April 7th 1989

COTE: Yes, in regards to this matter, I am not - I believe that Your
Honour would be aware of Judge Fontana's decision.
COTE: In regards to this, the Crown would be proceeding with Mr. John
Turmel and Mr. Ray Turmel in order to proceed, the right to appeal on
this against these particular individuals and I believe that where
things were left off, submissions are still to be made.
COURT: Well, if you were to adopt the submissions made on the previous
trial, I would adopt the Reasons of Judge Fontana and then everybody
COTE: I have no problems with that. I'm not sure whether Mr. John
Turmel is prepared to admit the submissions that were made on the last
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.
COTE: I understand that, Your Honour.
TURMEL: Your Honour, I would like to get my submissions in, in case
she goes to appeal.
COURT: Well, I would think you have a right to make submissions if in
the event of an appeal, Mr. Turmel and the....
TURMEL: It's just I hope that if I were to get my submissions in, they
might be prompted to not want to appeal.
COURT: There is nothing to prevent you from speaking with Miss Cote
outside of the court context.
TURMEL: Yes, but that is not going to get to the Crown in Toronto who,
she says, are eventually going to decide.
COTE: Yes, Your Honour, as I've stated earlier, I'll proceed with that
COURT: Now, quite frankly, the question of procedure is of some
concern to me. I have indicated, Mr. Ward, in your absence that I am
aware of the decision of His Honour Judge Fontana with respect to
persons allegedly - who are charged as found-ins in the premises.
In his decision, essentially, as I understand it is that there was no
evidence that there was, in fact, a gaming house being kept on the
Miss Cote has indicated that for purposes preserving any rights of
appeal, she wished to continue with the argument, although, to the
extent, I am not sure to what extent argument is really required.
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 what I understand
to be, basically, the same facts. Miss Cote, there is no material
difference in the facts which I heard...?
COTE: I don't believe so, Your Honour.
COURT: I indicated also to Miss Cote and Mr. John and Ray Turmel that
I would propose, without further specific consideration, in view of
the necessity, in my view, of avoiding contradictory decisions on the
same matter on the same evidence, to follow the Ruling of Judge
Now, Mr. John Turmel has indicated that he may wish to make
submissions in any event, in order to preserve a record and quite
frankly, I don't believe that is necessary, given the appeal procedure
and the ability to make submissions on appeal on the facts as found.
I should Miss Cote, this, of course, is presuming the Crown has no
further arguments to adduce than those that have been brought forward
before His Honour Judge Fontana?
COTE: No. The arguments would be the same, Your Honour.
COURT: All right. Mr. Turmel, it strikes me that it would be
superfluous to make argument at this point in time. I have indicated
my intention to, quite simply, follow the ruling of Judge Fontana in
holding that there was no evidence upon which I could find that a
gaming house was being kept on the premises.
TURMEL: It's just certain arguments which - if we do go to appeal
without these arguments, our case might be weaker and I would point
out I can be quick....
COURT: All right. Do you have them in writing? Do you have them in
writing? Is that what you're going to be doing?
TURMEL: Yes, as a matter of fact, I do.
COURT: Well, would you be content, simply, to file them, then, as
forming your argument on this motion?
TURMEL: Well, if I could just make one point for the transcript -
well, actually, two. The betting house charge was dismissed by Judge
Fontana. I have a different reasoning for the dismissal of that one,
to clear it up.
In R. v. Pilon, it specifically states that "if the parties play an
active role in the decision..."
COURT: May I see the Information, please?
WARD: I'm sorry, Your Honour. We've never really addressed that charge
either. I think my friend was intending to withdraw that charge.
COTE: That's correct. They weren't arraigned on that charge, Your
COURT: It's my understanding that there is just the one count we are
dealing with. So, it is strictly the gaming house.
TURMEL: Okay. Well, I would like to hand in a memorandum I prepared,
dealing with all the case law I found, pointing out that basically
many other times, people have been acquitted for playing the game
exactly the same way we were. And I just want to stress that I believe
it would be an abuse of process for the Crown to make us go to appeal
when, R. v. Hing Hoy, R. v. Hung Gee, R. v. Roberts, R. v. Monroe,
have all been found not guilty just as we have been found not guilty
and I just want to stress that I believe it's an abuse of process for
us to have to go through the same arguments, a sixth and a seventh and
an eighth time. That is basically my submission. Thank you.
COURT: All right. Thank you. First of all, the memorandum which Mr.
John Turmel has prepared and filed, then, will be filed as an Exhibit
on the trial, forming part of the record for the purposes representing
him in the argument in addition to the oral submissions he has just
I heard the trial on the charge that John Turmel and Ray Turmel on the
23rd day of February, 1988, at the City of Ottawa did keep a common
gaming house at 2980 Carling Avenue, in the City of Ottawa, contrary
to section 185(1) of the Criminal Code of Canada.
My brother Judge Fontana, a short time before I commenced that trial,
heard a charge of being a found-in or found-ins in a common gaming
house at the same address between the same dates.
I understand that it is common ground that the evidence called in the
course of that proceeding for all practical purposes are identical to
the present matter and that any argument that would have been advanced
in this matter, was already advanced before His Honour Judge Fontana.
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. 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.
John Turmel and Ray Turmel, would you stand up, please?
For those brief reasons and in more particular for those set out by
His Honour Judge Fontana, the motion for a directed verdict is allowed
and the charges against both of you will be dismissed.
WARD: Just for the record, Your Honour, I would like to have a formal
withdrawal of the betting house charges to clean up that matter as
COTE: Yes, Your Honour, those charges are to be marked withdrawn at
the request of the Crown.
COURT: All right. Thank you very much.
WARD: Thank you. One other matter, Your Honour. It is my understanding
that there were a number of items seized in the course of this matter,
which, I guess, that Mr. Turmel would like returned and any orders
that Your Honour is in a position with respect to that?
TURMEL: I would also point out that in the past, even of one
conviction, the articles were always returned anyway. So, I see no
reason for delay.
COURT: Returned and recycled, Mr. Turmel, I take it?
RAY TURMEL: Yes. It's the same equipment as years ago.
COURT: Miss Cote, given the dismissal, there is no objection to the
return of the items seized? Just a moment. I take it, the Crown is
considering an appeal?
COTE: That would be subject to the appeal.
COURT: All right. I will order that at the expiration of any period of
appeal, then, the items be returned.
COTE: Thank you, Your Honour.
TURMEL: Thank you, Your Honour.

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