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Isn't it time citizens learn that the Queen of England has no authority over our courts in Canada. Canada and Canadians were given full independence on Dec.11, 1931. Its on record in Ottawa. It was and is the best kept secret in the 20th century. WE are supporting an executive staff of the Queen who is pretending they are our representatives. Do some Canadian history research and enlighten your selves. GAB. "John Turmel" <[EMAIL PROTECTED]> wrote in message news:[EMAIL PROTECTED] > 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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