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JCT: Since the Project Robin Hood raid on Casino Turmel case was
brought up in the Big Five Marijuana appeals at the Ontario
Court of Appeal recently arguing against judges imposing new
criminal sanctions, rather than Parliament, I've decided to to
publish the transcripts of the trial on the biggest gaming house
raid in Canadian, probably world, history. 28 tables/155 dealers.
See: http://www.cyberclass.net/turmel/gambler.htm
930721
#93-18193
ONTARIO COURT (PROVINCIAL DIVISION)
HER MAJESTY THE QUEEN
against
JOHN TURMEL
**********
SHOW CAUSE
HELD BEFORE HIS WORSHIP JUSTICE OF THE PEACE R. SCULTHORPE
on the 21st day of July, 1993 at Ottawa.
**********
CHARGE: S. 201(1) (2 counts), C.C.
S. 202(1)(e), C.C.
S. 202(1)(c), C.C.
**********
APPEARANCES:
A. Marin, Esq. Crown Counsel
J. Turmel Appearing for Self
CLERK OF COURT: I don't believe he has any counsel. I'll probably
have to arraign him. John Turmel, you are charged that between
the 25th day of February, 1992 and the 14th day of July, 1993, in
the City of Ottawa in the said Region, unlawfully did keep a
gaming house, to wit: units 107, 102, 103, 104, 105, 2335 St.
Laurent Boulevard in the City of Ottawa and elsewhere in the
Province of Ontario, contrary to section 201(1) of the Criminal
Code of Canada.
You are further charged that between the 25th day of
February, 1992 and the 14th day of July, 1993, inclusive,
unlawfully did keep a common betting house, to wit: units 107,
102, 103, 104, 105, 2335 St. Laurent Boulevard in the City of
Ottawa and elsewhere in the Province of Ontario, contrary to
section 201(1) of the Criminal Code of Canada.
You are further charged that between the 25th day of
February, 1992 and the 14th day of July, 1993, inclusive,
unlawfully did engage in the business of occupation of betting,
contrary to section 202(1)(e) of the Criminal Code of Canada.
You are lastly charged that between the 25th day of
February, 1992 and the 14th day of July, 1993, inclusive,
unlawfully did control monies for gambling related to the offence
of engaging in the business of operation of betting, contrary to
section 202(1)(c) of the Criminal Code of Canada.
COURT: Mr. Turmel, do you have counsel?
TURMEL: No, I don't. I have two law students who are going
to be helping me. They are both here in court to witness what's
going on.
COURT: All right. Mr. Marin, what's going on this morning?
MARIN: Yes, Your Honour, the Crown is consenting to the
release of the accused on the following conditions I'm submitting
to the Court.
COURT: Mr. Turmel, the Crown is prepared to release you on a
$1,000 cash bail. You are to notify Sergeant R. Cleary of the
Ottawa Police 24 hours prior to and in writing of any change in
your address. You are to reside at 2918 Baseline Road, Nepean.
Not attend at 2335 St. Laurent Boulevard, Ottawa and not attend a
common gaming house as defined by the Criminal Code. Do you
understand the conditions, sir?
TURMEL: Well, not quite. Does that mean I'm not supposed to
be caught in another gaming house before my trial?
COURT: That's the intent of the condition, I would believe.
MARIN: If it could also be amended, Your Honour, not to
attend or operate, please.
TURMEL: Well, is a poker game considered a gaming house to
the Crown? If it is, I'll have to say no, and if poker is okay in
my home, then, I'll say yes.
COURT: Mr. Marin?
MARIN: Well, the term is used as defined in section 197 of
the Criminal Code, the common gaming house provision. If I can
just refer the Court to section 197, where the game is defined as
being a game of chance or mixed chance and skill. Section 197,
Your Worship, under the definition common gaming house, the game
is defined two definitions lower.
COURT: Mr. Turmel, You're going to have to have your student
counsel look at section 197(1) of the Criminal Code. If you fall
within the parameters of the definitions, then, you'll be in
conflict.
TURMEL: Well, Your Honour, in 1981, when I was charged
similarly, the Crown made a similar request and the Judge said it
wouldn't be necessary because I was no threat to society and
didn't impose any conditions at all and I'm just - I think these
conditions are rather onerous - considering there is no risk of
flight. I have a defensive offence set to go. I don't understand
what all those conditions are about, especially when there seems
to be such a vagueness as to what constitutes a gaming house. Is
it fair for them to include words that they barely understand and
expect me to live up to them. I consent that if I was convicted
of something or charged with something, perhaps, but....
COURT: Well, that's the fact, Mr. Turmel, you are charged.
MARIN: Your Worship, it is that I don't want to turn the
show cause into a trial court. Perhaps, we could just stand it
down. I'll speak to whoever he has to represent him and try to
reach some type of agreement, otherwise, we'll run the show
cause.
COURT: All right. I am not prepared to impose that condition
as it stands in any event. It's way too broad as far as I'm
concerned. As far as operating a gaming house, that is going to
be up to a trial Judge to decide whether Mr. Turmel was or can be
released on a minimum of a bond. Do you wish to run a show cause,
then? As I said, Mr. Marin, Mr. Turmel, think, is well-known in
the area. I do not believe the $1,000 cash is necessary.
MARIN: Okay. Thank you.
COURT: Mr. Turmel, outside of the other conditions that you
not attend at 2335 St. Laurent Boulevard, that you reside at 2918
Baseline Rd., Nepean, that you keep the peace and be of good
behavior, and notify Sergeant Cleary, do you have any objections?
TURMEL: Just to the 2335 St. Laurent. Guaranteed that I am
not going to re-open a casino there and put the employees in
jeopardy, so, I see no reason why I shouldn't be able to go, for
instance, plan my defence, discuss things, settle with my
landlord, move things. I don't find 2335 St. Laurent has any
reason for my being excluded from it, unless I were going to
start another game, which I will not.
COURT: Well, Mr. Turmel, I have no trouble imposing that
particular condition. It is the alleged site of the offence.
TURMEL: Okay.
COURT: You will be released, then, on signing a $1,000 bond.
You will appear back in court one week from today, on July 28,
8:30a.m. in Courtroom Number Five.
TURMEL: May I, at this stage of the game, be allowed to
request an opportunity to have a hearing to present motions to
quash the charges before the plea? And may I request that Judge
Lennox be seized of such motions, considering he is up on the
information already.
COURT: That's beyond my parameters, Mr. Turmel. You can talk
to your student counsel and...
TURMEL: So, next week, it's just the plea?
COURT: Yes. To indicate a plea in courtroom #5. In the
meantime, you can ask the Crown for disclosure and any other
pertinent data that you need. All right. You are free to go.
**********
19930806
#93-18193
ONTARIO COURT (PROVINCIAL DIVISION)
HER MAJESTY THE QUEEN
against
JOHN TURMEL
**********
MOTION TO QUASH FOR INSUFFICIENCY
HELD BEFORE THE HONOURABLE JUDGE J.D. NADELLE
on August 6, 1993 at Ottawa, Ontario.
**********
CHARGE: S. 201(1)
CHARGE: S. 201(1) (2 counts), C.C.
S. 202(1)(e), C.C.
S. 202(1)(c), C.C.
**********
APPEARANCES:
A. Marin, Esq. Crown Counsel
M. Edelson Appearing for Defence
NOTICE OF APPLICATION
TAKE NOTICE that an application will be made for an Order
quashing the Information
1) on the basis that the Applicant has not been reasonably
informed of the substantive offence and the acts or conduct which
allegedly form the basis of the charges,
2) that the Applicant is unable to make full answer and defence
and to know the case he has to meet, and,
3) that the Information has not charged a crime known to the law;
and,
4) on the further basis that the Information is defective in
substance for the failure of the offences as charged to satisfy
the mandatory requirements of s. 581(3) of the Criminal Code of
Canada,
5) and because the offences as charged are capable of
encompassing a multitude of separate and distinct activities.
Michael D. Edelson,
AFFIDAVIT OF JOHN TURMEL
I, JOHN TURMEL, of the City of Nepean, in the Province of
Ontario, OATH AND SAY AS FOLLOWS:
4. That the Landlord, Howard Appotive of the premises at Topaz
Plaza, located at 2335 St. Laurent Blvd. in the city of Ottawa
indicated to me that I had ten (10) days commencing the 16th day
of July, 1993 within which to bring a motion to quash the
Information.
5. The premises known as Casino Turmel employ approximately one
hundred (100) individuals on a full time basis.
6. The Landlord of the said premises has advised me that if I do
not obtain a decision that I must move out of the aforesaid
premises.
COURT: Mr. Edelson, you've brought a Motion to Quash the
Information.
EDELSON: Yes, the last count in the four count Information refers
to 202(1)(c). If we refer to 202(1)(c), it says: "Every one
commits an offence who (c) has under his control any money or
other property relating to a transaction that is an offence under
this section...". And you'll note, Your Honour, that the further
wording says: "related to the offence of engaging in the business
or occupation of betting..." Now, because of the wording in the
Information, there's no offence known to law. Your Honour will
note the wording that has been chosen by the authorities here is
that he: "...unlawfully did control monies for gambling related
to the offence...". et cetera. "Gambling" is nowhere defined,
which is another difficulty we have because nowhere in the Code.
We have "gaming". We have "betting", "gaming houses" and "betting
houses". We have "bet" defined, but "gambling" is not defined.
Working backward through count four, there's no offence known to
law in count four and, therefore, it's a nullity ab initio and
must be quashed, is not capable of amendment.
The first count of the Information refers to, "unlawfully keeping
a gaming house", and it is not an offence known to law to keep a
gaming house. The offence known to law is the keeping of a common
gaming house and that's the only thing that's defined under 197
as a criminal act. This is not an offence known to law and is
void ab initio, count one, and, therefore, must be struck down.
It cannot be amended, in my respectful submission, given the case
law I'll be referring to momentarily.
That leaves our focus, Your Honour, on counts two and three, "did
keep a common betting house", and three, "did engage in the
business or occupation of betting". Now, these counts are
deficient under 583. Section 197 is the definition section and
under that section, "common betting house means a place that is
opened, kept or used for the purpose of..." Your Honour can see
already in the opening definition that there are three different
modes. It can be opened. It can be kept or it can be used for
specific purposes.
"(a) Enabling, encouraging or assisting persons who resort
thereto to bet between themselves or with the keeper...". So
there are, in addition to that, four different modes in which the
offence can be committed and then, under subsection (b), which is
a disjunctive section: "Enabling any person to receive, record,
register, transmit or pay bets or to announce the results of
betting". There are, it would appear, six or seven further modes
under that subsection.
Now, the second related definition is the "common gaming house"
definition, because of the absence of the proper definition, we
have the five different modes, subsection (a) and the four under
subsection (b) under which this particular offence can be
committed. It is our submission, Your Honour, that these are, as
defined by Wiz, diverse and unrelated modes of committing the
offence and that's the key. There are numerous and diverse ways
in which the gaming -- common gaming house offence can be
committed, as well as the common betting house offence and these
are the central points of attack.
The law, of course, Your Honour, has changed somewhat in the last
15 years with respect to technical averments as we're all aware.
The former 510 is now 583 of the Code, which talks about
sufficiency of a particular count and it says that:
"No count in an indictment is insufficient by reason of the
absence of details where...the count otherwise fulfills the
requirements of section 581...". And then, they go on to say that
it's not insufficient only because it doesn't name the means by
which the alleged offence was committed and that, of course,
would be an argument available to the Crown. However, the courts
have held that that section does not save an invalid information.
It does not, and these are the key words use in case after case,
"does not carry the facts from the -- averred in the information
from the general to the particular", and that, of course, is the
central test that's always applied and is applied in Wiz
Developments, does the information in its wording carry the
averment from the general to the particular so as the accused
knows sufficiently what it is he's being called upon to answer?
Section 601, Your Honour, of course, is the next section of
relevance to us and that is the section relating to the accused's
right to move to quash. It must be done prior to plea where it is
alleged there's a defect on the face of the information and it is
our submission that that is the section under which we are
entitled to move today to have these counts quashed.
What I'd like to do, Your Honour, if I may, is, historically,
just summarize the development of the law on the issue of
quashing informations. There have been several misinterpretations
by appellate courts of the central judgment on gaming, the
Manitoba Court of Appeal decision in Bingo Enterprises. In
Milberg, our Ontario Court of Appeal made a decision which has
been taken by other courts, such as the Quebec Court of Appeal in
a gaming case, as having overturned Bingo Enterprises. In other
words, as having said, "We don't follow Bingo. We don't agree
with Bingo".
COURT: Well, they didn't overturn it. They just don't agree with
it.
EDELSON: Exactly. They had no power to overturn it...
COURT: Right.
EDELSON:...effectively, but they're saying, "We distinguish
Bingo", or, "We don't agree or follow Bingo". And what's
interesting, Your Honour, is that's what I thought they said the
first time I read Milberg and then, in re-reading it, it became
clear to me that that's not at all what the Court of Appeal was
saying.
You'll recall, Bingo followed Wiz, which had just been decided
and dealt with the issue of not only the sufficiency of the
information, but on the issue of the ability under what was then
732, as I recall, to amend an information when it was viewed as
being insufficient. Now, in Bingo, the charge is virtually on all
fours to our count number one, assuming the common gaming house
averment was there. If Your Honour looks at page 292, it says:
"On the 18th of March, 1982, did unlawfully keep a common gaming
house contrary to the provisions of the statute in such case made
and provided." Your Honour will note at the top portion of 292 in
the head-note, Wiz is referred to and applied by the Manitoba
Court of Appeal and they point out common gaming house as having
several separate and distinct activities included in the
definition. They simply recite what is now 197 that I've just
recited to you. It goes on to say:
"The accused says that although the charge follows the wording of
185(1), it fails to identify what aspect of their conduct over
the nine months or 15 days is alleged to be criminal." The court
goes to Wiz Developments and says:
"It is determinative of the appeal. The charge does not meet the
mandatory requirements of 510(3) of the Code and is, therefore,
ab initio vitiated."
Quoting from Mr. Justice Lamer, as he then was, the court said:
"The statute under which the information at bar has been laid
casts a broad net and the prohibition is directed at many diverse
and unrelated uses of aircraft in Canada." Now, this definition,
"diverse and unrelated uses", is the foundation of an application
of this sort. The court at the bottom, Your Honour, second last
paragraph about the fourth line up talks about Wiz and says:
"The circumstances in this appeal are analogous. In both cases,
the charges in the Information are words of the enactments that
describe the offences. The Aeronautic Act defines the operation
of a commercial air service...".
And then, they go on:
"The Criminal Code defines a common gaming house to include a
number of separate and distinct activities. In neither case, do
the charges describe the offences in such a way as to lift them
from the general to the particular."
Second last line:
"particulars have never been considered as a proper mean to cure
vitiated informations for defects of substance...".
I'd like to go directly to Milberg, Your Honour, if I may, while
we have those words fresh from Bingo. It's the only reference in
the case to Milberg and, again, I must say I read this wrongly
the first time. This is the first paragraph:
"We are obliged to note our respectful disagreement with the
opinion of the Manitoba Court of Appeal, R. v. Bingo Enterprises
Ltd.". Now, when you read that, I said, "Well, they're not going
to follow Bingo", but, then, I read on. It says:
"...that Wiz Developments overruled R. v. Griss and Gruber."
Now, pausing there for a moment, they don't say, "We disagree
with the principle of Bingo". They say, "We disagree with that
portion of the judgment in Bingo where they say Wiz overruled
Griss."
Griss and Gruber was a betting house case in which the court said
that book-making was, like prostitution, basically one and not
several diverse activites and shouldn't be specified. And yet, in
1987, the Manitoba Court in Wilson in a betting house case
specifically over-ruled Griss and is now cited right in the
Criminal Code for the required sufficiency of gaming and betting
houses. Of course, Milberg is also cited for the not-required
sufficiency of bawdy-houses. It was certainly made very clear. A
judge would have to be pretty French to still think the bawdy-
house ruling over-ruled the gaming house ruling when they
actually disagreed with a betting house ruling.
That's all I'm saying in this judgment. Now, this, unfortunately
has been misread because the Quebec Court of Appeal in Billon-Rey
and the Crown jumps on the bandwagon and says that the same thing
applies. In other words, the Ontario Court of Appeal has chosen
not to follow Bingo. But, of course, that's not what they say.
"We disagree with the interpretation of Bingo where they say Wiz
overrules Griss." That's all they say. They never say, on the
issue of gaming, that Bingo doesn't apply.
COURT: If that is correct, then, am I not still bound by Griss
and Gruber?
EDELSON: My view is no because they refer to different offences.
COURT: Griss and Gruber was betting house, almost identical.
EDELSON: Not gaming, though. Milberg says it's every one who
keeps a common bawdy house. It has nothing to do with gaming
whatsoever and I'm going to come back to a judgment by Judge
Fontana of this court where he also is called upon to quash a
similar information and, in my view misinterprets the Milberg
reading of Bingo, but he makes a distinction himself in any event
between being a found-in, because of the very narrow definition
of what it is to be a found-in and the issue of gaming and when
one looks at Milberg, we have to look at what the charge was.
It's keeping a common bawdy house and court says:
"Many offences are capable of being committed in more ways than
one. the charge of keeping a common bawdy house is not of that
nature. While the offence may be perpetrated a number of
different ways, it cannot be said to be diverse or unrelated and
that it is not necessary to refer in the information the
particular part of the definition of the offence it is intended
to be invoked at trial."
And, of course, Bingo does refer to the gaming section, not the
bawdy house section. The court in Milberg says bawdy house. It's
very simple. It's either acts of prostitution or indecency. That
is one averment. It's all related and that's all there is to it.
However, gaming is different and as the Court of Appeal of
Manitoba said in Bingo, is more analogous to the situation in
Wiz, dealing with the Aeronautics legislation, than this. Milberg
simply says that they disagree with the interpretation of Bingo
Enterprises, that Wiz Developments overruled Griss and Gruber,
that's all they're referring to.
They're not saying, Bingo doesn't apply in circumstances of this
sort. They're not disagreeing with Bingo per se. They're simply
disagreeing with one statement made earlier in the Bingo
judgment.
Now, the other case which I feel duty bound to bring to your
attention is Billion-Rey at the Quebec Court of Appeal because it
is a case of a common gaming house. The wording would be exactly
-- virtually exactly the same as our Information. What's
interesting, of course, is that they misinterpret, again, what
the Court of Appeal did in Milberg. It says:
"Three years later, the Ontario Court of Appeal was called upon
to rule on exactly the same circumstances as those in the present
case on an exactly identical indictment."
is where the Quebec Court of Appeal falls into error. It wasn't
the same indictment. It was a totally different charge with
totally different elements and it did not have the unrelated and
diverse elements as referred to in the Supreme Court of Canada.
So, in my submission, one, again, has to carefully delineate what
was the information in each charge that was before the particular
court. The court says: "In Milberg, the Ontario Court of Appeal,
taking a different position from that taken in the 1984 judgment
by the Manitoba Court of Appeal, concluded the indictment as
drafted was valid." And all the court does is they quote part of
Milberg and at the end says: "I completely share this point of
view".
But having fallen into the error at the beginning of saying that
they were called upon to rule on exactly the same circumstances
as those in the present case and on exactly the identical
indictment, of course, it's no surprise that they fall into error
because Milberg and Bingo are totally different. Milberg does
not, for our purposes in terms of stare decisis, overrule Bingo
and it doesn't bind this court on gaming charges. The argument is
that Bingo is the only one of the appeals which properly is
before this court on the issue of gaming, is properly decided on
the issue of gaming and is a case which I urge Your Honour to
find favor in.
Milberg does not overrule it for the purposes of Ontario in
binding this court because it's on a totally different issue that
a Quebec Court of Appeal, then, falls in the same error by
suggesting that Milberg was about the same facts, same indictment
when, of course, it's totally different, totally different
offence and totally different elements comprising the offence.
If Your Honour finds that you are not attracted to the argument I
make distinguishing Milberg and Bingo and Billion-Rey, and Wiz,
it's over in reference to the counts one and two. It's
potentially over.
Now, a quote from Ryan, the Ontario Court of Appeal, which dealt
with the precise location of an impaired driving:
"The Court of Appeal reasoned that the rationale of Wiz was based
not on the failure to set out the time or location of the
offence, but rather on the failure to identify the particular act
which was alleged to have constituted the offence".
Now, in Douglas, they say:
"In our opinion, the kind of information that will be necessary
to satisfy this test will vary depending on the nature of the
offence charged. What particularity will be needed with respect
to a given charge will "depend on the circumstances. From these
cases, it can be seen that an indictment is adequate if it
contains sufficient details to give the accused reasonable
information with respect to the charge and to enable the accused
to identify the transaction so as to permit the adequate
preparation of the defence. Whether an indictment is sufficient
will depend on the offence charged and the facts of the case."
Our interest is the acts involved and the nature of the offence
and it's only when you look at those very specific items can you
make a determination whether 601 should apply to the quashing of
the Information before you and my argument is that Milberg has no
application to gaming house because it's a different offence and
Bingo does apply and for that reason. The two offences should be
quashed in any event.
Now, there was a subsequent judgment, Your Honour, in the
Manitoba Queens Bench, R. v. Wilson, and that was also a similar
case where Bingo was, of course followed in the Manitoba courts.
Our research did not turn up any other case directly on point
dealing with the quashing of a gaming house information, whether
for or against. What we did turn up was a judgment, as I said to
you at the start, of Judge Fontana of this court and I'd like to
provide you with a copy in R. v. Booth, Lo, Michael Mahfouz and
Tasso Paliovarkas.
COURT: That's not the one in tab 15.
EDELSON: It is, but it's not the right portion. This is the
portion where they sought to quash the information. The portion
you have is the acquittal portion. This is the part, Your Honour,
and I thought you should be aware of it for several reasons,
where, at the beginning, it was Mr. Grace and Mr. Sagle appearing
for the accused and the motion you'll see at page 2, Mr. Sagle
says:
"Before arraignment and plea, I have a motion under 601 objecting
to the Information. I'm objecting the charge based on the fact
that it's too vague under 510(3)." Your Honour, it's important to
keep in mind this distinction, was found-in in a common gaming
house as opposed to keeper of a common gaming house and we have
all of these gentlemen here as found-ins.
COURT: He argued Bingo and Wilson as well.
EDELSON: In the course of argument, Bingo came up, Milberg came
up, all of the cases were referred to. Now, this is Miss Cote,
and listen to what she says in raising Milberg which, again,
superficially is the Crown's strongest suit here:
"The Court of Appeal proposed in those days, Justice Cory, as he
then was, Robins and Finlayson states: "We are obliged to note
our respectful disagreements with the opinion of the Manitoba
Court of Appeal in Bingo Enterprises Ltd.".
Stops there. That's, of course, not what the sentence says as
I've read it to you. It goes on to say that Wis didn't overrule,
et cetera. So she presents to Judge Fontana the notion that our
Court of Appeal, which she apparently does from reading from the
decisions in quotations, not only disagreed with, but effectively
said that the Manitoba Court of Appeal judgment in Bingo
Enterprises is not to be followed.
Now, I'm sure that was inadvertent and I can see how she made the
mistake, but, clearly, she was wrong in that direct quotation
because she reads only half the sentence. Now, what's interesting
is Judge Fontana, unfortunately, has not seen the cases at this
point. He says:
"Mr. Sagle, what am I to do with the expressed rejection of Bingo
Enterprises case in the Ontario Court of Appeal?".
Well, of course, now, he's fallen into the trap because it's not
a rejection of Bingo. Well, Mr. Sagle says:
"Actually, if I'm not mistaken, I don't think it refers to
Bingo."
The court says:
"Well, at the bottom of page 7...".
So he clearly has been handed the case. Mr. Sagle says:
"It doesn't actually overrule Bingo. It says it disagrees with
that opinion, overruled an earlier case.
And Mr. Sagle's back on the issue again. He's clearly reading the
sentence as it should be read. Then, there's some discussion
about this passage. There seems to be great confusion between not
only counsel but the court as to what really happens in Bingo and
Milberg: SAGLE: "There is a principle from Bingo that they seem
to disagree with. It could take a little while to figure this
out, but it doesn't seem to be saying that Bingo would be
overruled if it was in Ontario. It just seems to say that part of
what was mentioned in Bingo, that the principle that seemed to
come out of it and the ratio, perhaps, was stretching too far. It
doesn't really overrule Bingo, at least my first reading of it."
--
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 519-756-1325 USENET: can.politics
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