the section but ruling without giving
it much thought, a habit maybe, I decided I was tired of
ignorant judges being able to plead ignorance of section 136
and by the time they learned how to do their jobs right,
it's too late. We've already been denied our right by a
judge ignorant of our right. That's why I decided to fore-
warn all judges from now on by including section 136 for
them to read right in the Notice, and then stressing that
they control manner of taping, not taping.
And of course, the first time the Notice of Motion with the
written demand for the judge's approval on the manner of
taping was used by Richard Johnson in Elliot Lake just last
week and was okayed despite Crown objection. The manner was
okayed, not the taping, because she was aware of the
difference of issues having read the Notice.
So doesn't help if the judge hasn't read the motion he is to
rule on. And bad luck, here we have a judge who didn't read
about Section 136 of the Ontario Courts of Justice Act, the
typical ill-informed judge.
Remember, there are no quality controls to make sure these
judges know the court rules since you can appeal incompetent
decisions. It's not like in sports where the referees have
to know the rules because there's no appeal process for
incompetence. Judges don't have to know their rules because
their mistakes can be corrected. And the lawyers make more
money. The courts have a built-in mechanism to allow
continued incompetence. Peter Principle ad infinitum. So no
need to test judges like referees on whether they know the
rules.
So here we have an older guy who doesn't know the rules and
who thinks civilians can't know them either. Very easy to be
duped by the Crown and he was. He told Doug that there were
transcripts available and Doug said he couldn't afford them.
Unfortunately, I hadn't armed Doug with this new advice when
facing an ignorant judge who didn't read the material. It's
to simply read the whole Notice of Motion to convey to the
judge that he had control over only the manner of taping,
not the taping itself. But Doug just said that he was asking
to tape according to Section 136 and ended without reading
the whole thing out to the guy who hadn't read it but should
have known. Alas. We learn.
Did the judge crack open the Rule book to read Section 136?
Didn't he want to see for himself what he was not familiar
with? I've seen some judges open the book, the first one 20
years ago, anyway. Not this one. Maybe he didn't want to let
the room know he didn't know about S.136. Preserving
appearances. Instead, he asked Mr. Smith to explain it. This
gave the Crown the chance to fool the old ref who didn't
know the rules and would not check them out for himself.
Crown Greg Smith pointed out that Doug had asked Judge
Edward who had prohibited taping despite the section that
says "Nothing prohibits taping." Doug quipped "Just because
it has never been done before doesn't mean that it's not
allowed."
Just like Smith used the "Hitzig court wouldn't have
resurrected the law if they couldn't have resurrected the
law so they can resurrect the law" argument before, he now
argued that "Edward wouldn't have prohibited taping if he
couldn't prohibit taping so he can prohibit taping and you
can too. He used the fact that Judge Edward had ignored
Section 136 to argue meant all judges could now follow that
precedent. So the judge who had never even read Section 136
and knew Doug couldn't afford transcripts still decided to
deny him his Section 136 right to recorded personal notes.
After all, if one judge gets away with not following the
rules, it sets a precedent for the others to get away with
it too. "Oh, I didn't think I wasn't following Rule 136
because Judge Edward hadn't followed it." Those kinds of
alibis don't work for real criminals, "oh he got away with
it so I thought I could too;" and why should they work for
judges?
So we learned. If the judge is ignorant of Section 136 of
his rule book, we have to read the whole paragraph from the
Notice stressing his say over the manner of taping, not the
taping itself.
So the ignorant old judge blew his first test. It did not
bode well. Doug and Laurie may have to order the transcript
because it's interesting reading but it won't be available
for months. Until then, this non-taped rendition will have
to suffice.
Now on to the Motion to Prohibit Prosecution. Once the judge
had alerted us that he was clueless to the case, Doug should
have simply read the whole unread Notice of Motion pointing
out the quotes from the relevant appendixes so the judge
couldn't be confused about what was under discussion.
Here, the judge hadn't read it and I hadn't told Doug to
read it all in for clueless judges and so the judge
immediately got confused and constantly interrupted Doug's
presentation. So, with no structured argument to cope with a
completely confused judge, there was nothing Doug could do.
The judge insisted that the Crown explain to help solve his
confusion. Har har har har. Let's face it, we've watched
Crown Attorneys dupe judges before with out and out lies. It
has to be easier for the Crowns to trick the referee when
the ref hasn't read what the game's about.
Of course, the Crown told him that the motion to appeal the
Edward refusal to quash was improperly before his court. Of
course, only we were aware it's for an Order of Prohibition,
not appealing Edward's quash ruling. But the old judge
didn't know and fell for the lie.
Smith continued that he couldn't make heads or tails of what
the motion was about. Of course he nit-picked that the
documentation was listed in an Appendix rather than listed
in an Affidavit which didn't deter the Elliot Lake Judge
from taking the scandal seriously.
He did a recap of how the law was "in flux" while it was
dead. How Hitzig made prohibition "known to law again." Doug
broke in that the Interpretations Act S.43 and 2(2) says
only Parliament re-enacts struck down laws.
He pointed out how Judge Edward had dismissed the motion to
quash and dismissed the motion to reconsider the new
information. Doug pointed out that Judge Edward had refused
to sign off on the motion to reconsider new information that
the Justice Doherty of the Hitzig panel had not signed the
Order that Judge Edward had said he was bound by. Doug
pointed out he was pre-plea and had the right to put in as
many motions as he wanted with new relevant info and Edward
didn't have the right to not sign off on his motion. I guess
we'll have to get a copy of the back of the un-endorsed
Record of Application to Reconsider to prove that Judge
Edward did not sign off on it and that Smith lied.
With all this discussion about the Edward rulings, is it any
wonder that the judge thought it dealt with the Edward
rulings even though Doug had mentioned it was a motion for
prohibition?
So, Smith misinformed the court that this was a completely
improper way to appeal the Edward decision and the Nielsens
had to wait until the end of their trial to pursue it.
Bringing their objection to the Edward refusal to Superior
Court made no sense to him. He said this was not an
extraordinary circumstance and that their only recourse was
wait until the trial was over.
The judge condescendingly explained to Doug that his forms
to appeal the Edward quash decision were all wrong, that he
couldn't be seeking what he was seeking here.
Doug rebutted that there were 8 other such cases that were
being heard around the country and this is the only court
that wouldn't listen.
Still, the judge simply noted that the proper procedure was
to wait until the end of the trial and he couldn't come here
to jump the queue. Once the trial was completed, then you
can appeal the Edward decision.
Where does it say we have to wait and can't jump the queue?
Extraordinary relief is available from Superior Court. But
he summarily ruled that it was not. Of course, nowhere in
the documentation was there any mention of Edward at all.
The judge didn't know because he didn't read.
What's funny about judges not knowing the rules they enforce
is that in my Hill Bust case, I had moved to quash like we
all do now in step 1. Then, instead of going to step 2 next,
the Superior Court motion to prohibit which may be appealed,
I appealed the refusal to quash which has to wait till the
end of the trial.
But though the Doherty Court of Appeal pointed out I could
not appeal the refusal to quash, they converted it into a
refusal to prohibit which they could deal with.
That's why now, after step 1 under Criminal Code S.601 to
quash is dismissed, we have step 2 to apply for the
Prohibition order which, when refused, may be appealed, as
the court instructed. Except if you run into a judge who
doesn't realize it's a prohibition order. So, I now run into
a judge who didn't even find out the Nielsens were following
the procedure that his superior Court of Appeal had told me
to do. Har har har har. Like I say, they need remedial
school for judges.
Imagine wasting the whole morning with a judge who couldn't
even focus on the first three lines of the Notice of Motion:
"TAKE NOTICE THAT on Jan 14 at 10am or so soon thereafter as
can be heard the application to a judge for
1) an Order to prohibit prosecution of all charges"
So because I'd never laid out a strategy to handle
explaining the case to ignorant judges, we got caught
playing cards for an up-on-the-case judge to a not up-on-
the-case one.
And that let the Crown get away with his lies about what was
going on and made the judge blow his second decision. Hey,
if he won't crack the paperwork and will accept "it's bunk"
as an argument, he deserves to get caught in having his
decision on the wrong motion made public. He kept
looking at the clock, I guess he was hungry.
I'm not going to have to go to the Court of Appeal arguing
he dismissed the motion "to prohibit" because he had been
duped into thinking it was a premature appeal of a motion
"to quash."
Finally was the motion to cite the Crown for contempt.
Smith said that Mr. Frankel had to be served in Toronto or
Ottawa for such a contempt charge and that's when Doug hit
him with our new strategy.
Doug pointed out that Mr. Smith should be cited for contempt
for prosecuting under an invalid law. Doug pointed out Crown
Attorney Frankel's admission that the law was invalid but it
went in one ear and came out the other virtually unimpeded
by grey matter.
And of course, with no press and hubbub to alert the judge
that there was something special going on, he was free to
treat it as a lark and act on the Crown's "no merit"
defence.
Doug pointed out his application had overwhelming evidence
but the judge didn't care. After all, he'd been told it was
a quash appeal, and even after Doug had informed him it was
a prohibition order, he had managed to quickly forget.
The judge was no help to his self-represented client. He
didn't even look into the law. He just accepted from the
Crown it was bunk and dismissed. Didn't even crack the
motion open. He should be ashamed for how he treated the
self-represented accused before him so lightly as to not
even read it.
Remember when I recently told Glenn Gray :
>GG: I can't go into a courtroom and stand before a judge to
say "I don't know".
>JCT: "I don't know which Ace to play?" It's the judge's job
to help you pick the right Ace. Not to trick you up. He has
to see that the system treats you fair when you don't have a
pro doing it for you. Don't underestimate the value of not
having a lawyer and making the judge take over certain
concerns about your rights.
JCT: It's the judge's job to see the Nielsens won the pot if
they had the Aces. Did Judge Festeryga do his job? Did he
check for Doug's aces? Har har har... sob sob sob sob, no.
From another forum:
>Qwiz
The forms are free and have all that you need to defend
yourself. You don't even need to say a word in court, as the
forms are complete and self explanatory. When you represent
yourself the Judge must by law represent you against the
prosecutor.
JCT: I guess not in Brantford. Our problem is preventing
judges from being able to plead ignorance once they admit
the don't know what's going on. We have to find a way to
stop them from playing stupid. This one walked in, asked
what was going on, got it wrong, kept it wrong and would not
be corrected. Could not be reasoned with once he'd gotten
the wrong story into his head.
Doug and Laurie Nielsen report:
>Date: Fri, 14 Jan 2005 20:55:10 -0500
>From: ddniel
>Subject:
>To: John Turmel
Unfortunately we got a stuffy old miserable, old school
judge. The crown lied & said our motion was already dealt
with by J. Edward. After that this judge wouldn't have
anything to do with it. think that was the plan anyway.
Doug did a great job with all the points he made & even
called the crown a liar at one point, thinking they might
try to rebut it & then he could prove his case.
JCT: When Doug called David Frankel Smith's "senior
partner," Smith turned and said "he's not my senior
partner." Doug argued Frankel in his own words stated that
sections 7 and 4 had been struck down. Smith's eye-brows
went up as if he didn't know. He caught the attention of the
recorder and asked for a transcript. Doug quipped "I want
one too."
Doug argued that now that Mr. Smith knows this and if he
doesn't immediately drop my charges, then he's in contempt
of this court and me for continuing this prosecution.
D&L: & when Doug told him Krieger is the highest case law,
not Hitzig & why, it was the same reaction.
JCT: As if Smith didn't know about Krieger? Could it be
possible he hasn't read it at all? Or is it an act for the
judge?
D&L: If it had been heard, we feel that we stood a really
good chance at winning, the crown just kept saying he didn't
know what it was all about, but then with a citation for
contempt on the table he probably wanted to be careful. They
just wouldn't listen to anything we had to say & sent us to
the Appeals Court.
The judge didn't seem to like that fact we were representing
ourselves, guess he would rather we spend thousands of
dollars.
JCT: Especially when Smith told him they were wasting his
time. He even asked he Court to hit Doug with court costs.
Doug replied: If anyone's wasting the court's time, it's the
Crown wasting time by prosecuting people under a repealed
law. If anybody should pay, they should.
D&L: This justice system needs a way to hold these judges
responsible for their lack of respect for upholding the law.
JCT: Remedial classes on the Rules of their job perhaps?
D&L: So guess we're off to T.O. to the Court of Appeals now,
higher up & one last chance. Sorry the news wasn't better,
but we'll keep fighting & everything we learn, we can pass
on to help the next people out. D & L
JCT: The good point was there was no decision on the merits.
The judge didn't even see the Krieger decision once he had
already decided he had no jurisdiction to deal with the
appeal of a quash decision. So we we have to appeal that he
did have jurisdiction to deal with the Prohibition Order he
didn't know we were actually dealing with. Of course, the
Crown said he didn't know what it was about either.
Look, we've recently had an honest opinion from a lawyer on
why he thinks Krieger can't save Kid Manitoba until more
people admit it. Let's presume all lawyers were trained to
think this way and are waiting for the greater consensus
before admitting Krieger applies across Canada. The point is
that it only hits that greater consensus once the media have
reported it. If the media won't report it, the lawyers won't
look. Still, was Smith raising his eye-brows as an
indication of contempt or surprise?
So that's my report. They were rail-roaded out of that
court-room so fast, it made my head spin. But as we were
leaving, all I could do was laugh stentorially "the judge
didn't even read it and the Crown tricked him."
Unless it was all an act to let the judge duck the real
issue that Justice Serre in Elliot Lake dared tackle.
Tomorrow's the Big Day with the real issue at stake.
And of course, should there be some kind of defeat, then
Richard can file his Superior Court Motion for an Order of
Prohibition just like the Nielsens and maybe get lucky and
have heard what Greg Smith managed to fool the Nielsen judge
out of dealing with in Brantford.
I think yesterday's hearing brought the administration of
justice into disrepute. What does the Internet Court of
Public Opinion think? Did the Nielsens get a just hearing of
their application to prohibit charges under sections struck
down by Parker and Krieger?
The transcript of the Tuesday Elliot Lake decision will be
published Friday night, but as soon as ready to the medpot-
preview group anyone can join by putting a reporter on the
spot about the Frankel Gang Bogus Charges Scandal and
reporting that fact to medpot-preview@yahoogroups.com
Of course, should the Serre decision make the news, I'll
feel free to publish it and my report earlier. No news, time
delay for all who haven't let their fingers do the walking
to the telephone dial. (Virgil, Ron, GEM, send email adds)
If Krieger doesn't win tomorrow, I start kicking at the
Supreme Court of Canada next. Maybe a letter to the Prime
Minister about how the Court can't handle their uppity
clerks. As if some clerk's going to rule a law doesn't apply
to me and I'm going to back down quietly?
Last point, resistance is growing. There are reinforcements
on the horizon:
>Date: Jan 13 2005
>www.overgrow.com or org
>sledman jones
>title: We can empty Canadian jails for all MJ charges:
possession/ cultivation / trafficking
Read the latest posts on this forum about the ongoing battle
in Canada for the end to prohibition of Mj It deals with the
issues which Lothar brought up in the other post here and Mr
Turmels answers to Lothar.
http://health.groups.yahoo.com/group/MedPot/
I find them very convincing and I am working on my motion to
quash as we speak.
JCT: Keep in mind that even though the Crown refused to
answer Judge Edward's third Question about whether the
Hitzig Court had the power to resurrect the statute that had
been struck down but insisted that they wouldn't have if
they couldn't have so they can, Ontario Judge Edward
accepted that he was bound the 3 higher Ontario judges'
Hitzig ruling. No other province judge can say they're bound
to continue with the Simmons, Goudge, Doherty deed. No other
province judge can lay the blame for the dirty prosecution
on higher ups. Only Ontario lower judge's can use the
Nuremberg "I vas just following orders" alibi. A Manitoba
judge can't use the Nuremberg defence. He can't do the dirty
deed to Kid Manitoba saying he's bound to do the dirty deed
by the Doherty Deed Court.
That's why we have to get this before a judge who can't
plead the Nazi defence when the truth gets out. In other
provinces, the judge has to do the dirty deed on their own,
no forced dirty deed by higher ups there.
>Lothar
Ok man, do what you wish. I told you already that you can't
hurt yourself by the "Turmel" motion to quash as long as you
make no admissions... Do you get the idea that I am out to
harm you or prohibit you from making a proactive defence???
Go for it, I'm just saying that it's a dead end. It's wrong
in law.
JCT: I'm saying it's a dead law but I sure appreciate your
advising your friend right. So why not try the "it's good
out of Alberta too" defence some time? What have you got to
lose? I know lots of people who'd hire you as their legal
aid lawyer if you'd make their Krieger presentation for
them. Especially in Alberta where you too believe Krieger
rules. How about helping at least the Frankel victims in
Alberta if not the rest of the country, yet. You could still
be the first lawyer to present the case. That glory is still
open.
Is it really so hard to accept that a scientist trained in
determining fairness with math can be superior to the trial
and error profession? All you have to do is accept that I
dug out the truth because I was the only one who saw it and
say "I too see the light." And make legal history.
Anyway, if anyone sees an opportune time for Kid Manitoba to
launch his attack, if you spot a moment when it would cause
the Crown real inconvenience to have a charge come at them
out of a Hitzig-proofed province, make sure to speak up and
let me know.
Say, isn't that 19-year old kid busted with 1 joint coming
up in Brantford in a few days? 30 day notice to quash, 3 day
notice to prohibit, gee, we could be back before Judge
Festeryga in as little as 5 weeks. What a challenge. Maybe
the kid will be able to set him straight. We'll see.
Perhaps the kid should file his Superior Court motion
without a motion to quash. Then Smith won't be able to point
the quash motion in the prohibit motion and confuse the
judge like he did here. What better proof that the quash
decision had nothing to do with the Superior Court prohibit
decision than being able to go for the prohibit without the
quash.
Preferably, it's all over tomorrow. Except for me. The
Engineer would have to then push abolition of prohibition of
the Tree of Life more forcefully on the World Social Forum.
It would certainly free up more time to concentrate more
fully on the world-wide solutions.
--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 519-753-0645 USENET: can.politics
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