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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
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]
MARIN: And I may add this, Your Honour, in the last hearing in court, it
was made clear that the Crown was not even relying on the same
section of the Code. It is not even the same offence. The offence
listed are offences of gaming and betting, but the definition
that the Crown is relying on... And this was put on the record,
as I understand it, by Mr. Dandyk at the last appearance, Your
Honour, that the Crown is relying on the definition of common
gaming house as found in section 197(a) of the Criminal Code. It
was not decided by Judge Fontana that it did not form part of his
reason for decision.[N] The common gaming house is defined as in
either/or scenario. It's either (a), which defines it: "(a) kept
for gain to which persons resort for the purpose of playing
games, or (b)..."
And in (b), it lists four ways by which a common gaming house can
be made out. And the Crown had relied previously on (b) [N] and
the Judge found there was an absence of evidence under (b). Is
that to say that the Crown is barred from prosecuting any other
case, although the Crown has evidence under (a)? In my
submission, the case law does not stand for that proposition.
I'll be getting to that in a moment.
So, it has been made clear the last time and it's under the
provision of that section and the evidence that has been adduced
by the Crown more particularly fit under (a) and the evidence has
not been gathered under (b) but gathered under (a).
So, that makes a significant difference to my friend's argument.
So, it's not the same. He keeps referring to the same
organization, the pamphlet, the weiners, but, here, we're dealing
with a different section; we're dealing with a different way to
commit the offence. Maybe it could - acquitted of one way of
committing the offence, but, there remains more than one way to
commit that offence. So that just adds to the difference in the
transaction between then and today.
I submit a number of cases that I'm bringing to Your Honour's
attention. There's the Riddle decision under tab one. In this
particular case, the accused is charged with assault and the
trial Judge dismisses the case as there is no evidence adduced by
the Crown. And one week later, there is a new Information which
is sworn and we're dealing here with the same facts and the same
matter and the Court indicates in a key decision as far as
autrefois acquit is concerned in Canada, the accused should not
be re-tried for the same matter. I refer Your Honour to the
headnote, the third line on page 366:
"On that second date the informant failed to appear. An
application by the Crown for an adjournment was refused. The
Crown then called no evidence and the trial Judge dismissed the
charge. A week later the informant swore a new identical
Information. At trial on this charge the plea of autrefois acquit
was upheld and the charge dismissed."
Now, if we take the next paragraph:
"At common law where the accused sought to rely on a prior
dismissal of a charge the proper procedure in summary conviction
matters was simply to enter a general plea of not guilty
embracing the concept of res judicata...", and so on.
But, here, the defence is advanced in the Canadian context as
being one where you have to deal with the same scenario. The
decision, Your Honour, of R. v. Petersen under tab two, again, at
page 385, the headnote, the second paragraph at page 385:
"The trial judge erred in failing to give effect to the plea of
autrefois acquit. The judgment of dismissal by the summary
conviction court, so long as it stood, was a bar to proceedings
on the same charge even though the Crown proceeded by way of
indictment on the subsequent proceedings. A plea of autrefois
acquit is available and should succeed where an accused shows
that he was placed in jeopardy on the same matter on an earlier
occasion before a court of competent jurisdiction and that there
was a disposition in his favour resulting in an acquittal or
dismissal of the charge."
So, again, it's the same matter. And this is a Supreme Court of
Canada decision at page 385. So, whether we're dealing here -
Your Honour has to decide whether, in fact, we are dealing with
the same matter. In my respectful submission, we are not.
Different way to commit the offence, different time period,
different location, different witnesses involved. It is not the
same matter,
The closest analogy I could find, Your Honour, to the case at bar
is the case of Walbourne under tab five of the casebook. The case
of Walbourne deals with a charge of breach of probation. The
accused was charged with breach of probation because he failed to
make the first installment of his restitution under the probation
order. What happens, the charge is dismissed because it is laid
outside of the limitation period. Okay? So, we have one order of
probation, one charge of breach of probation, charge dismissed
because of an error or jurisdiction. The second charge is laid,
but, this second charge, although covers the same probation
order, the same type of breach, it covers a breach for the
balance of the restitution. Now, does autrefois acquit apply?
We're dealing with the same probation order. We're dealing with
the same - you know - the same type offence that is made out. The
Court says no. And I quote, Your Honour, from three-quarters past
the beginning of the cite:
"Although the accused was acquitted of the first charge, he was
still under an obligation to comply with a second term of the
restitution condition for repayment of the balance of the money.
The fact that the language used in the second charge was
practically identical to that employed in the first one was not
in itself relevant to the validity of the second charge as it was
clear that the first charge was concerned only with the non-
payment of the first installment. The alleged violations of the
probation order were separate and distinct from each other and
could be the subject of separate charges so that the defence of
autrefois acquit had no application here. In particular, the
dismissal of the first charge was not a ruling that the accused
was absolved from payment of money but only an acquittal upon an
allegation that he had not paid the initial portion of money with
the time stipulated."
As well, Your Honour, I've provided excerpts from Salhany on
Criminal Procedure, which is instructive on both the matters of
autrefois acquit and res judicata. He says:
"The test to be applied in determining whether the two charges
are identical or substantially identical is set out in section
609 of the Criminal Code. It is provided under 609(1) that if the
matter of the other charge is the same in whole, or in part as a
later charge and that the accused might have been convicted of
all the offences on the earlier charge, assuming that all proper
amendments had been made, or could have been made, of which he
may be convicted on the later charge, the plea of autrefois
convict and autrefois acquit is applicable."
So, we don't have this here. We don't have the second - assuming
we do have the first pre-condition, we don't have the second. And
in my submission, you don't have either.
"The term "matter" here refers to offences and not to facts.
Accordingly, the true test is whether the two charges relate to
offences which are similar and not whether the facts in both
cases are similar."
So, in my respectful submission, Your Honour, this sets out
clearly the test to be applied in these circumstances, that is,
the matter is not the same and, secondly, it is not a matter
where the accused might have been convicted of all the offences
on the earlier charge. This charge that we're dealing with today
was not even in existence. And, secondly, the Crown is relying on
a different way to commit the offence.
So, it would be my respectful submission to the Court, Your
Honour, that it's apples and oranges. There's fresh evidence
dealing with different transactions, a different way to commit
the offence, at a different location and that, consequently, the
plea of autrefois acquit or autrefois convict would not apply.
To hold otherwise, in my respectful submission, would mean that
accused, such as Mr. Turmel, would have carte blanche as long as
we're dealing with the issue of gambling and betting to commit
the offence in any other fashion, in any other way and would
never be liable to prosecution. In my respectful submission, that
is not what the case stands for. It stands for abuse of
prosecution based on the same matter and that is not what we are
dealing with.
Those are my submissions on autrefois acquit and autrefois
convict.
My friend has also referred to the issue of res judicata. Res
judicata is not a special plea. It is not to be dealt with at
this stage in the proceedings. Res judicata has to be plead under
a plea of not guilty. It is a matter for the trial judge to
decide. It is not a special plea.
In autrefois acquit and autrefois convict, it has to be so clear
on the face of it. That is why it is a special plea. There is no
evidence adduced. In Salhany:
"In determining whether the second charge is identical or
substantially identical to the earlier charge, the Court may look
at the evidence, adjudication and the notes of the Judge and
official stenographer on the former trial, together with the
entire record of the proceedings."
The is not before Your Honour. How can Your Honour make that
determination to start with? Now, what is before the Court, Your
Honour has the judges' finding of the case. Well, that's
insufficient. And that just shows how they have to be so similar.
Your Honour has to be able to make that determination summarily
without hearing any evidence and that, Your Honour, is unable to,
in my respectful submission.
In dealing with res judicata, it is not a special plea. It is a
plea that is entered under the auspices of a not guilty plea. At
page 230 of the Salhany book, Your Honour, page 231, actually, of
the hand-out:
"The defence of res judicata cannot be raised as a special plea.
Rather, it must be raised under a plea of not guilty. Where it is
raised, the onus is upon the accused to satisfy the Court than in
the earlier proceedings there was a determination of a question
of fact in favor of the accused which is vital to the charge and
which operates as an estoppel against the Crown so as to bar the
later prosecution. But, he is generally required to establish
that: 1) the particular judicial decision relied upon was in fact
pronounced by a court of competent jurisdiction. 2) the judicial
decision was final. 3) the judicial decision involved a
determination of the same question as that sought to be
determined in the litigation in which estoppel is raised. 4) the
parties to the judicial decision are the same persons the
proceedings in which estoppel is now raised."
So, that's what the accused has to show on such a motion, but, it
cannot be advanced as it is advanced today, simply locked
together with the special pleas. Your Honour has to make an
evidentiary finding, and that's the finding Your Honour has to
make. No such evidence is before the Court, despite Mr. Turmel
saying, 'Well, I can tell you this and Mr. Booth can tell you
that' and so on. That is not evidence and there is no evidentiary
basis for Your Honour to make that determination today.
The final argument that is advanced in favour of the defence this
afternoon is the argument of abuse of process, prosecutorial
oppression and so on that is put to the Court this afternoon.
I have provided the decision of R. v. DeSousa with the casebook.
The reason I did this is because one of the prior applications
that I had listed for today as well, lists sections 2, 6, 7, 8,
9, 11(a), 11(d), 11(h), 12 and 15 of the Charter. And this was
presented in General Division and I wasn't there, but, I
understood the matter was simply deferred to this Court. So, the
accused was asking for a stay based on all those sections of the
Charter and he hasn't followed up with the arguments under the
Charter, but, he has, inferentially, referred to the rights of
150 people to earn a living and so on. And he's also asking the
Court to impose a stay of proceedings
And in my respectful submission, he is asking Your Honour to find
- to make a finding of prosecutorial abuse and vexatious
proceedings and so on, based on absolute - in an absolute vacuum.
It is not an argument that one bases on newspaper clippings. It's
not an argument that one can simply base on arguments. There has
to be an evidentiary foundation. That is not there. The Court in
DeSousa, made arguments. Justice Sopinka, in this Supreme Court
of Canada decision, makes arguments which, in my submission, are
analogous, or could be applied to this particular case.
At page 74 in DeSousa, at the bottom of page 74, Your Honour, at
the bottom of page 74 at line 14: "The general rule was with
respect to a talking indictment by reason of a defect in law is
that a motion to quash the indictment for a defect apparent on
the face thereof must be made before pleading. The rule is
subsuant to the provisions of section 601.1 of the Code which
requires the motion to be made before the plea and then after
only with the leave of the Court. The main purpose of the rule
and of section 601 to the extent that embodies the rule is to
ensure that defects cured (ph) by amendments or tact before
pleading, as if not cured by amendment, they may be waived by a
plea."
The bottom of page 65, paragraph - 75, Your Honour, at line 16,
page 75 at line 16: "With rare occasions that do not apply here,
a trial Judge is empowered to reserve on any application until
the end of the case. He or she is not obliged therefore to rule
on a motion to quash for invalidity of the indictment until the
end of the case after the evidence has been heard. The decision
whether to rule on the application or reserve until the end of
the case is a discretionary one to be exercised having regard to
two policy reasons. The first is that criminal proceedings should
not be fragmented by interlocutory proceedings which take on a
life of their own."
Such as this one, I may add.
"This policy is the basis of the ruling against interlocutory
appeals in criminal matters. The second, which relates to
constitutional challenges discourages adjudication of
constitutional issues without a factful foundation."
Below, after those cases, Your Honour: "Both the policies favour
dispositions and applications at the end of the case. In
exercising the discretion to which I have referred, the trial
Judge should not depart from these policies unless there is
strong reason for so doing. In some cases, the interests of
justice necessitate immediate decision, examples of such
necessitous circumstances include cases in which the trial court
itself is implicated in the constitutional violation, or where
substantial ongoing constitutional violations require immediate
attention."
And then a little - two lines below: "Apparently meritorious
charter challenge of the law under which the accused is charged
which is not dependent on facts to be listened to during the
trial, may come within this exception to the general rule."
So, Your Honour cannot draw from Mr. Turmel's submissions which
inferentially refer at length to evidence, but his submissions
are not evidence. Your Honour cannot use that submission to
conclude that the proceedings are vexatious or an abuse.
Your Honour, in my submission, has heard from Mr. Turmel and we
have heard what his position is. Now, let's see how it is
established. Let's see if the evidence establishes it. And it
would be unfair to the proceedings that Your Honour pre-judge the
issue without having the necessary evidentiary basis.
So, in summary, Your Honour, to summarize briefly with the
Crown's position, is sufficiency has been dealt with, disposed of
and the decision will be produced by the Crown and communicated
to the Court as soon as it's available. Mr. Turmel was there. I
assume he has notes of that decision, but, it has been dealt
with. Autrefois acquit doesn't apply when a charge has been
withdrawn. So, we're looking solely at gaming, the elements the
defence perpetrated in a different fashion. We're dealing with a
different time, a different location, different offence,
different subject matter, so, therefore, it would not apply.
The argument of res judicata, it's not the appropriate place to
enter that plea. It should have to be argued after a plea of not
guilty. And, finally, abuse of process, there has to be some
evidence before the Court, evidence which is lacking. He is
asking you to make that decision in a vacuum, in a void, based on
his submissions and his reference - selected reference to the
evidence and that, in my respectful submission, is insufficient
to establish what he is seeking. So, all motions that are framed
the same way as his that are before the Court should all be
dismissed for those reasons.
COURT: Mr. Marin, would you think that there is a difference in
character between the type of activities that would fall under
the heading of autrefois acquit or autrefois convict and issue
estoppel? And, in particular, if I could point out a passage that
Mr. Turmel referred to in the Rourke case, at page 1031, second
paragraph?
MARIN: If there's a difference between both concepts?
COURT: Well, in terms of the nature of the prior activity, or the
prior conduct.
MARIN: All right. Well, my understanding is that both motions are
quite different, Your Honour, if that is what you are asking. The
autrefois acquit, autrefois convict is simply that the Crown is
barred from prosecution because the subject matter entirely has
been disposed of.
COURT: It's the same thing.
MARIN: It's the same thing. Whereas, res judicata, means that
there is an issue within the prosecution of the case that has
already been decided. If I may say so, for example, the issue
that my friend is raising today of sufficiency, inferentially,
that is res judicata, if I may say so, because it has been
disposed of. A judge has already - but, it does not mean it's the
end of proceedings. It means that a matter within the
proceedings, an issue, has been resolved. So, it is a different
concept. It does not mean that the matter cannot proceed. It just
means that an important element within the process has been
decided by a court. So, it cannot be re-litigated.
If I may just draw an analogy on it before we move on, the whole
Kienapple concept is a version of the res judicata, where a
behavior and an offence has been judged and, so, the Court cannot
proceed with a charge of impaired driving and driving with over
80 milligrams of alcohol in their blood. It's not autrefois
acquit, autrefois convict, it's just that the subject - the issue
- the behavior has already been judged by the courts. So, that
the Kienapple principle would be administration of the res
judicata.
COURT: I don't think I have a great issue with respect to your
submissions concerning autrefois, but I would like to address the
issue relating to issue estoppel in Rourke. If I understand your
submissions in relation to autrefois, a distinction could be
drawn because, in a particular charge, there were different
dates, different locations, things of that sort, which would draw
a particular fact situation out of the autrefois scenario.
MARIN: That's correct.
COURT: If you look at the passage starting with, "The result..."
It talks about "...the same facts as the charges in a previous
indictment on which the accused has been tried, or form or are
part of a series of offences of the same or a similar character
as the offences charged in the previous indictment." Which would
seem to be a broader application than the arguments that you
advance with respect to autrefois.
MARIN: The difficulty I have, Your Honour, with Mr. Turmel's
argument is that how is the Court going to make that conclusion
today? Your Honour....
COURT: I don't know.
MARIN: Okay. In my submission, the Court could not, whereas
autrefois acquit autrefois convict is recognized as a special
plea, a Pre-Trial plea, that we can all stand here and show you
the record. Mr. Turmel would show you the evidence, the record,
here's the same thing, now they've re-charged me after it was
dismissed. And then Your Honour can make a finding on that
without any other evidence before the Court.
But, what he is asking you to do right now is to - if you look at
this rule: "As a general rule a judge should stay an
indictment...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 are a part of
series of offences of the same or similar character as the
offences charged in the previous indictment."
The reference here to facts should, in my respectful submission,
be of great concern to the Court, because Your Honour is asked to
look at the facts. There are no facts before the Court. There is
no evidence before the Court. Your Honour has an Information,
alleging a number of offences. Your Honour has a transcript of a
case, or a ruling where there is a dismissal and a withdrawal of
charges. But, Your Honour has no facts to make that
determination.
If we were at the end of the case and we were arguing this, then
we could refer to the facts and say, 'Well, Your Honour, in this
particular case, Your Honour has heard these facts. This is how
the offence was made out today on this Information.' And then we
could refer to the transcript of the previous charges against Mr.
Turmel and say, 'Well, this is how they differ.' We'd have some
facts to play with. There are no facts before the Court today.
So, Your Honour cannot, in my respectful submission, deal with
the substantial portion of the motion because there are no facts.
The quote relates to the character of offences. I've indicated to
the Court that the Crown is relying on a different section to
make out the offence. The elements of the offence are different.
What was a gaming house then is not a gaming house in this
provision. So, it is my submission that these are all inferences,
deductions of facts of evidence nature of the case, that you
would be called upon to make the decision on issue estoppel. And
it cannot be argued along with the special plea as indicated by
Judge Salhany in his book.
The proper time to raise the issue estoppel argument, Your
Honour, would be at the close of the Crown's case, before the
defence is asked to present it's case. Then the evidence against
the accused would be as part of the record and then you take it
from there and then you argue issue estoppel.
COURT: When you made reference to the different section numbers
under section 197 (a) and (b), to the definition of common gaming
house, could you refer to page seven, please, of Judge Fontana's
decision? It would appear to me that he makes reference to both
(a) and (b) in his ruling. Do I take it that the Crown's
assertion is that the factual basis will be different in this
particular case from that which was before Judge Fontana?
MARIN: Yes.
[JCT: This is the most important point for the Defence in the
whole trial. At this point, it appears to Judge Wright that Judge
Fontana did rule on Section (a).]
COURT: Thank you. Mr. Turmel, is there anything you would like to
add?
TURMEL: Yes. First of all, it's true that we did not argue the
sufficiency arguments. They were done. At the time we had argued
that they should specify whether they were going to alleging
section (a) or not. And the Court decided that they didn't have
to specify section (a).
Now, it's not specified in the indictment. I mean, it's nice if
he's telling us here that section (a) is the one that he has
picked, but, if you look at the indictment, it's not there. As a
matter of fact, we went through a great deal of effort and
expense to get them to tell us if it was section (a) or not and
this is the first time I hear about it being section (a). Out of
the blue, now, oh, it's section (a). Well, we did go to court
trying to ascertain what section it was, trying to say that the
indictment was badly drawn. It would make autrefois acquit
possible because you didn't specify that last time it was section
(d), now it's section (a). You wasted all our time by not
specifying. Now you want to walk in and claim, 'Oh, yeah, I guess
we should've specified originally.' Well, the point is, it's not
specified. Not on Mr. Lo's indictment. Not on my indictment.
Nowhere does it say section (a). And, yes, Your Honour, you were
correct when you pointed out that Judge Fontana did rule on
section (a) and did rule there was no evidence of section (a)
violation.
Now the Crown is alleging that they have evidence to prove
section (a), but they didn't put it in the indictment. And, you
know, sure, it's a technicality, but they were given the
opportunity to fix it. They chose not to. To fight it even. And
now they want to tell us it's section (a). Well, it's not in the
indictment. You are not supposed to be taking evidence from him
that it is evidence with respect to section (a). You are supposed
to be looking at just the indictments which are identical.
And, again, he was saying I wanted to bring evidence of things
going on. Well, no, I stayed away from evidence. I didn't talk
about sufficiency and, so, therefore, the Crown, himself, has
made the point.
If you look at the indictment, there is nothing specified. They
are absolutely identical. It's the only reason I'm here on an
autrefois acquit and an issue estoppel is they didn't specify a
difference. And when we asked them to, they refused to. And
that's the only reason we are even using these arguments, is
because it's the Crown who insisted on not specifying. Now,
they're using their specification as a defence. So they won't
specify, we go on attack to get the information, they win, they
don't have to specify. So, now we go on attack because they
didn't specify and now they specify.
So, the Crown basically wants to have it both ways, one, not have
to specify; and then two, use specification as an out. So, if you
just look at the indictments, you will note that they are badly
done. They are identical and therefore, autrefois acquit should
apply.
Now, he says as to whether or not the withdrawal of the betting
charge was done after substantive - well, you see, in the case he
mentioned, he mentioned that you have to do it, your motion to
quash before evidence is presented. Well, in my case in 1989, the
Crown did present their case. There was evidence put on the
stand. The expert witness, Mr. Durno, was on the stand. I did
face the evidence. I did face gaming house and betting house
charges in 1989. The Judge took my pleas. The Judge took evidence
and then he reserved his decision after the Crown's case on a
motion to throw out the charges on the grounds that they had no
evidence.
So, I did face all the evidence they had of betting house. The
Crown's allegation that it wasn't like Judge Fontana heard the
case, Judge Lennox said, 'Well, let's not start anything, let's
wait and see.' If you read the transcript, you will notice that I
forced the issue and we did hear evidence, therefore, I was put
in jeopardy of both the gaming and the betting and it was only
after they had lost on Fontana, they came back and said, 'Well, I
guess we're not going to argue. We'll try and withdraw.'
Now, I can only say that I faced evidence, I faced the whole
case. They closed their case - the Crown closed the case. So, how
they can now say I didn't face the case, I don't understand. I
did face the big betting house case and the gaming house case in
1989. I was in jeopardy in both, so, therefore, it should apply.
I was in jeopardy, because I did plead.
Okay. Again, the Crown has re-iterated that the time and the
place and the transactions have to be the same even though they
are immaterial. Now, this is what I consider one of the flaws of
the legal profession, is the taking into account of immaterial
things in consideration of the decisions. I presented the Carrier
case, which ruled time and place and even transaction immaterial.
I pointed out the City of Montreal v Rothman Realty Limited case
where it says time is immaterial...
COURT: You don't need to repeat.
--
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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