
www.Usenet.com
| <-- __Chronological__ --> | <-- __Thread__ --> |
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
19931111
#93-18193
ONTARIO COURT (PROVINCIAL DIVISION)
HER MAJESTY THE QUEEN
against
JOHN TURMEL
**********
MOTION FOR AUTREFOIS ACQUIT & ISSUE ESTOPPEL
HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT
on November 11, 1993 at Ottawa, Ontario.
**********
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
[continued]
I included City of Montreal v Rothman Realty Limited there. There
it is. It's the one that is sideways.
Okay. This one, I believe, is very important.
1. While each day may constitute a new infraction under the terms
of the section of the Municipal Charter, such provision could not
apply where there had been no structural change in the premises
since the accused had been previously acquitted of any violation
of the by-law.
2. The proceedings constituted an attempt to revise the judgment
previously rendered by one municipal judge by proceeding before
another judge of the same Court without following the prescribed
remedy of an appeal provided by law."
Now, I believe there is a similar case here because every - if
they are going to be tried - and, so far, you must understand
that nobody knows whether or not the Crown is saying Fontana is
wrong, or whether or not the Crown is saying 'We did Fontana
wrong.' At this stage, due to other flaws in the process, nobody
knows.
Now, if they try to allege Fontana is wrong, well, obviously,
they should've gone by way of appeal and that is why in March of
this year, when I heard that the police were looking at possibly
charging me, I basically made an application for an extension of
time to allow the Crown to appeal the acquittal of the Fontana
decision and pointed out that if they really were looking to
challenge it that was the way to go and I was willing to consent
to let them have an extension of time to have their appeal. And I
believe that in the Crown evidence later on, one will see that
that motion was made.
So, they are not supposed to be trying to re-litigate an issue
once it has been properly decided, and we believe that's what is
going on.
So, I would like to start in the very first of all, the case is
an apartment building was charged with being a rooming house and
was acquitted. A year later, the City charged the apartment
building with being a rooming house again. The lawyer, deciding
to be innovative, knowing that in the past autrefois acquit only
applied to the same time and same place, said, Well, look, since
time is immaterial, maybe autrefois acquit should still apply.
So, he made an application for autrefois acquit and at the
bottom, on the left-hand side, the last paragraph, it says:
"In answer to such argument, the city replies that the complaint
being for quite a different date and year, the plea of autrefois
acquit cannot receive any application. And the city quotes in
favor of this argument...", citing the Charter. The next
paragraph on page 373: "At first glance, this argument appears
correct." And autrefois acquit must be the same time and same
place. "As a matter of fact, when an infraction, such as the
emitting of dense smoke...is committed, each day constitutes a
new infraction and in such a case no plea of autrefois acquit can
be entertained when a different date is alleged, but indeed the
ruling must be entirely different when an acquittal has been
obtained on the essential basis of the existence or non-existence
of a right." Now, in this case, the man had a right to rent out
his apartments and not be called a rooming house.
We believe that we won the right to play symmetric Turmel-style
blackjack in that 1989 case. The Judge continues: "Applying this
above rule to the case, if it is true that no permit for a
rooming house is required for the operation of the building in
question, the date mentioned in any future complaint is
irrelevant...". Now, you would think that would apply with Judge
Fontana's decision, if not selling anything, not taking a fee,
not taking a rake-off, not excluding and not having any unfair
edges - he says it is not a gaming house - well, one would think
that that would be the essential basis of the existence of a
right to play this game. So, he says applying the date mentioned,
it's irrelevant, and it would render a plea of autrefois acquit
absolutely useless. So, in other words, the special plea of
autrefois acquit would be rendered useless in the situation where
they insist on the time being the same, though time is
irrelevant, like the case of this rooming house. "...and the
defendant company would never know any peace before the Municipal
Court..." s I haven't known much peace - "...and could be tried
every day in the year and be placed in jeopardy for the identical
offence whose merit had been judicially adjudged." Now, his
rooming house was acquitted, my gaming house was acquitted, and
whether or not it's being done at a different time, if the
structure hasn't changed of the rules of my gaming house or of
his rooming house, one would think the analogies are pretty good.
So, continuing: "It appears from the above stated considerations
that the rules laid down for a plea of autrefois acquit are far
from applying entirely in a case of infringement of a by-law of
the City of Montreal. As a matter of fact, before our Municipal
Court, many cases on by-law infringement, besides their penal
aspect, present a marked civil outlook and call it autrefois
acquit or res judicata, and it would be illegal and against the
public order to attempt to revise the judgment rendered by one
municipal judge before another judge of the same Court, thus
making an appeal without following the prescribed remedy set by
law."
Now, I believe that's what has gone on here. I believe we have
the Crown, who are trying to re-try the same issue. Frankly, it
will be shown it is the same issue because there was a statement
of agreed facts in 1989 and even though such a statement hasn't
been determined in these cases yet - you know hen we look at
everything the Crown has in their ten boxes of evidence and their
hundred witnesses, you are going to see that it's all been agreed
to already in 1989 without any need for all this work, and,
basically, that the cases are analogous. This is a question of
whether the rules of a game are in violation of the law and where
that game is being held and when that game is being held is
totally immaterial to the rules.
So, the last paragraph - second-last, the Judge says:
"Notwithstanding the fact that a judgment which has finally
decided the issue when the basis of the existence or non-
existence of a right has been pleaded as an exception..." as we
are doing - "...the city is still allowed to meet such a plea by
proving that subsequent modifications or changes have created a
new status preventing the judgment so alleged from receiving
application."
Now, I would say if the Crown has some sort of modifications they
allege we've done, some sort of modifications that do push this
into the realm of a gaming house, they should have brought it
out. And especially in the case of Mr. Lo, who is sitting here
knowing that all he did was play the same set of rules in both
places, and he is on trial again. Now, had the Crown made some
sort of allegation or some sort of specification about what the
structural changes had been, maybe it wouldn't apply, autrefois
acquit, for Mr. Lo at this stage. But, since the rules of the
game, the structure were identical and there doesn't seem to be
any issue that they were not identical, I believe that the
autrefois acquit, if it applied in City of Montreal v Rothman
Realty Limited, should apply to us. So, in the last sentence, the
Judge says:
"In the present case it was admitted that no structural changes
had occurred since the last judgment and consequently the Court
upholds the plea of autrefois acquit...".
So, at this stage - you know - if - when the Crown gets up, if
they wish to allege that there have been structural changes, it
will be a whole new ballgame. Then I would probably grant
autrefois acquit may not apply. But, considering that after four
months we have an absolute dearth of information about what
structural changes had been alleged to have been different, we're
now faced with what I believe is a perfect analogy of why
autrefois acquit should apply and I only have to throw in my last
perfect example, because every time I have spoken to lawyers and
I've said - and they've all said, 'No, you shouldn't try
autrefois acquit', I've always given them the example of Wayne's
Weiners, which is an example of a man who has a little weiner
stand, Wayne's Wonderful Weiners, doing a great business. One day
the Mayor comes along, buys a couple, gets indigestion and busts
him for having too much fat in his weiners. Now, he waits six
months, he goes broke, his wagon is impounded, he finally gets to
trial, he's got an affidavit from his butcher saying, hey, only
48 per cent fat and he's got an okay from Consumer and Corporate
Affairs saying, hey, it was only 48 per cent fat and his receipt
is acquitted. So, after a while, he gets back in business, he's
going again. The Mayor comes by again, has a couple of dogs, gets
indigestion and busts him again. Now, I've asked every lawyer
I've ever met, I said, "What type of legal recourse are you going
to tell me that Wayne can use to abort these charges, when he
knows he's going to win because the essence of the issue has
already been solved?"
He's going to walk in with the butcher's affidavit again,
Consumer and Corporate Affairs registration of his formula and
he's going to be acquitted again. So, I say, "How can the man
abort this thing without having to wait for another useless eight
month delay?" And all I get from every lawyer is, "There's no
way." So, I say, well, maybe this lawyer in Montreal wasn't so
dumb to think autrefois acquit should be extended to cover those
cases where nothing can help. And, so, I say the analogy with
Wayne's Weiners is identical to ours. You know, between us, we
have 150 employees out of work, who had jobs, who were paying
taxes, who were a credible alternative to what the government
proposes, to what the government is going to go bankrupt on, and
after a year and a half of quiet operation, I think we quite
proved that this is the way it's going to have to go, if you want
it to be run cleanly in small towns. And, so, on that basis, we
want to throw in the argument that autrefois acquit happens to be
the only special plea which can eliminate - it's the only special
plea, okay. We don't want to have to wait eight ruinous months of
delay and therefore, the only plea, which is a special plea,
which can be made before trials and Pre-Trials is autrefois
acquit and on the basis that Rothmans found that when time is
immaterial, autrefois acquit can still apply. And on the basis of
Carrier when he found that not only would the time and the place
and even the victim be different, since they are immaterial to
the essence of the question, the validity of the pamphlet,
similarly the validity of the formula, the recipe, similarly the
validity of the rules structure of our game, autrefois acquit has
to be the absolute perfect answer to solve our problems, and it's
our only answer. There is no other way for Wayne not to suffer
another ruinous eight months wait before he gets his weiner wagon
back and he wins. And I'm saying on the basis that the Crown has
not alleged, has not indicated and has not written down any
structural changes which have been alleged to have been
infractions against the Code, on that basis, we would make the
argument that in Mr. Lo's case, autrefois acquit should certainly
apply. He was already acquitted of playing this game and he has
now been charged with playing exactly the same game.
In the case of myself, I've already been acquitted of giving Mr.
Lo this fair game and I've now been again charged with giving
others this fair game, even though he wasn't charged. It just so
happens in 1989, Judge Fontana could look at it from the found-
in's point of view and conclude, everybody got a fair game,
therefore, Lennox had to conclude therefore, John Turmel didn't
run a unfair game. At the Topaz raid, they didn't charge any
found-ins. Now, they're going to be able to allege John Turmel
made money without my being able to say, 'Yeah, but a Judge said
all the found-ins got a fair game.' They've eliminated the proof
that I had available to me in 1989 by not charging any found-ins,
but, fortunately, good luck, they went and charged another
perfect clone of the Turmel-style rules with a found-in now, who
happened to be in 1989, a perfect autrefois acquit. So, I believe
that it is an absolute injustice that Mr. Lo should be in this
courtroom. Mr. Lo is a professional, has a degree in science, a
druggist, and I think him being dragged through the courts like
this is quite a shame, especially when it happens to be on
exactly the same charges on exactly the same games.
So, now, that, I believe, are the submissions with respect to the
plea of autrefois acquit made by Mr. Lo and myself. Mr. Booth
can't use autrefois acquit because he was formally acquitted of
found-in. Now, he has been charged with keeper, but, for myself
and Mr. Lo, we would contend that autrefois acquit is the most
just way, unless, of course, the Crown wishes to allege a
structural change in the rules of the game. Though, the rules
posted on the walls didn't change. Would we be so stupid as to
take rules that Judge Fontana had already accorded legal status
to and change them? So, on that basis, those are the arguments
for Mr. Lo and myself on the autrefois acquit. Now, I'm just
wondering, before we get onto the question of issue estoppel or
finding the prosecutorial abuse of process, would we - would the
Crown - should the Crown respond now on autrefois acquit, or,
should I just throw everything in and he handle everything after?
Okay.
COURT: You're on a roll.
TURMEL: I'm glad you think so. Okay. Now, on the case of issue
estoppel now, I would like to go into the Jewitt case, which
should be - oh, I did include the Judge Bonin decision which was
the decision out of Quebec where I was acquitted of running a
betting house. That will be coming up later, though. I think I
have one more, the Wriqht case. It's the last one. So, after the
- there is a sideways judgment with some french stuff, right
after that. Right after this, is the next one. The french stuff
is Judge Bonin and staying away from French can only help us.
They only have one word for "win" and "gain" in french, "gain".
So, it was very difficult for the Judge to distinguish between
the two. And that would account for his reasons.
There was one other one, just before Jewitt. The one just before
Jewitt is called Wright. This one here. Okay. You yellowed in the
same paragraph I did. It must've worried you. Okay. It says:
"Apart from the special pleas of autrefois acquit and autrefois
convict in which cases the Crown looks only at the offences
charged in the compared counts.." - so, there is no evidence
here - "...the defence of res judicata, or issue estoppel,
applies in criminal cases and when that defence is being
considered the area of exploration is greater and an accused may
show that the same element was decided in his favor in previous
criminal proceedings which is in issue on a subsequent trial by
reference to the course of the previous proceedings..."
Now, down - continue just before the cases are set out at the
bottom of that page: "In light of the course of the previous
conspiracy trials, and the facts either admitted or established
by evidence at such trials, the combined effect of the acquittal
in one case and the conviction in the other created an estoppel
again the Crown with respect to the charges for the substantive
offences...", And the use the word "substantive", again.
So, they are talking substantial stuff. If you turn the page,
page 338, one, say, two paragraphs where it says, "The doctrine
is different...".... "The doctrine is different from the Pleas of
autrefois acquit and autrefois convict. Autrefois acquit applies
where there accused has been previously acquitted of the same
offence of which the accused is subsequently charged. Whether it
applies where the offence charged is not the same but the crime
committed is essentially the same, is not so clear..." to this
Judge. And, finally, on page 341, if you can turn over to page
341 - okay - actually, 340, second-last paragraph, four lines in,
one, two, three, four lines in. It says: "...that if the evidence
adduced in the trials is the se substantially, then it is the
duty of the Judge to tell the jury that they should not find the
accused guilty.
"The Courts should abhor inconsistent verdicts." Up at the top of
the next page, 341, in the same text: "As a general rule a judge
should stay an indictment...", and, of course, we're asking for
that in the last section of our motion, "...when he is satisfied
that the charges therein are founded on the same facts as the
charges in the previous indictment on which the accused has been
tried, or form or are a part of a series of offences...", and,
this is the only time we hear about part of a series, "...of the
same or a similar character as the offences charged in the
previous indictment." Now, we shoot down to the next paragraph:
"From these authorities, it is evidence that apart from the pleas
of autrefois acquit and autrefois convict, the principle of res
judicata and the doctrine of issue estoppel apply in a criminal
case where there are inconsistent verdicts or where...", skip a
line, "...the same point was determined in favor of a prisoner in
a previous criminal trial which is brought in issue on a second
criminal trial...". Now, that is what is so frustrating about
these indictments here. We don't know what the Crown is alleging
we did wrong. And that also allows us now to come before you on
an autrefois acquit and say, 'Hey, had they said in 1989 that you
were charged with section (b)(4) of the game and definitions and
this year, section (a) or (b)(1), we couldn't come in and say
they are identical charges.' But, because they chose to be
imprecise, we can come in and say they are identical charges.
They're mere imprecision makes them identical. So, this thing,
whether or not the game we were playing was a gaming house, was
previously determined and, therefore, to avoid that contradictory
decision, is the reason autrefois acquit should apply. Now, we
skip over to the next one, which is the Jewitt case. All right.
And if you look at the bottom of the first column where it says,
"Held. The appeal should be allowed." It says: "In a criminal
case, a trial court judge has residual discretion to stay
proceedings where compelling an accused to stand trial would
violate those fundamental principles of justice which underlie
the community's sense of fair play and decency and to prevent the
abuse of a court's process through oppressive or vexatious
proceedings. Such power, however, can be exercised only in the
clearest of cases."
Now, in 1989, there were six of us in the room. So, it's not as
if the community were very upset or the sense of fair play were
very besmirched, when they really weren't aware of what was going
on in our little drama, but, I mean at Topaz, you had almost
5,000 people come through the doors. And you have 5,000 people
out there who know they all got a chance to be the bank, who know
there were no sales, who know there was no fee, no exclusion, no
rake-off and they had the same chance as we did. So, I think
considering there are, at least, 5,000 people, not counting the
hundreds of thousands who read the newspaper articles, big front
page newspaper articles about how we were doing it. I mean, if
you read these newspapers, many people could learn about gambling
and how the gambling laws worked, but, I would say at this stage,
many people out there think that there's been a pressure of
prosecution here.
Most people were aware when we were found not guilty and they
were also aware of why. So, that this is a case where I believe
that community sense of fair play has been flouted and I would
suggest that many people out there think this is an abuse of
process. This is a vexatious prosecution. What this boils down
to is the fact that the Judge has the power to do a stay.
Now, if you turn to page 138 in the very last paragraph, first
column, where it says, "Kerwin, C.J. stated..." and you go down
one, two, three, four, five lines of that page, 138, of that
decision and it says: "...it was not a judgment on procedural
grounds owing to a defect in the indictment and therefore if the
accused were charged subsequently...they could plead autrefois
acquit. It was a decision on a question of law alone and being a
judgment or verdict of committal was appealable...".
Now, in our case, because Judge Fontana found a total absence of
evidence, that was judged to be a question of law, the acquittal.
The acquittal was not a question of fact whatsoever. He judged -
sorry - Fontana judged it was a total lack of absence of evidence
which made it a question of law.
So, again, this is another question of law and we have here, what
I believe, is an objection to a question of law and that is why
the Crown should have gone by way of appeal. Now, if you go to
the next case, that's the Boross case and that's on page 484, the
next in line. Page 484, second-last paragraph, where it says: "On
appeal wide challenges to the conviction were raised. As well as
the question of whether Boross's recantation extinguished any
prior intent to mislead, it was urged that the prosecution should
now be judicially stayed as an abuse of the court's processes;
that the issue prosecuted was answerable by the defence of issue
estoppel, and lastly, that the conviction contravened section
11... dealing with repetitive prosecutions." Now, I believe
that's what we have here, is these repetitive prosecutions. If we
turn the page now, to page 487, where it says, "Issue Estoppel",
in the middle of the page about, down a little: "It would seem
that a plea...", Now, these are all tied together. We're arguing
abuse of process. We think that when this is over, someone should
be doing time, a couple of days anyway, on a hard - an issue a
process, issue estoppel, autrefois acquit are all inter-
connected. They have their roots in each other basically. It says
here:
"It would seem that a plea of abuse of process in response to a
criminal prosecution will be more viable - at least will receive
better audience..." - I hope - "...- when grafted to some other
legally advanceable defence or answer. In Amato, supra, it was
joined to entrapment; in Tracey and R. v. Gordon, [1980] 3 W.W.R
655, it was advanced in conjunction with res judicata."
Well, that's what we're doing. We're going to be advancing abuse
of process in conjunction with autrefois acquit. I mean,
obviously, if we shouldn't have been charged and they have
nothing new, there has been an abuse of the process that went on
here. A hundred and fifty people did have their rights to
employment violated and something should be done.
And that's the Boross case where it basically does point out that
there is a connection between abuse of process being linked and
I'm just pointing out they did mention one of the things it could
be linked to is what we are, in particular, pushing.
If we go on to the next case, now, which is Grdic a little small
text, onto the second page, third column, third paragraph, where
it says, "The First Limitation". "If to prove the allegation the
Crown is merely tendering the same evidence as that tendered
previously, then issue estoppel will survive the attack because
the Crown's allegation is, in disguise, but a re-litigation of
the issue as litigated previously, or, to use the words of DeGrey
C.J., an attempt "to impeach from within". Indeed another judge,
or conceivably the same judge, hearing the subsequent perjury
charge is invited to reconsider the same evidence and conclude
differently. This can only be done through the appeal process
finding reversible error resulting in the ordering of a new trial
before a different judge." So, again, there's another argument
that these things should not be done here with a new process, but
should have been appealed and should've been appealed late if it
was that important to the Crown, especially when I consented to
it.
So, another Judge is being asked to conclude differently on the
same structured house rules and I would hope that the chances of
him concluding differently are zero, when I consider Judge
Fontana's ruling to be very clear and enlightening. Okay. The
next case is the Keyowski case, another abuse of process over
multiplicity of proceedings. This just establishes that the stay
of proceedings is a remedy for abuse of process. It just
basically points out it was established in Jewitt that you have
the power to stay the proceedings if you find they are in an
abuse of process.
Now, the next one is the Lennox case where he says, clear enough:
"COURT: Well, if you were to adopt the submissions made on the
previous trial..." his is to the Crown- "...I would adopt the
Reasons of Judge Fontana...". Another paragraph downwards, it
says:
"COURT: No. I'm being somewhat facetious. I would have
difficulty, as I indicated earlier, disagreeing with Judge
Fontana, simply on the basis of comedy and I can appreciate you
may wish to preserve certain rights, but, you would have to be
very persuasive to convince me that I should decide otherwise."
If we now turn to page three, bottom, last two lines:
"MR. WARD: If I understand the decision, if the finding on the
found-ins trial was that there was no gaming house, then there
cannot be any keepers either, as I see it.
"COURT: I would have difficulty, because of that finding, in
rendering what would essentially be a contradictory verdict on
Miss Cote, there is no material difference in the facts which I
heard...? "MS. COTE: I don't believe so, Your Honour."
So, he said he proposes to follow the ruling of Judge Fontana.
Page five, at the bottom there, it does point out the betting
house charge was dismissed by Fontana, fourth line up. And if you
turn to page six, now, two, four, six lines down - five lines
down, it says: "I think my friend was intending to withdraw that
charge."
So, that is when the Crown, at that point, withdrew the betting
house charge against me, but, since I was put in jeopardy, I do
believe that autrefois acquit should therefore apply. And,
finally, at the very bottom of page seven, where he says: "I am
aware of the decision of Judge Fontana and of its result. In my
view, it would be an error on my part at this point in time to
consider delivering a contradictory verdict on what amounts to an
argument at law, that being a complete absence of evidence."
Now, I mean, that's pretty rare, you get the Crown to walk into a
case with an absolute total absence of evidence, then and now,
and, so, again, I think that would be another reason for abuse of
process. If they had had something new - you know - something
legitimate, well, perhaps, we would consider that as being a
difference, but, I have yet to be aware of any structural
differences and they haven't made me aware.
So, now, we want to go over to Rourke, another one that is saying
that the Court does have the power to stay an abuse:
"Every court having criminal jurisdiction has the power to stay
proceedings which are an abuse of process or oppressive and
vexatious."
So, we're just establishing I have a right to do that. it says:
"So, it is here. In a broad sense, pleas of autrefois convict and
acquit, and of res judicata and issue estoppel may be said to be
aspects of abuse of process... First, a general power, taking
various specific forms, to prevent unfairness to the accused has
always been a part of the English criminal law and I shall
illustrate this with special reference to the framing of
indictments. Secondly, if the power of the prosecutor to spread
his case over any number of indictments was unrestrained, there
could be grave injustice to defendants. Thirdly, a controlling
power of this character is well established in the civil law. His
conclusion from his examinations of those three matters was
stated in these words:
The result of this will, I think, be as follows: As a general
rule a judge should stay an indictment (that is, order that it
remain on the file not to be proceeded with? when he is satisfied
that the charges therein are founded on the same facts as the
charges in a previous indictment on which the accused has been
tried, or form or a part of a series of offences of the same or a
similar character as the offences charged in the previous
indictment."
And, of course, of the same or similar character. So, nowhere out
there do we have to be talking about it being identical offences
for the abuse of process to apply. And that's the end of that
one.
Page 317, in Young; 317, second paragraph, last five lines. It
says:
"The principles or standards of fairness essential to the
attainment of fundamental justice are in no sense static, and
will continue as they have in the past to evolve and develop in
response to society's changing perception of what is arbitrary,
unfair or unjust." So, when you consider how many people are
aware of just what went on at my gaming establishment, I think
that this applies.
--
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
| <-- __Chronological__ --> | <-- __Thread__ --> |