TURMEL:

#9 Robin Hood Raid on Casino Turmel Trial Transcript

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]

TURMEL: Okay. But, I mean, he just got up and said, 'I disagree 
with these cases. They're not.' So, I'm saying that if it didn't 
get through, I was pointing out that these cases I presented were 
arguments that when time and place are immaterial, they should be 
treated thusly.

Now, he said it wasn't the same pamphlet. And it wasn't the same 
weiner, the same recipe. It wasn't the same game, the same set of 
rules. So, no matter how you look at it, those statements of the 
Crown were wrong. It was the same pamphlet. Physically not the 
same pamphlet, but it was the same words. Would we grant that it 
was the same words, if not the same pamphlet. So, the fact that 
what he thought he was arguing were points for him, I thought 
were actually points for me. It was the same set of words, though 
a different piece of paper, and it was the same formula for a 
weiner and it was the same game and house rules.

Now, again, I don't see any evidence here that the Crown is 
relying only on section (a) and I do see evidence in the Fontana 
decision that he did consider section (a) and did dismiss the 
charges on section (a). He considered all five sections. He went 
over them one at a time and dismissed them all. So, I don't think 
the Crown has any right to say Fontana did not consider the 
section (a) ramifications.

He found a total absence of evidence under the (b) sections 
correctly and the (a) section. If you re-read his decision you 
will see he did.

Okay. Now, he's looking for fresh evidence of different 
transactions. He says he has fresh evidence of different 
transactions. well, again, this should've been put into the 
indictment so there would be a difference for you to look at. 
Right now, you have to take his word for it. You know the 
indictments are absolutely identical and you now have to take his 
word for it, that this time it's section (a), last time it was 
(b)(4), when, actually, I think we've pointed out last time it 
was all five. Fontana did all five and now they're saying that 
even though Fontana ruled on five, the fact we're going to 
restrict ourselves to just section (a) makes a difference.

Well, it doesn't. He dismissed on section (a) as well. All 
they're doing is limiting their options to one, that Fontana 
refused, and he refused them all. That's the beauty of his 
decision for us.

I don't believe I ever argued res judicata. I think I admitted 
that it has to be after, not during the trial. I just pointed out 
that res judicata was intrincally linked with issue estoppel and 
autrefois acquit and abuse of process. I've read a few quotes on 
that basis, but, I do not allege it should be used at this point.

And I didn't raise the sufficiency, one, because that had already 
been settled, wrongly, I believe, but that can be done on appeal.

And as for the proper time to raise the issue estoppel at the end 
of the Crown's case, well, again, we're back to the problem, how 
does Wayne get his weiner wagon back if the formula is legal and 
he didn't do anything wrong? How do I get my equipment and my 
gaming casino back if the formula I used for my game is correct? 
And issue estoppel, if it were placed at the point in time when 
the Crown says it should be argued, I believe would lead, like 
Judge Lachapelle said in the Rothman case, the defendant opened 
to being charged repeatedly on exactly the same set of facts.

So, I think given the fact that there is no evidence before you, 
this is a question of pure law and the fact that the Crown 
Attorney stated its section (a) that he wants to rely on, the 
fact that Judge Fontana clearly defined and determined the issue 
in section (a), I think should be a bar to future prosecution on 
section (a), if that's the only one they're talking about. And 
with no specifications, I don't understand how the Crown can 
think that section (a) is going to save them. In this case, 
Fontana considered all five ways; cleared us of all five ways 
down and think that considering that the population were well 
aware of exactly how we were doing it and the Crown were, as 
well, well aware of how we were doing it, I think that we do have 
an abuse of process here lodged (ph) into all these autrefois 
acquit, issue estoppel and res judicata considerations. So, I 
hope Your Honour can find some way to allow us to get back to 
playing this game we were formally acquitted of playing without 
any undue delay. Thank you.

COURT: Mr. Turmel, you wish to enter a plea of autrefois acquit?

TURMEL: Yes, I do.

COURT: My understanding is that in accordance with section 606 of 
the Criminal Code, you'll have to be arraigned and called upon to 
plead. Do you understand, Mr. Marin?

MARIN: I hadn't really thought of the mechanics, Your Honour, 
but, certainly, that is what section 606(1) seems to suggest. If 
you could arraign Mr. Turmel, please. 

TURMEL: Now, is this seizing you as my trial judge by the way?

COURT: I'm afraid so.

TURMEL: I'm just wondering how that jives with the Quebec case 
where they asked me how I pleaded. I said autrefois acquit. The 
judge disposed of it, picked a date and then sent me off for 
trial to someone else. You think they did it wrong over there and 
we're going to do it right over here, or, could that be a good 
precedent over there? Because, do you really necessarily want to 
be tied down with all of these?

COURT: I won't be able to deal with all three. I'm assuming that 
the argument and the decision may be of assistance to both the 
Crown and the defence in respect of all three and that is why we 
have heard the arguments together, but, I will not be able to 
deal with the trial, obviously, of all three, if there is a 
trial. 

TURMEL: So you have to arraign me right now. 

COURT: If your argument is successful and I can tell you, I am 
not going to decide today, but, if the argument is successful, 
then, in your case, subject to an appeal by the Crown, there will 
not be a trial. If it is not successful, then we will proceed to 
trial. So, if you wish to advance those special pleas, then, it 
is my understanding that you have to be arraigned. 

TURMEL: And you have to be the seized Judge. 

COURT: Otherwise, I can't take the plea. 

TURMEL: Okay. Because I remember when I read the autrefois acquit 
section, it did not say the trial Judge, it just said the Judge. 
And that is why in Quebec we just went up, the lady heard it, and 
said no and then off to another Judge.

Now, whether or not the indication of the plea is what they 
called the pleading, the autrefois acquit plea was heard by one 
Judge and it was not my trial Judge. So, unless that was in error 
or a precedent. I'd like them to have their questions answered, 
especially Mr. Lo, with his clean found-ins, but it shouldn't 
mean you're necessarily tied down with all our trials.

COURT: I don't think I can deal with them all. There are 
different types of charges. They are not on the same 
Informations.

TURMEL: Okay. Well, I just want to make sure there is no other 
way out of here before actually - not that I do not want you as 
my Judge, I just meant to say I like to have a precedent knowing 
that the poor guy who gets stuck with these things if it ever 
happens again isn't nailed with the case too. But, "...an accused 
who is called on to plead, may..." - okay. You may as well call 
on me to plead.

COURT: Arraign Mr. Turmel.

CLERK OF COURT: Yes, Your Honour. John Turmel, you are charged 
that [repeats indictment] 

COURT:  As far as the elections, Mr. Marin, are you aware of...?

MARIN: It's a straight indictable election with absolute 
jurisdiction to this Court.

CLERK OF COURT: Jurisdiction, okay. And how do you plead to these 
four charges, guilty or not...?

TURMEL: Autrefois acquit.

COURT: As I indicated I intended to do, I am going to take some 
time to read again the materials and consider the argument. All 
right, then. The matters for Mr. Turmel will go over to November 
24th at nine o'clock in Number Four Court. What would you like to 
do, gentlemen?

TURMEL: They will have to wait for maybe we can just leave the 
motions on the books and they can kick them in at some other 
point, maybe?

COURT: All right. would you like to be put over to a day after 
Mr. Turmel, or a couple of days afterwards? Mr. Lo and Mr. Booth, 
it would appear that there is a            against
                     JOHN TURMEL
                     **********
                  REASONS FOR DECISION
     HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT
      on November 26, 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

COURT: At the commencement of the trial for Mr. Turmel, a number 
of arguments were advanced on behalf of Mr. Turmel who represents 
himself in these proceedings. Mr. Turmel argued autrefois acquit, 
res judicata and issue estoppel. At the conclusion of the 
arguments which were advanced on behalf of both Mr. Turmel and on 
behalf of the Crown, the Court expressed that, perhaps, the 
argument or plea of autrefois acquit or convict could only be 
advanced procedurally on the accused being arraigned and a plea 
being taken. 

It is likely the Court erred in not raising the issue at the 
outset of the proceedings, however, the matter was considered by 
Mr. Turmel and a plea of autrefois acquit was entered.

This would appear to be the course as set out pursuant to section 
606 of the Code, As well, it would appear that there is some 
authority for the argument of issue estoppel being raised as well 
during a trial.

According to the Criminal Procedure, Canadian Law and Practice, 
Volume Two, Atrins, Burns and Taylor, the authors indicate:

"The onus of establishing the defence is on the accused. On the 
pivotal question of wheth following which Mr. 
Turmel was arraignment and a plea was taken. While the Court, 
therefore, may have been in error in not having Mr. Turmel 
arraigned at an earlier time, I do not feel that there has been 
any prejudice as a result to either the Crown or the defence.

Mr. Turmel argues, therefore, firstly, the issue of autrefois 
acquit and brings to my attention the decision of my brother 
Judge Fontana in David Booth, a decision which was rendered at 
Ottawa on the 3rd of April, 1989, in respect to a charge contrary 
to section 185(2)(a). Mr. Turmel argues that the issues raised in 
that case as to the ruling by Judge Fontana as to the definition 
of a gaming or a betting house are the same as the charges before 
me. Mr. Turmel appeared as a witness in that matter, according to 
the decision, and he argues that, as I have indicated, the issues 
are the same.

He further draws the Court's attention to a transcript of an 
unreported decision before by brother Judge Lennox in R. v. John 
Turmel and Ray Turmel, which decision was given, again, in 
Ottawas results. In my view, it would be an error on 
my part at this point, to consider delivering a contradictory 
verdict on what amounts to an argument at law, that being a 
complete absence of evidence. In those circumstances, as I have 
indicated to counsel who are content to make no further 
submissions, with the exception of Mr. John Turmel, I propose 
simply to adopt the Reasons for the purposes of this trial of 
Judge Fontana and the result."

Following His Honour Judge Lennox's ruling, the Crown then 
withdrew charges in relation to a betting house.

Mr. Turmel, in his submissions, relies, as well, on the decision 
of R. v. Wriqht, a decision of the Ontario Court of Appeal, 1965, 
Volume 2, 0.R., at page 337. In this decision, the Court, in a 
decision which was rendered by the Chief Judge, deals with the 
issue of issue estoppel. He considered the matter at page 338:

"The doctrine is different from the pleas of autrefois acquit and 
autrefois convict. Autrefois acquit applies where the 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. From these authorities, it 
is evident 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 it appears by the record of 
itself or explained by proper evidence, that the point was 
determined in favor of a prisoner in a previous criminal trial 
which is brought in issue on a second criminal trial of the same 
prisoner."

Mr. Turmel made further reference to the decision of the Supreme 
Court of Canada in Jewitt, reported 1985, 2 S.C.R., page 128, 
which I take for the proposition, that where there is, as a 
result of abuse of process, the Court has entered a stay of 
proceedings, that will amount as to a final determination which 
would sustain a plea of autrefois and would amount to an 
acquittal, only for the purposes of enabling an appeal by the 
Crown.

The Court was also referred to a decision of the Ontario Court of 
Appeal in Boross, 12 C.C.C., (3rd), page 480, which also stands 
for the proposition that' the argument advanced to the issue 
estoppel may be combined with an abuse of process plea. In that 
decision, the Court indicated here that the defence that is 
offered is essentially that of issue estoppel with abuse of 
process in support. I say so because the Crown's position appears 
to be that the prosecution for perjury is no more than a 
colourable attempt by the Crown to re-try the very issues in the 
shoplifting in order to gain a more substantial penalty.

The Crown then argues that for autrefois acquit to apply, the 
circumstances must be identical and that the matters before the 
Court involving Mr. Turmel have different dates, different 
locations, that, essentially, these matters are completely 
different occurrences. The Crown further contends that autrefois 
acquit or autrefois convict are not applicable where the accused 
has not previously been in jeopardy.

And in support of this contention, relies upon authorities which 
touch upon the issue of prior jeopardy, in particular, the 
Supreme Court of Canada decision in Peterson, reported at 69 
C.C.C., (2nd), at page 385, where the decision of the Court was 
as follows:

"In Riddle, the Crown's case was dismissed because the Crown, 
despite a refusal of an adjournment and the Court's direction 
that the trial proceed, declined to call evidence. There was, 
accordingly, no case for the accused to meet and the acquittal 
resulted."

I do not consider that Dickson, J., imposed by those words, a 
requirement that some direct invitation must be issued to the 
Crown to call evidence before it could be said that the issue had 
been joined and the accused placed in jeopardy. The authorities 
he relied upon in his decision support the proposition that once 
a plea is entered before a court of competent jurisdiction, the 
accused is in jeopardy, and this quotation is from page 392.

Mr. Turmel cites and relies heavily upon the decision in 
Carriere, a decision of Mr. Justice Drew of the Quebec King's 
Bench, 104 C.C.C., page 75, which indicates, in short, the 
charges brought in the first place against the accused and the 
present charge are substantially the same. Fundamentally, what 
the accused is charged is with having distributed a pamphlet. He 
was found not guilty the first time, and although he is 
prosecuted in different terms, it is the same act with which he 
is charged. And this is a quote from page 85 of that decision. 
The Court, in Carriere, evidently, therefore, had evidence to 
establish that it was the same pamphlet.

Here, it would appear that there are, indeed, different places 
and times. And although Mr. Turmel contends in his arguments that 
the actions, the process or the structure, as he describes it, 
are the same, there is simply no evidence to that effect before 
the Court, other than argument and submissions. I have concluded, 
therefore, in the absence of any evidence, the analogy is simply 
not applicable. I have also come to the conclusion that the plea 
of autrefois acquit is not applicab to. It would further appear 
that the special plea would not be applicable in respect to the 
betting house charges, as these were withdrawn, apparently 
without any plea having been taken. 

And in this view, I rely upon and follow the decision of 
Peterson, supra. However, in my view, the plea would only and 
could only be appropriate with respect to any of the charges, if 
those charges were shown to be the same offences or substantially 
the same offences.

In the case at hand, it would appear that the offences are not 
the same in respect of date, time, location and so forth. And 
there is simply no evidence with respect to the details or 
circumstances in which the offences are alleged, and, therefore, 
with the greatest of respect, the plea of autrefois does not 
succeed.

With respect to the defence of res judicata, which was also 
raised, and issue estoppel, it should be noted that while the 
plea of autrefois acquit is specifically provided for in the 
Criminal Code, res judicata and issue estoppel [N] are common-law 
pleas or defences. Res judige Borrens in R. v. Nichols, 1984, 
17 C.C.C., (3rd), at page 556, the Court stated: "The principle 
of issue estoppel bars re-litigation between the same parties if 
issues actually determined at a previous trial." It means that 
when an issue of ultimate fact has once been determined by a 
valid and final judgment, that issue cannot be litigated between 
the same parties in any future law suit.

The difficulty is that the Court has heard no details as to the 
nature of the allegations and, therefore' the issues in the 
charges before this Court, no evidence has been called with 
respect of this issue, as to the applications that were brought 
prior to the hearing of evidence. 

No affidavit materials were provided and there is no agreed 
statement of facts presented to this Court. I am therefore left 
in a position of having to decide the issues of res judicata and 
issue estoppel in a vacuum. The onus is upon the applicant, in 
this case, Mr. Turmel' to establish, as stipulated in the Wright 
decision by proper evidence that the same point was determinerial. Thank you.  
**********

19931213 
#93-18193
        ONTARIO COURT (PROVINCIAL DIVISION)               
               HER MAJESTY THE QUEEN
                      against
                    JOHN TURMEL
                    **********
                     PRETRIAL
    HELD BEFORE THE HONOURABLE JUDGE B. LENNOX  
    on December 13th, 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

COURT: Now, Mr. Turmel, my understanding of the proceeding is we 
are simply going to try to estimate the length of time to be 
taken for your trial.

TURMEL: Yes.

COURT: And, sir, are you going to be represented by counsel at 
the trial?

TURMEL: Perhaps. At this stage I'm just going to continue myself. 
If I have to before the trial, I have an attorney in mind who is 
up on the issues already. He did it back in '89 successfully, so 
I may use him again l have to prove. The first issue is the 
game, the common gaming house. Now, the evidence would show, Your 
Honour, that at both locations that the games of blackjack and 
poker were played at those locations and I would expect the 
evidence to show that those games are games of chance or mixed 
chance and skill.

There is a witness by the name of Ron Shephard who would be our 
witness on the blackjack game, and who could testify as to the 
nature of the game, how it's played and the odds and so on, and 
the second game is poker, and, for that game, we have a witness 
by the name of Joe Fotia, Sergeant Joe Fotia from the OPP, again 
would be able to testify as to the nature of the game fitting 
within the definition of the Code as being one of game of chance 
or mixed chance and skill. 

So that would be the first area that would be up for discussion 
if my friend would be ready to make any admissions in that 
respect. I can go on or we could just deal with.... 

COURT: Well, perhaps we could deal with them one at a time. I 
don't want to get in any sense, ve the officers 
told them that we had a trial. If you'll remember, we discussed 
whether we should wait until Fontana decided and I insisted on 
having the Crown present their case, and, unfortunately, the 
Crown was not made aware of the fact that we had a whole bunch of 
expert witnesses on the stand and all these issues were 
discussed. 

So I have here the agreed-upon statement of facts that we had 
back in 1989 when, I believe, there were two witnesses for the 
Crown. Now, I believe, they have a little over 90 right now. So, 
had they gone and checked the case in '89, they would have run 
into the transcript about 85 pages of our trial and the statement 
of facts, Exhibit One, and I did ask the officer for a true copy 
of Exhibit One, because I only have the one they made me sign 
before they went and re-drafted it, but I brought it along, 
nevertheless. So I have a copy here. These are the admissions 
that were made in 1989, and I'm fully prepared to make 99 per 
cent of them again.

Now, I don't expect the Crown is going to have many witnesses 
left. Well, actually, I would have expected them to do this on 
the weekend because I mentioned it to Mr. Marin last week that he 
should go get Exhibit one, and I would be making all these 
admissions again. About the only difference between the two games 
happens to be that this one here, I was inviting the public to 
come and play with me as opposed to at Bayshore, where I wasn't. 
So, other than that, all the admissions are pretty standard and 
should he useful here to virtually eliminate 99 per cent of the -
- well, let's say we might have the statistician come in. I can't 
believe there are too many witnesses left after these admissions. 

So perhaps we should take a quick five-minute recess so you can 
take a look at this and refresh your memory as to the statements 
of last time and the Crown may examine it for the first time, I 
don't know, but, with all these admissions, you must understand 
my goal here is to get this down to a question of differences 
between '89. I don't want to spend a lot of time talking about a 
lot, like doing it like a lawyer would do it. I'm going to admit 
everything. I'm not here to argue facts; I'm here to argue a re-
interpretation of the law and I think the first thing we should 
do is establish particulars.

Now, in the discussion before Judge Wright, the Crown pleaded 
Section (a). They said, "Judge Fontana ruled on Section (b). We 
don't disagree with him on Section (b), but we say he didn't rule 
on Section (a)." Now, Judge Wright pointed out that he had ruled 
on Section (a) but the Crown has nevertheless said that they are 
going on Section (a).

Now, I spent a lot of money to pay a lawyer to try and use a 
Bingo argument to try to find out what section they were going to 
use and they wouldn't say. Then, we get in front of Judge Wright 
and now they're screaming Section (a). So they promised 
particulars before Judge Nadelle, I don't see them yet, and I 
think they should, you know, continue with that undertaking 
before things go on. 

--
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