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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
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
[continued]
Edelson: And His Honour leaves and he comes back and this is
where, in my submission, His Honour does make a very important
and significant distinction, while at the same time not properly
reading Milberg:
"I want to point out that the charges have to do with being
found, which is the operative word, in count one in a gaming
house, count number two in a betting house. This, in my opinion,
is significant for this reason: When one compresses that with the
old section 185(1) of the code, which is keeping a gaming house
or a betting house, one can see in 85(1) the gravamen of the
offence is the keeping of the house in question, that is carrying
out the operation. Clearly, where 185(1) is charged and is
directed at the operator, as it were, it, no doubt, would be
highly significant to the accused to knowing what manner of all
of those set out by counsel in argument he's alleged to have been
keeping the house. Section 185(2), however, that is, the found-in
section, presents as the gravamen of the offence merely the act
of being found in the place without lawful excuse. The thrust of
the charge is not directed toward how the operation is carried
because they are not charged with that. They are merely charged
with being found in the place where some activity is going on and
in my opinion, the use of those words in 185(2) is merely
descriptive of the premises and need not go further. I believe
the distinction is a valid distinction and I repeat, the gravamen
of the offence in 185(2) is being found in the place without
lawful excuse."
So what I say, Your Honour, is he draws that key distinction. His
Honour sees the difference between being a found-in and being a
keeper is a key and His Honour says, I say inferentially and
implicitly, that had it been different, in other words,had it
been keeper, that he might well have quashed the information
because he's saying at that point, it would be important to know
how the operation is carried out, but, he says, in this case,
they're not charged with that. He said: "I believe the
distinction is a valid one. I have read the decisions in Bingo
and Wilson. I've had a quick look again at Wiz and a very broad,
all encompassing decision again at Harvey Milberg et al."
He goes on to talk about the binding authority of the Court of
Appeal. He says: "I'm bound my Milberg and the statements there
of Mr. Justice Robins with respect to his own respectful
disagreement with Bingo Enterprises in the Manitoba Court of
Appeal, in fact, amount to a rejection of that decision and it is
a rejection by which I am bound."
I submit to Your Honour, with the greatest of respect to Judge
Fontana, he fell into the same trap or error as the Quebec Court
of Appeal in its reading of the wording of Milberg. So I thought
Your Honour should be aware of that. On the one hand, His Honour
does distinguish between "keeper" and "found-in" and that's an
important distinguishing feature and he effectively, I say
inferentially, decides that he would've decided the case
different and quashed the information if it had been gaming and
on the other hand, he says that Milberg binds him as having
rejected Bingo and, of course, in my submission to you, the clear
wording of Milberg, when read fully, is quite the opposite.
Now, Your Honour -- and I'd like to come back, finally, Your
Honour, to deal with Griss because Your Honour asked me, "Am I
not still bound by Griss, then, given the wording in Milberg?".
You may well be, except that it's not relevant to our
consideration because what is being determined in Griss one sees
is something quite different. Here, the defendant was charged
with keeping a common betting house, and the court was called
upon to deal with that particular information on the issue of
sufficiency.
I say to Your Honour that when we analyze it in this way and we
must, always keeping our eye on the target, the target being what
is the offence alleged? What are the acts alleged in the
information? That when we analyze it in this way, distinguishing
where we must offences and acts which have no application, that
one can see very clearly that on all of the prevailing case law
and interpretations of it, that the counts one and two must be
struck down.
That count four is not offence known to law and similarly, count
three is defective in the same way. In my submission to Your
Honour, that results in the quashing of the Information before
you. If there's any way you're troubled by any of these cases and
the rationale and how they interface, I'd be happy to try and
answer any of those questions, Your Honour, but it seems to me it
will ultimately be your interpretation of whether these S.C.C.
judgments, in fact, fall into place as I have analyzed them and
whether Bingo, it remains standing at the end of all of this
analysis. If it does, in my submission, they must be struck down.
If it doesn't in your analysis, you don't, except perhaps count
four, which, on other grounds, may be well be struck down. Thank
you, Your Honour.
COURT: Crown?
DANDYK: Yes, Your Honour. However one interprets Milberg, either
as binding authority or persuasive authority, it does clearly
address the issues before this court in ways as referred to and
the wording according to the Code section, be it common bawdy
house, common gaming house or common betting house is found to be
sufficient.
That's the kind of wording we have before us and it is a question
of semantics to suggest suddenly when one reads it closely, on
the wording itself in count one, in the Crown's investigation of
"unlawfully keep a gaming house", we have a typographical error
where common gaming house -- in fact, "common" was not added. I
would be asking for that amendment, to simply add that word.
Now, it is clear that the crux of counsel's argument relates to
Milberg and Bingo and it's important to note that while Milberg
is a common bawdy house charge, that any reference to Griss and
Gruber and ultimately, the ultimate conclusion, then is effective
a strong obiter as opposed to ratio.
In any case, the entire argument is an issue of semantics.
Whether Billon-Rey, the Quebec Court of Appeal, misinterprets
that finding or not, they similarly found a similar wording to be
sufficient and they have no trouble with the various definitions
provided and it's important to note that, in respect of common
bawdy house, there is as well an (a) and (b) definition provided
under 197 and it should be noted Judge Fontana was questioned in
his decision on the quash. I note at page 16 that what is
specifically stated is that he finds that Milberg does amount to
a rejection of Bingo, which for some obscure reason, maybe I'm
putting to much in the words "amount to a rejection", but it may
well be that he read it as he saw it and in this Crown's
respectful submission, that's exactly what it is.
That when one looks at Milberg's reliance on Griss and Gruber as
the basis for the entire argument, that does amount to a
rejection and when one may quibble whether it's obiter or ratio,
it is the crux of the entire decision and, therefore, it does
amount to a rejection and it is, as noted in Milberg, significant
to note that leave to appeal to the Supreme Court of Canada in
Milberg was refused, that then being, effectively, at least
persuasively if not precedent value, the highest decision in the
land.
In passing, it becomes significant to note that the Frenette
decision from the Quebec Superior Court which related to an
application to force the lower court judge to provide
particulars, notes that an application to quash the wording that
is virtually the same as this was rejected by that court. Both by
reference to Griss and Gruber and to the entire rationale in
Milberg, it's the Crown's respectful submission that our Court of
Appeal is of the view that the general wording from the section
is adequate.
And then, the court goes on to discuss Griss and Gruber and
although one distinguishes between keeping a common betting house
or keeping a common gaming house, in fact then, in Milberg,
keeping a common bawdy house - at least the Ontario Court of
Appeal in Milberg clearly does not distinguish between them.
The crux of counsel's argument is that, in fact, this offence can
effectively be committed in a number of ways. What is clear in
Milberg, though, is that the court finds that general wording is
sufficient and adequate to cover that and ultimately finds common
bawdy house and by referring to and approving of Griss and Gruber
that being sufficient. That's defence's argument.
The entire argument within Milberg is right on point and to
suggest that while technically they disagree with Bingo only
insofar as to the point whether Wiz is over-ruled or not is to
read it much to simply. One reads it entirely and they clearly
approve of that general rule and that does address the issue of
sufficiency and that is the approach to be taken by this court,
whether it views it as binding or whether it views it as
persuasive.
To bolster Milberg, Dandyk brought up Regina and R.I.C., a sexual
assault case; R. v. Doug Dale, a charge of gross; R. v Cook,
another sexual assault; R. v. Moore, a possession of stolen
property; G.B.A.B and C.S. versus The Queen, sexual assault. I
found it funny that he had to use all those sex cases to back up
his bawdy-house precedent for gaming house sufficiency, Because
all the
We are, therefore, left with the charges before this court and I
have already indicated to this court it is the Crown's respectful
submission that Milberg is appropriate. The Quebec Court of
Appeal case in Billion-Rey is appropriate. That they are, at the
very least, persuasive, if not binding on this Court.
I note in passing that counsel took, I suppose, considerable
solace in Judge Fontana's differentiating between a "found-in" or
a "keeper" and as to the logic of that argument, I see some
concern because if I were the found-in and I had, I suppose,
argument to be made as to which definition there's sufficient
information to be precluded from making that argument because I'm
a found-in and not a keeper doesn't seem, at least in the Crown's
respectful submission, assuming defence's argument applies, an
appropriate distinction.
I don't think it changes Milberg and I'm suggesting that Milberg
is applicable, but it doesn't seem an appropriate distinction for
that reason. It is the Crown's respectful submission that Milberg
is applicable.
Count two, of course, in the Crown's respectful submission needs
no amendment for the same reasons. It is, in fact, sufficient.
Count three, in the Crown's respectful submission, again, is
sufficient. We, in fact, have clear, careful detail provided and,
in fact, the wording specified under 202(11(e) and we, in fact,
have further specification as, "to engage in the business or
occupation of betting", one of the portions of that and I'm
suggesting that is sufficient detail.
Count four. Counsel has criticized or questioned whether
"gambling" is an appropriate word within that section. He's
suggesting it doesn't exist within that section. I note under (9)
the word "gambling" is used and under (b) the word "gambling" is
used. In fact, under (b), the word "gambling" or "betting" is
used. They are, effectively, interchangeable. If any meaning is
to be given to the difference, referring to the dictionary
definition, one could change that to the word "betting" and it
wouldn't substantively change the offence and that, again, is
more semantic. I'm suggesting it is sufficient. Subject to any
questions, those are my submissions.
COURT: Do you wish to make a brief reply?
EDELSON: Yes. My friend keeps repeating, Your Honour, Griss,
Griss, Griss and Gruber. I don't see any specific reference to
distinguish the comments I made already. I also simply make one
further reference that I neglected to point your attention to,
Your Honour, the top of 190 of Griss where they said:
"In our view, this does not mean merely classifying or
characterizing the offence. It calls for the necessity of
specifying time, place and matter of stating the facts alleged to
constitute the indictable offence." And then, the last sentence
of the next paragraph:
"There must be in words sufficient to give the accused notice of
the offence with which he is charged."
That, of course, has now changed. No matter how we look at it, in
my submission, my friend valiantly, I think, tries to distinguish
Wiz and say that Bingo would have no application, but Wiz, of
course, says very specifically where there are diverse and
unrelated acts that must call for very specific details in the
information or indictment and similarly, as the court says in
Wiz, they can't be resolved by particulars. My friend makes
mention of disclosure, of particulars, et cetera. The Supreme
Court of canada said very clearly that that does not resolve an
information or count in an information that's void ab initio and
that's my position. If Your Honour takes a different position
that it's not void but merely lacking in particulars, I move
under 5861l)(f) that Your Honour order particulars in each count,
if you uphold the validity of the counts themselves, as to the
mode in which it's alleged by the Crown that these offences have
been committed. As I pointed out, there's up to ten variants in
the various sections, some of which are totally unrelated in my
submission.
COURT: We'll recess for now.
RECESS RESUMING: - - - - - -
COURT: The accused is charged with four offences. Defence counsel
has brought a Motion to Quash all charges in the Information.
Section 581(1) states:
"Each count in an indictment shall in general apply to a single
transaction and shall contain in substance a statement that the
accused or defendant committed an offence therein specified."
Subsection (2) states:
"The statement referred to in subsection 11) may be
(a) in popular language without technical averments or
allegations of matters that are not essential to be proved;
(b) in the words of the enactment that describes the offence or
declares the matters charged to be an indictable offence; or
(c) in words that are sufficient to give the accused notice of
the offence with which he is charged." Subsection (3) states:
"A count shall contain sufficient detail of the circumstances of
the alleged offence to give to the accused reasonable information
with respect to the act or omission to be proved against him and
to identify the transaction referred to, but otherwise the
absence or insufficiency of details does not vitiate the count."
Section 583 sets out certain grounds that will not make an
indictment insufficient. Defence counsel has relied on R. and
Bingo Enterprises Ltd. et al 41 C.R. (3d) 291, a decision of the
Manitoba Court of Appeal and to a lesser extent, R. and Wilson 26
C.R. (3d) 8, also a decision of the Manitoba Court of Appeal. In
the two aforementioned cases, the Manitoba Court of Appeal
quashed charges virtually identical to counts one and two in the
Turmel indictment.
In Wilson the court upheld the validity of a charge virtually
identical to count number three in the Turmel indictment. With
respect to counts three and four in the matter before me, I have
found no precedents nor have I been persuaded by counsel's
argument that they are in any way deficient in law. Count four
may lack precision in wording, but this is not fatal to the count
and the Wilson case specifically holds that count number three
should not be quashed. The defence motions as it applies to count
three and four is dismissed. Count one and two, that is, the
keeping of a Common gaming house and the keeping of a common
betting house, have been the subject of judicial interpretation.
As I have previously indicated, the Manitoba Court of Appeal has
held that charges worded almost identically to counts one and two
should be quashed. In Ontario, the law with respect to these
counts is governed, in my view, by R. and Milberg, 35 C.C.C. (3d)
45, a decision of the Ontario Court of Appeal. Leave to appeal
this decision to the Supreme Court of Canada was refused on June
23rd, 1987. The Milberg case declined to follow the Bingo
Enterprises case and instead followed their previous decision in
R. and Griss and Gruber [1936] 67 C.C.C. 184. The Milberg and
Griss and Gruber cases held that informations similar to counts
one and two in the Turmel Information did fulfill the
requirements of the Criminal Code and should not be quashed. The
Milberg case dealt with keeping a common bawdy house, while the
Griss and Gruber case dealt with a keeping of a common betting
house. Robins, Justice in Appeal for the court in Milberg stated:
"The charge of keeping a common bawdy house framed in the form in
issue has long been employed in prosecutions under s.193 and its
predecessor sections. This indeed is the suggested form of charge
specified in the Appendix of Forms in Martin's Criminal Code at
page 1041. In our opinion, this form of charge has not been
affected by the Wiz decision, although its sufficiency has not
previously been the subject of judicial determination, comparable
provisions of the code have been.
For example, in R. and Griss and Gruber [1936] 67 C.C.C. 184,
this court dealt with an information charging the offence of
keeping a common betting house in the words of the section
creating the offence. The information was attacked on the ground
that it failed to disclose the offence for which it was taken.
The offence of keeping a common betting house like that of
keeping a common bawdy house can, by definition, also be
committed in a variety of ways. In upholding the information,
Middleton, Justice in Appeal on behalf of the court, said at
pages 190 and 191:
"Here the offence is charged in the precise words of s.229, which
create the indictable offence, the keeping of a disorderly house,
to wit, a gaming or betting house. The place of the offence is
given with circumstantial detail and also the time of the
offence. This, I think, permitted by the precise provisions of
the section of the code referred to, sections 225 and 227 are
merely definitions. Statements of facts and circumstances which
constitute the thing done as being a disorderly house, a common
betting house and in my view, it is not necessary that statutory
interpretation of the terms used in defining a crime should be
themselves set out in the indictment.""
His Lordship went on to state at page 191:
"In other words, the definition sections, 225, 226 and 227,
merely constitute a dictionary and fixes a meaning to the terms
used when the crime is defined. The form given for making a
charge of murder is that the accused, on a certain date at a
certain place, did murder the named individual. The definition of
murder is found in sections 259 and 260. It has never of recent
years been thought to be necessary to refer to the particular
definition of that serious crime which is intended to be invoked
at the trial."
These observations apply with equal force to the Information in
the present case in which the offence was similarly charged in
the words of the section of the Code creating the indictable
offence of keeping a common bawdy house. See also R. and France,
R. and Wong Guy, R. and Longpie. It is manifest that many
offences are capable of being committed in more ways than one
under the provisions of the Code. That fact does not of itself
render invalid a charge framed in the words declaring the matter
charged to be an offence, so long as the alleged offence is set
out in the information and sufficient detail is given to identify
the transaction or the subject of the charge, the charge will
satisfy the requirements of s.510(3). The Crown is entitled to
rely on any part or parts of the statutory definition that prove
applicable to the facts established by the evidence.
If, however, the language used to describe the alleged offence is
capable of covering diverse and unrelated acts, the charge will
fall within the principles enunciated in the Wiz decision and be
vitiated for want of sufficient detail as required by s.510(3),
but that is not this case. The charge here is easily understood
and conceptually uncomplicated. While it may be perpetrated in a
number of different ways, they cannot be said to be diverse or
unrelated and it is not necessary to refer to the particular part
of the definition of the offence that is intended to be invoked
at trial.
Robins, Justice in Appeal, goes on to state at page 50:
"We are obliged to note our respectful disagreement with the
opinion of the Manitoba Court of Appeal in R. and Bingo
Enterprises that Wiz Developments over-ruled R. and Griss and
Gruber, supra, and the line of authority to which the court
referred at page 265 of its judgment. We do not read the Wiz
decision as having this effect nor we respectfully add do we read
Wiz as casting any doubt on the earlier Supreme Court of Canada
decision in R. and MacKenzie, supra. In this latter regard, we
agree with the Saskatchewan Court of Appeal in Fisher and The
Queen [1985] 45 C.R. 13d) 191, that R. and MacKenzie, supra, has
not been overruled by Wiz."
And the Quebec Court of Appeal in R. and Billon-Rey et al [1990]
57 C.C.C. (3d) 223 in a keeping a common gaming house charge held
that informations almost identical to counts one and two of the
Turmel Information were valid and should not have been quashed by
the trial judge. The Quebec Court of Appeal followed the Ontario
Court of Appeal decision in Milberg and declined to follow the
Manitoba Court of Appeal in Bingo Enterprises case.
Since we are in Ontario and I, as a trial judge, am bound to
follow the Ontario Court of Appeal decisions in this case, R. and
Milberg and R. and Griss and Gruber. That being so, counts one
and two of the Turmel Information are proper and valid. The
Motion to Quash is dismissed.
EDELSON: Now, Your Honour, on the supplemental application for
particulars....
COURT: Counsel, I'm not going to embark on a particulars motion
now at this time. I've been sitting since nine o'clock and it'll
probably be opposed by the Crown and I'm not going to embark on
it now.
EDELSON: No, I understand we're not going to argue it, Your
Honour, and I'm not going to prevail on you to hear argument. I
just want to make the position that I've made earlier. My friend
has talked about ten boxes of material or whatever. My only
concern is that if we're stuck to bring particulars applications
under 586 at the trial and we only get particulars then, Your
Honour can imagine what difficulty that will create for the
defence and I want the record to reflect very clearly my position
at this earliest opportunity that we were seeking particulars.
Your Honour does talk about imprecision in the wording and I
think that's obviously a valid and apt comment. My position is,
Your Honour, that imprecision results in Mr. Turmel being unable
to make full answer and defence and I'd like my friend to be
aware of that early on.
COURT: Now, I would suggest you get together and see if you can
work it out without judicial intervention. If you can't, there's
nothing preventing you from bringing a motion similar to the one
you just did.
EDELSON: I know. Your Honour's not seized of it and that's...
COURT: No.
EDELSON:...quite acceptable to me.
DANDYK: If it assists, I'm of the view, at least in respect of
counts one and two, that particulars, at least on a cursory view,
are likely -- I will speak to Mr. Marin on the file. Subject to
disclosure and so on, I expect that these issues may be resolved
without judicial intervention.
COURT: Well, I hope they can be and if they can't, well, we'll be
back in court again.
EDELSON: Your Honour, the only other comment I make is that
tentatively, we have fixed a trial date of August the 12th. Now,
Mr. Marin had written a letter saying that Detective Cleary's
away on holiday and he is away on holiday.
DANDYK: As I understand it, no formal date was set on the 12th.
Counsel cleared himself for the 12th. Neither the Crown nor the
police were canvassed, so I can clearly indicate that was not
with the consent of the Crown or the officers and I can indicate
neither the investigator nor Mr. Marin are present and it will
not be trial ready by that date in any case.
COURT: What are counsel seeking?
EDELSON: Well, I suggest it simply go to the 12th as it's fixed
now, but in number five to fix a date. The Crown has had 17
months and the police have had 17 months to organize the
prosecution of this matter.
DANDYK: I don't believe I can. I was told the preliminary package
will only be available in some three weeks.
COURT: The matter is adjourned to August 12th, 8:30, court five,
to set a date for your trial.
TURMEL: Well, we have a date for the trial right now and a
hundred people are going to be seriously inconvenienced so this
officer can go on holiday and I just think that's terrible. I
mean, we have an early date. Everybody's been counting on it.
Everybody has been hungry and all of a sudden, the Crown wants to
have extra time. We just come to pick a date. I think that's
unacceptable. We had a date promised to us and it's just -- I
mean, the mere fact we're going to trial on three book-making
charges, I think, is going to put the court in disrepute. So we
can't have our trial. 0.K. When?
COURT: Just close the court.
COURT ADJOURNED
**********
19930812
ONTARIO COURT OF JUSTICE (PROVINCIAL DIVISION)
HER MAJESTY THE QUEEN
against
JOHN TURMEL
***********
ADJOURNMENT
HEARD BEFORE HIS WORSHIP JUSTICE OF THE PEACE R. SCULTHORPE
on the 12th day of August, 1993 at OTTAWA
***********
Charges: S.201(1), C.C. - Two counts
S.202(1)(c), C.C.
S.202(1)(e), C.C.
***********
APPEARANCES:
Mr. J. Langevin Counsel for the Crown
Ms. C. D'Angelo Counsel for the Defendant
Courtrom Number Five August 12, 1993
D'ANGELO: I'd ask that Mr. Edelson's name be removed from the
record at this time.
COURT: All right. We'll remove Mr. Edelson's name. Would you page
Mr. Turmel in?
COURT: Mr. Turmel, I understand that this will be a rather
lengthy trial and that a Pre-Trial is in order. I've been given a
date of September 20th, Courtroom Number Seven, as the date for
the Pre-Trial.
TURMEL: Before you do that, though, before I'm called on to plead
further, I do wish to - pursuant to section 606, plead autrefois
acquit, which is a question of pure law and I have my paperwork
ready. Could I be sent off to a Judge?
COURT: Mr. Turmel, that has to be done in another forum. You may
be able to do it on September the 20th in Number Seven Courtroom
before Judge Lennox.
TURMEL: Well, I want to do this before I plead because the Code
says so and that's why I would like to be sent off to a Judge, if
possible.
COURT: That's correct. You are not going to be going for a plea
on September 20th. It is a Pre-Trial. That will be your discovery
if you want, or your disclosure, and you can make the motion that
you want to make at that time. You are not being put over for any
type of plea on September 27th at 2p.m. in Number Seven
Courtroom. All right. You can make your motion at that time.
--
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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