940313 AFFIDAVIT OF JOHN TURMEL 1. Upon greater inspection of the documents in the complete disclosure by the Crown, it was noted that: a) there is a gap in Officer's Cleary's notes for the period between early July 1992 and early November 1992. b) there is a gap in the Investigation Reports by the Ottawa Police "licence-plate-patrol" for the same period. c) OPP undercover officer Joe Fotia's report to the Nepean Police on his 1991 investigation of the games at Turmel's Baseline Rd. home which was mentioned in Sgt. Cleary's April 8, 1992 notes is lacking. That no charges were laid could indicate the presence of some possibly exculpatory evidence. 2. Without objecting directly to the lack of disclosure, this Affidavit is made in support of an Application for: a) an Order that the Crown fully disclose: i) Sgt. Cleary's notes; ii) the Ottawa Police investigation reports; iii) the Nepean Police report; b) an Order adjourning the resumption of submissions in order to allow the Defence to search for possible exculpatory evidence within the documents and decide how to best proceed if anything exculpatory is found to be therein. Sworn on March 13, 1994. AFFIDAVIT OF JOHN TURMEL 1. During submissions, it became obvious that the Crown had no new evidence from my 1989 case. The 1993 Agreed Statement of Facts Your Honour is now considering contains the same nineteen facts that were presented in 1989 to Their Honours Judge Fontana and Judge Lennox which the Crown at that time considered a complete description of what went on. Nothing relevant has been added. 2. The Crown has also repeatedly noted in his argument that these facts are "on all fours" the same as the 1991 Hull case. I agree that the facts are identical but rather than say they are "on all fours" I would say they are "on all nineteens." I would further point out that the 1989 case was "on all nineteens" with the 1991 case as it is "on all nineteens" with this 1993 case. As I have been playing the same set of rules for over ten years, all three sets of facts happen to be absolutely identical. 3. Contradictorily, the clarity with which the Crown seems to see the similarity in the 1991 facts seems to be unfortunately not balanced by an ability to see the same similarity with the 1989 facts even though the 1989 Agreed Statement of Facts which the Crown then considered complete was adopted in whole as our 1993 Agreed Statement of Facts. The congruence of the facts in all three cases should now being evident, the doctrine of issue estoppel must come into play. 4. In Connely v Dir. Public Prosecutions, [1964]AC1254(H.L.) on page 1259: "The authorities show that the courts have applied the doctrine to cases where a conviction on a second indictment would be inconsistent with acquittal on the first. "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 or are part of a series of offences of the same or a similar character as the offences charged in the previous indictment." 5. In R. v Wright (1965) (1965)3CCC160 affirmed (1963)1CCC254 on page 338 and 339: "The doctrine of issue estoppel springs from the reluctance of the courts to permit inconsistency of verdicts." "There is issue estoppel if it appears that the same point was determined in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. The allegation of the crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding." 6. In R. v Wilkes (1948)77CLR on page 341: "Apart from the plea of autrefois acquit, 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 that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second trial of the same prisoner. 7. In R. v Grdic, 19CCC3d(SCC) on page 289: "The Crown was not allowed to re-try except if there was fresh evidence... Unless it can be shown the subsequent prosecution is an attempt by Crown to re-try the accused, the preferable policy is to exclude issue estoppel. "If to prove the allegation the Crown is merely tendering the same evidence as that tendered previously, then issue estoppel will survive the attack because the Crown's allegation, is in disguise, but a re- litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." Indeed, another judge is invited to reconsider the same evidence and conclude differently. This can only be done through the appeal process finding reversible error resulting in the ordering of a new trial before a different judge." 8. From the moment it became obvious that the facts were the same as in the other two cases, this court could not have jurisdiction as the Crown was therefore "merely tendering the same evidence as that tendered previously, in disguise, but a re-litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." 9. Indeed, Your Honour, another judge, has now been put in the position of being invited to reconsider the same evidence and conclude differently which can only be done through the appeal process finding reversible error in Judge Fontana's decision and resulting in the ordering of a new trial before a different judge. 10. I would submit that the Crown has taken Your Honour into territory where even Judge Lennox feared to tread. Between page 2 and page 7 of the Lennox decision, he says: "I would have difficulty disagreeing with Judge Fontana, simply on the basis of comedy and you would have to be very persuasive to convince me otherwise. "Now, quite frankly, the question of procedure is of some concern to me. "In his decision, there was no evidence that there was, in fact, a gaming house being kept on the premises. "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. "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 Fontana. "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." 11. Judge Lennox was not simply applying the doctrine of issue estoppel without having seen the evidence and heard submissions himself. He had been given exactly the same nineteen Agreed Facts which are before this Court and when he said the Crown would need some very persuasive argument for him to see something different in the facts he and Judge Fontana were both shown, it was a statement made from an informed position after having also heard the same evidence in the case. If he did disagree on a question of law and did not stand up for his own convictions, it would have been a dereliction of his duty. 12. Reconsideration of the same facts irrespective of new interpretations of the same set of facts is not only saying that Judge Fontana's interpretation of the law with respect to the facts was wrong but also that Judge Lennox shirked his duty to hand down a just decision. For Judge Lennox's verdict to have not been such an error or omission necessarily implies more than mere acceptance of the doctrine of issue estoppel but the agreement with Judge Fontana's decision. 13. I must submit that it is beyond the jurisdiction of this court to be in consideration of the following issues Your Honour raised during the trial such as: 14. Your Honour said: "Was the argument raised before Judge Fontana of gain? Or did the matter proceed under (b)? I'm aware that in his decision, there was no reference to what sections he found applicable but it would be significant whether the issue was (a)?" 15. I would submit that there was a reference to what sections he applied by his reading of all five definitions in proper order. I would further submit that there can be no reference to what sections he found applicable because after considering all five subsections out five, he found no subsections were applicable. 16. Your Honour said: "The question I am concerned with is not so much the grammar but whether or not the issue of the (a) was raised, was an issue at trial." 17. I must submit that the very discussion of the interpretation of Judge Fontana's grammar is indication that we are improperly treading on his interpretation of the same facts. 18. Your Honour said: "Was there evidence before the court, this sort of evidence that was before the court today? 19. I submit that what was before this court was not evidence of gains but of expenses. The massive volume of financial recordings of the keeper's dealings with thousands of found-ins was deemed not to be evidence necessary for Judge Fontana to determine whether the place was a gaming house. Judge Fontana could come to his conclusions without it because he had the less complex point of view of one found- in dealing with one keeper; times any number of found-ins. This is much less complicated than the point of view of one keeper dealing with thousands of found-ins. 20. I would submit that from the more elementary found-in's point of view, the information tendered here by the Crown would not have been deemed relevant as to whether the found-in was the victim of a gaming house under section (a) or section (b). The essentials from the alleged victim's point of view are simpler to grasp than from the alleged keeper's point of view. Nowhere in the Criminal Code does it say that evidence of winning a lot of money is more relevant than evidence of winning a little. Nowhere does it say that tracing financial flows is relevant at all. How much the keeper made? Where the keeper stored it? This information has absolutely no bearing on whether a found-in was a victim of a gaming house. Judge Fontana did not treat it as evidence simply because it is not relevant evidence from the found-in's overview. The mere fact Judge Fontana could do without considering such information should be a good indication that it is indeed immaterial to any of the five simple definitions. 21. I further submit that the Crown did not charge any found-ins in this case and recently withdrew found-in charges in another "Turmel- style" Blackjack case because they feared the clearer perspective. It's another indication that the Crown's argument would not be sustainable under the light of the found-in's point of view and the Crown can only hope to succeed by keeping strictly to the cloudy keeper's point of view. 22. Your Honour said: "But Mr. Marin is proceeding on the (a) and he's arguing that in his opinion, you are guilty. That the gain with which he seeks to bring himself within the definition under (a) is the gain from gambling." 23. I submit that Judge Fontana knew I was "winning," making a gain from gambling when he stated "It is not illegal to win money." I submit that the Crown seeking to bring himself under (a) with the gain from gambling is inviting the court to contradict Judge Fontana and state that "it is illegal to win money." It must be accepted that Judge Fontana did not consider winnings as gain under section (a) from his statement: "The advantage that is derived to an individual by reason of his own skill in playing the game in no way confers an unfair advantage as contemplated by the section." He used the word section. Not a subsection. The whole section with all subsections thus granting immunity for gains from winning. 24. I must also submit that he probably did not consider legal winnings as illegal gains simply on the basis of historical antecedents. He chose to interpret section (a) as did every English judge and all but one French judge throughout all of Canadian history. In 1991, I received the distinction of being the only person in Canadian history to have his winnings interpreted as an illegal gain. That it came out of a court where the court was limited to the same French word "gain" used for both the words "winning" and "gaining" had a large bearing on that deviation from the historical interpretation. 25. Your Honour said: "I've read Judge Fontana's decision and what I'm concerned about is whether the conclusion by my brother judge is something which is based upon his findings with respect to the gambling which are findings with respect to a lack of evidence. And there was no evidence on that point. Then, with respect, it would be my understanding that my brother judge who had not turned his mind to address the specific issue that we're hearing here today. 26. I must submit there was relevant evidence heard on that point. The historical issue of sales was addressed and dismissed in relation to section (a). I must further submit that this court has no jurisdiction to be concerned with what Judge Fontana's conclusions were based upon or whether he had turned his mind to address other issues when he said "the place was not kept for gain." That is his ruling on the identical evidence that is before this court and no re-interpretation is permitted unless by way of appeal. 27. Your Honour said: "Mr. Turmel, other than the reference in page 7... 28. I must acknowledge that Judge Fontana only addressed the historical issue of sales once and did not repeat anywhere else that he thought no sales meant no gain but I would submit that it is but another indication of the restricted nature of the historical interpretation he was also using. 29. Your Honour said: "For one of the special pleas to apply, the court has to be satisfied on evidence that there is the same issue between what are substantially the same parties and what I'm asking is: Is there something that you can direct me to to indicate that the court heard evidence on the issue of gain and that that issue was faced? 30. I submit that there is no evidence of whether Judge Fontana considered whether it was a place kept for gain" other than the one statement that "it was not a place kept for gain." I submit this court has no jurisdiction to require more than that verdict without first having been given jurisdiction to re-hear the same facts by a superior court. I further submit that by his double ruling that the place was not kept for gain from sales and that winnings are not illegal gains, he must have heard considered the subsection (a). 31. What Your Honour has been invited to do is to reconsider the same facts with a view of contradicting Judge Fontana's decision on the law. I would respectfully submit that this can only be done through the appeal process by finding reversible error resulting in the ordering of a new trial before a different judge," as my March 23, 1993 application to Justice Finlayson of the Ontario Court of Appeal to extend the time for the Crown to appeal the Fontana decision would indicate. 32. It is an error in law for me to be back before a new judge with a Crown allegation of error on the part of Judge Fontana without having his decision "impeached from without" by the Court of Appeal. A brother judge may not be put in a position of being asked to come to a verdict insistent with Judge Fontana's without there having first been found a reversible error by a higher court. That Judge Bonin chose to ignore such formalities should have little bearing on Your Honour's responsibility. 33. On the basis that there is no material difference in the facts of all three cases, all three are the same "on all nineteens," then this court has no jurisdiction to be reconsidering the decision of Judge Fontana nor of Judge Lennox. 34. This Affidavit is made in support of an application for an Order staying the proceedings on the grounds that this court has no jurisdiction to be re-litigating issues which have been all previously litigated between the two parties. 940318 MOTION BEFORE JUDGE WRIGHT DZIOBA: I'm not certain whether it is at the middle but he is still in a jury trial in the General Division and so I'm here to appear. Mr. Turmel has brought two motions, one for disclosure, the other one for argument on issue estoppel. My instructions from Mr. Marin are these. It's obvious with Mr. Marin being seized with the case, I think there was a trial, there was evidence heard before Your Honour. COURT: All the evidence has been heard. DZIOBA: Mr. Marin is the only one who can properly deal with these matters. I'm neither prepared nor capable of dealing with them. What the Crown intends to do is ask to put the motions to March 23, at 2p.m. which is the next date for an appearance. In the meantime, I've spoken with Mr. Turmel and he's told me what matters he thinks are still to be disclosed. I will certainly communicate that with Mr. Marin and it may well be that by March 23, that matter may be resolved. That is disclosure. Certainly the issue estoppel is for q argument. But the Crown is requesting that these matters be put off to March 23. Mr. Marin will be present at that time and the matter can then be dealt with. COURT: Thank you Mr. Dzioba. Could I see the other Notice of Motion, please. COURT: Mr. Turmel, what is your position on Mr. Dzioba's request that the matter be adjourned to March 23? TURMEL: As for the issue of disclosure, we have the officer here who has all the answers who would be able to tell us. I specifically noted that his notes to me ended for a six month period and there was a scheduled meeting with the Crown on July 13 and all other meetings with the Crown were detailed and put into the notes and so therefore, I know there was a block of notes that is not there and especially for July 13 where there was a meeting with the Crown. I asked the officer who doesn't remember if that meeting was necessarily attended or not but that point in particular I think there's good evidence that there is a portion of the notes that may have been over-looked. As for the Investigation Reports by the quote "License Plate Patrol" unquote, Officer Cleary mentioned that he had gone on to other duties for that period and therefore I would accept that explanation for the Investigation Reports being missing between that six-month block. I would only therefore be able to say that my request for missing information given Officer Cleary response that he was sent elsewhere for that period of time is that I still do not have the report of whoever did go and consult with the Crown at that point in the case. This was when I was still on Baxter Rd which might be relevant. But the most relevant piece of all is the investigation by Officer Joe Fotia who was a witness in our case as well who, in 1991 had been sent undercover to investigate the game in my home and who had filed a report with the Nepean Police which Officer Fitzpatrick, on the April 8 notes, did indicate that the Nepean Police were sending over. Now when one considers that my game in home was investigated, it was analogous to other games that have been discussed here, that no charges were laid, that I would like very much to have a copy of the report that the Nepean Police sent to the Ottawa Police on the hope that there could be some exculpatory information therein. I don't understand why that report whose existence was clearly admitted at that time, wasn't in the disclosure. And I don't wish to challenge anything at this stage as to whether or not the disclosure which was less than full was incomplete from a relevance point of view. I would just like to look at the report and make sure for myself that there's nothing of use. This is not a challenge to the whole Crown's disclosure and some sort of attempt to impeach the process, it's simply a request to look at that information and judge for myself whether it is relevant or not and that the information's existence is there and it's definitely admitted with those notes. So why can't Office Cleary just go back, search out the week of July 13, find out who did go to the meeting if he didn't go, give me those notes and give me a copy of the Nepean Police Report and I would probably, on the basis of probability that I'm not going to have any objection to that lack of disclosure, but I would like to see what was there before I decided for myself whether there was anything relevant or exculpatory in there. So, those two major points. The July 13 meeting with the Crown the notes for which were not provided and the 1991 Fotia report to the Nepean Police which was sent to the Ottawa Police by Officer Fitzpatrick on April 8. So, I don't think that that's necessarily something Mr. Marin has to concern himself about. If I can get a copy of the Nepean report and the notes from the 13th, and see to my satisfaction there was nothing I could use there, then I'm not even going to raise the issue a second time. On the basis of the first motion for the disclosure, I don't really understand.. first I believe I have a right to it. And even though I don't necessarily intend to make much out of not getting it, I certainly would like to have those two pieces of information to peruse. And before the 23rd. In that application, I did ask for an adjournment for the 23rd hearing. There are many reasons. Evidently, I've been doing a lot of work. Because I'm facing the Bonin decision, I had to go to Hull where they said it would take months to do the transcripts but what they could do is give you the tapes. They do this in Quebec. They give you the tapes. Now, I'm in the process of transcribing them and I have five tapes transcribed and of course, I'll provide a copy of the tape to the Crown and Court with my translation as well because there was a lot of French. And if you'd check with Mr. Marin about my translation of the Bonin decision, I'm sure he'll tell you it was accurate and fair because I always expect if one is correct, up on one's things, one doesn't need to cheat so that I would suggest that when I'm through with this, that it will also be just as accurate as the decision was. I am one third of the way through the transcription of the tapes which has taken every spare second of my time. Plus I ran in an election in Victoria Haliburton, fit one of those in there as well, so it's been a very hectic past couple of weeks. If Mr. Marin wishes to come back on the 23rd to discuss these more minor issues, that would be fine by me but I would request a little bit of extra time for submissions but that's the reason I filed this second motion. It stems from the point in Mr. Marin's submissions when he was stating over and over that it was the same thing as the 1991 case in Hull where I was convicted. And he's absolutely correct. But the one thing I noticed in transcribing the 1991 case was that Officer Durno, the expert in 1991, happened to be the same expert from my 1989 case before Judge Fontana. And in his testimony, he's saying: Well the two situations look identical to me. Now if Mr. Marin is correct that the Hull situation is identical and Mr. Durno, the expert in Quebec is correct that it is identical to '89, my contention that all three sets of facts happen to be identical is evidently true and from moment the Crown Attorney was stating that: The facts are the same, the facts are the same, at that point, I think the issue estoppel became very clear. Since the facts happen to be identical, I do not believe it's in this court's jurisdiction to be considering a possible a contradictory decision to Judge Fontana's decision. And I couldn't argue this as forcefully until we had the absolute proof that the Crown had no new evidence and that the Crown also believed it was identical to the 1991 case which it will be easy to show, if I have to, was identical to the 1989 case. So, we do have an admission out of the Crown that you are looking at a set of facts which happen to be identical to 1991 and identical to 1989 and I don't believe Your Honour has the jurisdiction to be contemplating another verdict without Judge Fontana's not having first been impeached at the Court of Appeal. I would point out that in March of this year, when the Toronto Police first threatened to simply raid a game I was running in Toronto without considering what was going on in Ottawa, that I did make an application for an extension of time for the Crown to file a Notice of Appeal of the Fontana decision. I said that the way to go is just not bust me again, put me in front another judge, but to go by way of the Court of Appeal and if you want to do it that way, I do consent. And so I ended up in front of Justice Finlayson offering the Crown the opportunity to appeal and do it right. Well now we've reached the point where the evidence or lack of evidence which shows that even Mr. Marin is now relying on the fact that the facts are congruent with 1991 and he may not have realized that they were congruent with the facts of 1989 as I did because of Mr. Durno's statement that they were the same. So the expert in both cases said the facts were the same in both cases and now Mr. Marin is saying the facts are the same as '91 though he failed to see it with '89. And I'm saying that on the basis that we now have pretty conclusive evidence that the facts were the same in all three cases, I believe at this point you don't have jurisdiction to continue hearing. The moment Mr. Marin didn't bring in any new facts and admitted that it was the same as the old case, I think that at that point, you should have slapped him down, said: You promised me some new facts, you didn't deliver and now I'm stuck here in a position of having to over-rule Judge Fontana on the same facts if you're correct. So, again, that is not something that it's up to this court to be deciding and I can state for the record that if the Crown wants to do it right and wants to appeal Judge Fontana's decision on a question of interpretation of the facts, I'm perfectly willing to consent to an extension of time and let them go do that. But I do not believe that this court has the jurisdiction to be put in the position of contradicting Judge Fontana on the same facts and that's why that motion should be considered first because I won't have to do any more work if you agree with me now that the factual situation is the same as '89 simply because the Crown said it's the same as '91 where the expert said it was the same as '89. I think that it'll be easy to prove. I can find the tape and play it where Mr. Durno was saying that the situations were identical and I guess the last point I would have to make on whether or not you saw new evidence is that there's only one piece of evidence that's relevant to whether it's a gaming house or not and that's the set of rules. Within those rules, you have everything you need to know if any of those sections are being violated. The rules state clearly that there's no sales and there's no rake-off and there's no fee and there's no exclusion and all these are clear. The rules were identical in 1991, the rules were identical in 1989. So, you've got a game with identical rules in all three years. You have a Crown who can see the identical nature of them between two cases but not the third, but you have an expert who can see better than the Crown, who sees the identical nature between 1989 and 1991. So I don't think there's too much chance that it can be stated that there is any difference between the three situations. I can state and could have had I gotten on the stand and sworn that way, that there was no difference in the three factual situations. But again, my point rests on the fact that Mr. Marin was proclaiming that the facts were the same as in 1991. And I say: Yes. He was correct because the 1991 facts were the same as in 1989 and on that basis, this court has no jurisdiction, due to the doctrine of issue estoppel, to continue considering it as, I'm sure, even Judge Lennox who was in the identical position you were in. He had heard the case. He had heard the evidence. He had heard the submissions. He'd heard Durno. He'd heard the same witnesses that Judge Fontana had and when he said: I don't believe I can be putting myself in a position to come down with a contradictory point of view, he had prefaced it by saying: You would have to be very persuasive to get me to do that. Now, the fact was that having seen the evidence, I think it would have been a dereliction of his duty to have not ruled according to his conscience and therefore, though he seemed to rely on the doctrine of issue estoppel to prevent the consideration of the process, I believe that considering he had heard the evidence, that he did not commit a dereliction of his duty, simply bowing to Judge Fontana's decision, but that in the final analysis, it did jive with his interpretation of what the facts in his case said. And I can only go to his statements where he repeatedly says: I'm not going to be put in the position of coming down with a contradictory decision. And now we have analogous facts. Now, again, I'm saying that the Crown misled you when they said they had new evidence. They didn't. If you look at the '89 Statement of Facts compared to now, you'll see that there's absolutely nothing that's been brought in now that wasn't admitted in 1989. I mean, sure, they've got a lot of records but from Judge Fontana's position, it's unnecessary if there's an admission that there was winning going on and losing. So, on the basis that once the Crown did not produce the promised new evidence and once the Crown admitted they had (no) new evidence by screaming it was the same thing as in 1991, I believe at that point then, it was Your Honour's duty, Your Honour's mandate to stop the proceedings and say: Well, if you can't produce any new evidence and this is the same as those others in 1991 and 1989, well then, you didn't do what you're supposed to do, you didn't provide new evidence, therefore obviously, there's an issue estoppel against me. I can't rule and therefore, out the door. And Mr. Turmel consents if you want to go appeal at the Court of Appeal late. Now, it's not as if they're left with nowhere to go. They're left with the proper channel to go. They want to walk up and get a judge to look at the same facts that Fontana saw and then make the arguments Mr. Marin made that: Maybe the judge didn't put his mind to this.. Maybe the judge didn't think this.. Maybe his grammar was such.. I think those are arguments that should be heard by the Court of Appeal. And I don't believe that it's in our jurisdiction, our province, to be discussing what Judge Fontana was thinking or what his grammar meant. I think the Court of Appeal is the forum for that kind of discussion and the fact that we were reduced to it means, basically, that there was no facts there. You were forced to start talking about what Judge Fontana was thinking simply because there was no new evidence for you to deal with. So I know it's hard to.. What it all boils down to is admit that the Crown lied to you when they said they had new evidence. From the Crown's perspective, what they called 10 areas of gain actually happened to be 10 areas of loss. They said: He's losing money on rent. That's a gain. He's losing money on phones. That's a gain. He's losing money on dealers. That's a gain. So, the fact is that the Crown didn't understand the contradictory nature of an expense versus a gain and actually has not even yet alleged that I made money. Because, they haven't divided up how much money that I'd won was at Poker and how much was at Blackjack. And when one considers that when you go from 10 dealers to 100, a lot of cheating dealers came in and I got hurt that way. $75,000 was given to charity. I don't think that there's much way for the Crown to be able to prove and hasn't yet proven that it was Blackjack earnings that paid for all these things and not my Poker earnings? Because I can make over $20,000 a week playing Poker in a $50 game. I earn about three to four units per hour and I can get 10 Poker tables in a room where the winners play at $100 a shot with me, it's large amounts of money for fifty, sixty hours a week. It would be trivial for me to pick up the rent just with my Poker winnings. And one of the source of funds statements did state that the winnings happened to be from winning one particular Poker tournament. Which we held on a regular basis and I always seemed to come into the money. There's been no distinguishing between the two sources of money, Blackjack or Poker. There's no way they've alleged that I've actually made a profit on the Blackjack and they can't say I didn't subsidize the losses with my Poker. So there happens to be absolutely nothing whatsoever that's been given to Your Honour that's been new other than a list of expenses which were frankly identical to the '89 expenses. I paid dealers. I paid rent. I paid expenses. I paid treats. I mean, the expenses happen to be identical to the expenses I incurred at the Bayshore Hotel in front of Judge Fontana. So I think that once the Crown rested their case with no new evidence and started making submissions that it was the same as the previous cases, I think at that stage, Your Honour had the authority to say: Well, no new evidence, issue estoppel, you didn't fulfill the condition you needed to continue talking about Judge Fontana's decision, that there was something new and it didn't apply. And now because there is nothing new and it does apply, we're going to spend the rest of the trial discussing what Judge Fontana was thinking? I think, Your Honour, from the moment when the Crown did make the decision and did make the admission it had no new evidence and that it was the same as 1991, at that point, issue estoppel became applicable and at that point you had the right to stop it and say: I'm not going to take a chance of coming down with a contradictory decision. So on that basis, if you come to the same conclusion that I did that you've seen nothing new from '89, the same 19 facts are the same 19 facts, nothing new has been added to it, and you have the added admission of the Crown over and over that it's the same as the 1991 case, well, I think at this point, even though the Quebec judge didn't consider issue estoppel as reason for him to take a foreign provincial court judge seriously, I don't believe you're in the same boat. I think that because you happen to be in the Ontario system, that you have to treat Judge Fontana's and Judge Lennox's decisions with a little more respect than Judge Bonin did and I think that your hands are tied at this stage. I admit up until the last minute when the Crown closed their case, you had a legitimate right to be hearing in case they had evidence, evidence on the issue, but when they close and there's nothing new and they admit it's the same, well, at this stage of the game, I believe jurisdiction passes to where it should be up at the Court of Appeal. And I reiterate the last time, I'm well prepared to consent to an extension of time if they want to appeal Fontana's decision because I'd be perfectly happy arguing the correctness of his ruling. So on the basis that there is no more jurisdiction now that the facts have been established rather clearly that they're the same, I would at this stage move that if you stay the proceedings, that issue estoppel apply, and then you send the Crown off to the Court of Appeal where they should be doing this stuff. They shouldn't have stuck this hot potato of questioning another judge's reasoning when they promised initially to offer you new evidence so you wouldn't have to question Judge Fontana's reasoning. And now with the new evidence from the transcripts, we have no choice now but to be into a discussion of Fontana's reasoning and that is not a permittable issue at this level, Your Honour. So on that basis, I would say that nothing's changed. Crown knows it. And on this basis, this court has no further jurisdiction to entertain the relief claimed by the Crown and I would ask that a stay be granted or the charges dismissed on that basis with the stipulation that there's no prejudice to the Crown's ability to go and apply for an extension of time at the Court of Appeal to which I am prepared to consent. On that basis, none of the rest of the motions would necessarily be needed. We wouldn't have to come back but if we do, and I do have to prepare a rebuttal of Judge Bonin's decision anyway, I would perhaps suggest that I know Mr. Marin's busy on his own case on the 23rd, that the 23rd be reserved for the hearing of the motion on the notes if there's any problem with Officer Cleary getting the Nepean report, we can argue it then. But if we have to go forward, I'd like another three four weeks to complete my translation and transcription of this most indicting of the points that the Crown has made. So, on that basis, if you see that the Crown has made the error and they have not gotten new facts and you are now without jurisdiction, well, the process is over unless they want to go to the Court of Appeal but otherwise, I would request an adjournment of an extra few weeks to complete preparation of my case against the most damning evidence here and so either way, the case ends and they go to the Court of Appeal or it continues but I'd like a little bit more time to do my rebuttal to Judge Bonin's case. So, on the basis of that, and of course I don't need the notes if motion one works, that's my submission. COURT: Firstly, in relation to the issue of disclosure, Mr. Dzioba, it would seem that what Mr. Turmel is suggesting is not unreasonable.. DZIOBA: No no. And in fact I have made.. It is my intention to inform Mr. Marin of what it is that Mr. Turmel is seeking so that if it is indeed.. if those things do exist, and then presumably, they will be forwarded to Mr. Turmel. Oh no, I have no objection. It's just a matter of determining whether indeed there are any notes and whether somebody did attend the July 13 meeting and if so, who and were any notes kept. Presumably if they were, they'd be disclosed. If nobody kept any notes, I guess there'd be nothing to disclose. COURT: And if there are notes, then, depending on what they are, you'll give them to him. DZIOBA: Yes. Certainly. Yes. I've made note of what Mr. Turmel says exists or he thinks exists and I will pass that on to Mr. Marin to provide. COURT: Mr. Turmel, in relation to the three other issues other than the disclosure, do you wish to make any other submissions with respect to the issue estoppel? TURMEL: I would simply say that because I believe this issue is the crux of my defence, if the decision would go negative, this would be the one time where I would choose to go to a higher court on a certiorari and I'd want a little bit of time. COURT: That's fine with me. I want to read over.. I've just skimmed over your material. TURMEL: Would the 23rd perhaps be an acceptable time to get a ruling on this. It's fine by me but again, I'm looking for an adjournment.. I mean, I don't really want to have to get into this unless I really have to. Each of these takes about four five hours to do and.. COURT: All right. What I'll try to do then is.. The Crown will be looking into the issue of disclosure between now and 23rd and hopefully you'll have the information before the return date to court and we can address what, if anything, arises at that point. You don't wish to make any further submissions on the issue estoppel? TURMEL: No, it's pretty well in my Affidavit. COURT: I will keep the materials and I'll endeavor to provide by the 23rd, I understood that the submissions that you were intending to make would focus on the issue of GST. And I've assumed the distinction between the services on which GST is being paid, the characterization of the income from your business... TURMEL: That's right. COURT: I don't know this but I assume from your submissions that no GST is payable on winnings. TURMEL: That's right. Of course, if I do go to submission, it's going to be a major amount of the time discussing Judge Bonin's case. And how such an abnormality could have come about? After all, I am the first person in Canadian history whose winnings have been convicted of an illegal gain. COURT: But the disclosure issue, if resolved, I'll be prepared to give a ruling on the issue estoppel. Do you wish to keep the time set aside for you to make your GST submissions. TURMEL: If I have to prepare the Bonin case, I'll keep plugging away, but if I have to prepare, I'll probably want a little more time to get it all organized. I don't believe.. I believe the Crown is kind of tied up as well. COURT: What I will do then in those circumstances. I will provide a ruling on the 23rd if the ruling will not be favorable to you.. TURMEL: If it's favorable, it's over. COURT: If I have some.. After I've read the material, if I feel it's necessary, then I'll call upon the Crown to respond on the 23rd to the issue estoppel. DZIOBA: Yes, the reason I rose was to.. COURT: You haven't made submissions on that issue. DZIOBA: Exactly. I don't want to leave my colleague, Mr. Marin, at a disadvantage. It may very well be that the issue between him and Mr. Turmel is that the 1989 case is not, from what I've been able to understand, is not analogous. What may be.. COURT: What I would like to do Mr. Dzioba then is.. I think the disclosure issue is resolved. DZIOBA: Yes.. COURT: I'll grant the request for the Crown to adjourn the balance of the matters to the 23rd. If I feel that there is some merit to the issue raised by Mr. Turmel, then at that point, Mr. Turmel is asking for an adjournment anyway to do his GST and the Turmel decision from Quebec, at that point, both the Crown and Defence could see Mr. Matthews and obtain a date for the submissions that would be required. COURT: If the decision is not clearly not favorable to Mr. Turmel, I would be in a position to provide that on Thursday. I would provide the decision on that day and we would still require a further day for the Defence to prepare transcripts and other file submissions. Is that suitable? DZIOBA: Yes, Your Honour. As long as I don't leave my colleague in a situation where on Thursday he has no opportunity to respond. COURT: The situation then on Thursday is that no one is required to make any submissions. Is that fair? DZIOBA: Yes. All right. COURT: As I take it Mr. Turmel is indicating that in light of the ruling and in light of the disclosure and in light of his requirement to obtain a record from the tapes that he's been provided, he's going to require time. DZIOBA: Yes. COURT: The Crown is indicating that they would require time to respond to the motions that are before me today.. In fairness, then, perhaps, I have something else scheduled for Thursday anyway. What you were attempting to do is in the hopes that that matter would be resolved early, that we would have some time to.. I'm concerned and I'll put it on the record that we may be looking at a long delay now before the time will be available to come back for last submissions. TURMEL: Your Honour, I can live with that now. Right after the casino was closed with a lot of people hoping to go back to work, it was different but the rush is gone. So I can live with whatever. I'll be available. So it'll strictly be the Crown and the Court's co- ordination. I'll be there. COURT: So the disclosure issue we will put off to Thursday. Hopefully that can be resolved. If I'm in a position where the decision would not be favorable to Mr. Turmel and I am in a position to conclude that by Thursday, I'll make the decision then. If not, then as the Defence is requesting an adjournment, do you have any objections to Mr. Turmel's requested adjournment for the purpose of transcribing the tape. DZIOBA: No. I have no objection. It might be just as beneficial to the Crown as to Mr. Turmel because it may very well be that on the basis of what is revealed in that case, the Crown might be able to argue that there is no analogous case here and that the issue estoppel might not apply. COURT: So what we'll do then is adjourn to the 23rd, the date already set for the matter to be spoken to. If I'm in a position to deal with the issue estoppel, I will. If not, then both that issue and the two issues Mr. Turmel wishes to make in his submissions will then be put to the other date. Since the court will be looking for an adjournment date in any event, perhaps if both the Crown and the Defence will consult with Mr. Matthews prior to 2p.m. prior to the hearing in courtroom #4. Perhaps it might be a good idea to see Mr. Matthews today. DZIOBA: In any event, I suppose it should be Mr. Marin who ought to attend since.. TURMEL: And I'm amenable to any day they pick. COURT: Thank you gentlemen. 940323 DECISION OF JUDGE WRIGHT MARIN: Good afternoon, Your Honour. I am here, Andre Marin, for the Turmel case. COURT: Yes MARIN: I happen to be, the last time, right in the middle of a jury trial upstairs and the judge has started his charge to the jury and he's resuming at 2p.m. COURT: Okay. MARIN: And I have indicated to him the dilemma I was in but also telling him that I had set tghis date to be subject to the jury trial. So he has asked me to return for 2:20. So I just thought I'd indicate that to the Court. COURT: That's fine. Mr. Turmel? TURMEL: Yes, Your Honour? COURT: I have reviewed the material and the submissions. I can indicate that on a basic level, I have to agree with you that the facts are largely the same in relation to the game: the rules are as you described in an earlier date in court, the structure. In my view, for issue estoppel to apply, the Court must also be satisfied that the issue is the same or that the issue is substantially the same. here, from the submission -- from the evidence which we have heard, from the submission which the Crown has made and the submissions which have been advanced in part on your behalf, it would appear to me that the issue is a fairly narrow one and that issue is the meaning of "gain." It would appear that the issue of gain is not one which has been addressed, at least directly, in the previous cases to which references have been made. And therefore, I find the doctrine is not applicable here. Now, there were two matters that we spoke to last week, one of which was the matter of the argument of issue estoppel and the other was the issue of disclosure. Has that issue been addressed yet? TURMEL: No. I haven't received any documents yet. The Nepean Report or the notes yet. I don't know what the Crown has chosen to do. COURT: Mr. Marin? Do you know anything about that? MARIN: Yes. I've been doing the catch-up. My indication is that all the notes of Det. Cleary have been disclosed to the Defence. There are logs. Because at one point Mr. Turmel was collecting them, Mr. Turmel's associate was collecting them. At one point, his lawyer was collecting them. My understanding here is that they were logged and all the notes of Det. Cleary contained in the case were disclosed. Now Det. Cleary is ill today and he couldn't come in to confirm this. I have Det. Constable Young from the OPP present but unfortunately, Det. Cleary could not make it in today. My understanding is that disclosure has been complete and there is no lapse in the disclosure given to the Defence. That is my understanding. I stand to be corrected on that. It would occur to me that concerning the 1991 Nepean Baseline Rd. investigation, my submission: I do not see how that is applicable. It's not before the court. There is no evidence that in that sense. It's not in the information. The relevance of those materials.. I don't see any grounds for which I can necessarily object except for relevance. It has absolutely nothing to do with these charges. And my final comment, Your Honour, on the disclosure request is that there is no factual issue before the court to be determined. One issue is the definition of the statutory expression, expressions, words for "gain." The timeliness of the motion is surprising and the relevance of the motion for disclosure is as well. How could that assist him in guilt or innocence when he hasn't called evidence, when he has relied on evidence called by the Crown, and when there's only a legal issue to be decided. COURT: Well I know what you're saying, Mr. Marin, and certainly, the timing is unusual. I think it's important to remember that Mr. Turmel is a non-lawyer who is representing himself. And I think that, in those circumstances, both the Court and the Crown should give some latitude to an individual in Mr. Turmel's circumstances. And I would hope that if there was any further disclosure which could conceivably be relevant, although I understand your position, you don't understand what the relevance might be -- but if there is anything that could conceivably -- which in anyway could be relevant and if Mr. Turmel is requesting it, I would like it to be provided to him. MARIN: Yes, I couldn't agree more. I would just note for the purposes of the record in case it's ever produced that Mr. Turmel was also represented by counsel from very early on in the pre-trials and submissions of the last time so I would note that he has had the assistance of counsel. But in any event, Your Honour, Det. Cst. Young is present in court and I certainly ask him to get in touch with Det. Cleary and so, there's nothing more to disclose from Cleary's notes that has not been already disclosed. So that's a non-issue in the Crown's position. If the accused has lost disclosure or wants it again, we could always arrange that. But certainly, the Crown does not want that to be seen as an absence of disclosure. Concerning the Nepean investigation on Baseline Rd. in 1991, he's indicated to me that he would be looking into that if that has not already been done. And perhaps the best way would be to set a return date within 10 days or so and have the matter spoken to before Your Honour just to confirm that it's done. COURT: All right. MARIN: A week or ten days, would that be sufficient, Det. Young? YOUNG: Yes it would. COURT: What perhaps might be preferable would be that if the matter can be brought before me within 10 days if the disclosure is not resolved rather than set a date to come back. But if there's a difficulty, it could be brought back before me. Mr. Turmel, you have some further submissions that you wish to address on the issue of gain? TURMEL: On the issue of gain? COURT: In relation to the issue of GST? I believe that was your indication? TURMEL: Unless this is... COURT: Not today but at some point you indicated... TURMEL: Absolutely. Yes. That (a) deals with GSTable gain. COURT: How much time do you anticipate you required for your submissions? TURMEL: It depends on how much work I have to do on the Bonin judgment case. When you have something that is so "ahistorical," never been done before, it's going to take a lot of digging into the reasoning to explain this one. And I would think probably I would need 4, 5 hours in a day and I would include all the GST arguments and everything. COURT: You think four, five hours will be sufficient for you to make your submissions? TURMEL: I think so. COURT: Mr. Turmel, Mr. Marin, I will put this matter over the 22nd of April at 9 o'clock in Number 9 court. 940329 I did file what I thought was a proper application for Certiorari: AFFIDAVIT 1. I am a graduate systems engineer specialized in game theoretical and statistical engineering. I've practiced my profession as a skillful gambler since 1974. I have been accredited as an expert witness in matters related to gambling on numerous occasions by both the Ontario and Quebec provincial courts. I have also been several times convicted of keeping a common gaming house in my efforts to find a legal way to play Blackjack but was finally successful and acquitted in 1989. 2. For over ten years, I have operated the games of Poker and Blackjack with identical rules. Over the last five years, I was charged with keeping a common gaming house three times: in 1989 in English, in 1991 in French and in 1993 in English. 3. Ex. A is the April 3, 1989 decision of Ontario Provincial Court Judge Fontana who dismissed the charges against the found-ins finding a complete absence of evidence of a gaming house. On page 4, he stated: -- there were available but there was no charge for them, -- there was no fee to enter the game, -- there was no percentage or rake-off, -- a player exercised his right to be dealer." On page 6, he stated: "Common gaming house is defined in five ways. On the evidence alleged by the Crown and accepting the testimony presented on behalf of the Crown by Mr. Turmel, the operation in this occasions clearly does not fall into the first four categories: -- a place kept for gain, or for playing games where: -- the bank is held by one or more but not all of the players, -- there is a rake-off charged, -- there is a fee charged. Clearly, none of these four criteria apply. If the operation is to be caught, it must be caught with respect to subsection four." On page 10, he stated: "the opportunity to be the banker\dealer was available to all players who participated in the game." On page 11, he stated: "The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section." 4. Ex. B is the April 8, 1989 decision of Ontario Provincial Court Judge Lennox who, after also hearing the evidence, concurred that there was no gaming house in view of a total absence of evidence and dismissed the charges. The Crown did not appeal. 5. Ex. C is the 1989 Agreed Statement of Facts comprising nineteen (19) agreed-upon admissions. OPP Sgt. Andy Durno was the Crown expert witness on gambling. 6. Ex. D is the Oct. 23, 1991 decision of Quebec Provincial Judge Bonin on another gaming house charge. Though there was no Agreed Statement of Facts, again the Crown's expert witness was OPP Sgt. Andy Durno who testified under cross-examination: TURMEL: Now, if you'll remember back in 1989 when you were asked given the rules of my game.. are you familiar with this case at all? DURNO: This particular case? Other than it was very similar to the case in Ottawa in 1989 but specifically, no. TURMEL: So it's safe to say you know nothing of the facts of this particular case that I can ask you about? DURNO: Other than what Exhibit 25, that's all. TURMEL: Have you noticed any difference at all in the way the game was played at the Bayshore Hotel in 1989. The rules as posted in posted in 1989 and the rules you see there? I have a copy of the '89 rules.. DURNO: They look similar but I'm not sure and I don't have a copy of the rules.. It's, like I say, it looks similar but I wouldn't know if there's any differences. 7. But even though the activities were based upon the same set of facts, Judge Bonin convicted me. French language users have no way of distinguishing between a "win" and a "gain" since the same French word "gain" is used for both "gain" and "win." Though both English judges ruled: It is not an illegal gain to hold the "winning hand" at cards, the French judge ruled: It is an illegal gain to hold the "gaining hand" at cards. In mathematics, to solve for one variable, you need one equation. To solve for two variables, you need two equations. To solve for three variables, you need three equations. Similarly, in linguistics. To grasp one concept, you need one word. To grasp two concepts, you need two words. To grasp three concepts, you need three words. In solving for two variables, one would expect that those possessed of two equations for two variables would be able to come to the correct conclusion while those possessed of only one equation for two variables would never be able figure it out. Similarly, in attempting to grasp two concepts, one would expect that those English judges who possessed two words for two concepts would be able to come to the right conclusion while the French judge who possessed only one word for the same two concepts would be lucky to guess right. Why I was acquitted in English and convicted in French is a pure function of whether the judge had an adequate number of words to grasp the concept and it is evident that the total break in the historical pattern can only be caused be such a vocabulary inadequacy. 8. On July 20, 1993, I was once again charged with keeping a common gaming house by the Ottawa Police. 9. Ex. E is a 1993 Agreed Statement of Facts which I drafted to comprise the identical nineteen facts which were in the 1989 Agreed Statement of Facts. 10. Ex. F is a Crown document titled "Undisputed Facts Between the Parties" comprised of all of the facts from the 1989 Agreed Statement of Facts except #11, #17, #18, and parts of #19. 11. Ex. G is the Feb. 23, 1994 fax from the Crown indicating the acceptance of the last four 1989 admissions of fact: #11, #17, #18, and #19. To all intents and purposes, the same nineteen facts examined and ruled an acquittal in 1989 are now being re-examined in 1993 for a hoped-for ruling of conviction. 12. During my trial, the Crown did indicate that the facts of the 1993 activities were identical, "on all fours" with the 1991 case. That Officer Durno could discern no difference between the 1991 activities and the 1989 activities would indicate that they were also "on all fours." By logical deduction: Triangle(A) is congruent with Triangle(B). Triangle(B) is congruent with Triangle(C), then Triangle(A) is congruent with Triangle(C) also. If Sgt. Durno says the 1989 activities were congruent with 1991 activities and if Mr. Marin says the 1991 activities are congruent with the 1993 activities, then the 1989 activities are congruent with the 1993 activities also. On March 23, 1994, Mr. Marin once again re-affirmed that there were no new facts: "There is no factual issue before the court to be determined. One issue is the definition of the statutory expression, expressions, words for "gain." 13. After having promised the court new evidence and after having closed the Crown case without offering any new evidence, the only thing new was the question of whether Judge Fontana and Lennox determined the proper legal definition of the statutory expression of the word "gain." Submitting that second-guessing what Judge Fontana may not have considered in his ruling was not the jurisdiction of the Provincial Court, I moved the special plea of issue estoppel on the grounds that the nineteen 1993 undisputed facts were indeed congruent with the 1989 undisputed facts resulting in acquittal. 14. In my Affidavit, I pointed out that the court was now in discussion of whether Judge Fontana had properly applied to law to the facts which should be the responsibility of the Court of Appeal. To come down with a conviction on the same facts would be a contradictory verdict which is not permitted. 15. On March 23, 1994, Judge Wright ruled on the doctrine of issue estoppel that: "It would appear that the issue of "gain" is not one which has been addressed, at least directly, in the previous cases to which references have been made and therefore I find the doctrine is not applicable here." 16. The Applicant submits that Judge Fontana did not fail to address the issue of "gain" directly. In my Affidavit, I did point out that Judge Fontana had "pronounced" himself on the question of "gain." On page 4 and 6 of his decision, he stated: "Refreshments were available but there was no charge for them." "The operation on this occasion clearly does not fall into the first four categories, that is, `a place kept for gain.'" 17. The "issue of gain" raised by the Crown is: Is winning at cards is an illegal gain? Historically, selling was considered illegal gaining. Winning was considered winning and never considered illegal gaining until the French judge concluded that holding the gaining hand at cards was an illegal gaining. 18. Not only is the Crown attempting to get the court to reconsider the same evidence and conclude differently but the Crown asked the court to overlook the historical restrictions on the meaning of gain and throw it open to the common-place meaning. In this way, winnings won at legal gambling which were once historically protected could now all be prosecuted as illegal gains. 19. This Affidavit is made in support of a motion for: 1) an Order of Certiorari dismissing the charge on the grounds that the doctrine of issue estoppel forbids the trial judge from contradicting Judge Lennox and Judge Fontana on the same set of facts, or 2) an Order for any just relief under Section 24 of the Charter of Rights to remedy violations of the following rights: Section 2: to peaceful assembly and association; Section 6: to gain a livelihood; Section 7: to not suffer double jeopardy; Section 8: to not suffer unreasonable search and seizure; Section 9: to not be arbitrarily detained; Section 11d: to be presumed innocent; Section 11h: to not be tried again if finally acquitted; Section 12: to not be subjected to cruel and unusual treatment. Courtroom Number Thirteen JUSTICE MILLETTE MARIN: Your Honour, we're left with the Turmel application. COURT: Yes. MARIN: I'm prepared to deal with that. COURT: Mr. Turmel, I understand you're representing yourself. TURMEL: Yes I am, Your Honour. COURT: I noticed that the only information in connection with it is the motion Record. TURMEL: Well, the clerks downstairs said they could praecipe up the main file right away if it's requested. I guess the reason it hasn't been is that there are no factual disputes here whatsoever.. COURT: But, has there been, in terms of procedure, has there been a plea entered? TURMEL: Yes. It was entered: Not guilty. MARIN: The trial's almost completed, Your Honour. COURT: So where does that leave me today in terms of section 776 or of the Criminal Code? MARIN: The Crown's position is that the accused's Record of Application is not only deficient in a number of ways. For example, the judge seized with the trial, it should be noted that the trial is almost completely through. The Crown's made its submissions. The Defence made submissions and Mr. Turmel was represented by counsel at trial and counsel made submissions. Mr. Turmel was in the middle of his submissions and it was adjourned for further submissions later. But the trial is for all intents and purposes is almost all done and Judge Wright, who's doing the trial, was not served this motion. So how could... This court is well aware that if the accused asks for an extraordinary remedy, the trial judge has to be advised otherwise his jurisdiction is not suspended. [***Wow!! His jurisdiction is suspended when I move higher! to there's that reason. There is also the short notice to the Crown. There's the Affidavit submitted to the court and used by the accused who is going to be an advocate in his own case which is also improper. And the Record is incomplete because we have no record of what took place during the trial. Notwithstanding all of that, I take issue with all these points but more importantly, it would be the Crown's submission onn this Application, and I have one further material here to submit, Criminal Procedure by Mr. Justice Salhany, in the 6th edition, 1984, which I've provided to the accused is that there is no jurisdiction for this court to treat the application filed by the accused. Even if we pretended there were no deficiencies in form, this court has no jurisdiction to proceed by hearing this motion. Mr. Turmel has already presented all these motions to the trial judge and they were rejected. The Res Judicata application was presented two or three times. Rejected each time. So was the Charter Application. And so his recourse would be to hang in to the end of the trial and if he loses the trial, there's his right to appeal. But what he's trying to do is an interlocutory criminal appeal and Justice Salhany is quite clear that the issue of res judicata belongs to the trial judge and that the trial judge is the only one with jurisdiction to deal with it. The case of Mills which I've submitted on the rights under the Charter is again quite clear that it belongs to the trier of fact. It's like if I was running a case on an indictable matter before this court and Your Honour made a decision based on the Charter that was either favorable to the Defence or to the Crown. The other party would automatically bring it to the Court of Appeal without the benefit of a verdict in the court. I submit this causes disjointed criminal proceedings which mean we will never get to the end of the criminal case. So the Crown's position is that not only do we have these quite important defects in form... and I say this because I know the accused was represented by counsel at trial. He's taken it upon himself to present his motion by himself and so he does not have benefit of counsel in this court. But I'm saying that even taking it at face value, the best of scenarios, assuming there are none of these deficiencies in form, that Your Honour has no jurisdiction to deal with what appears to be an interlocutory appeal based on an unfavorable Charter ruling and an unfavorable res judicata ruling. I'd also draw attention of the parties to section 776 of the Criminal Code. I thank Your Honour for pointing this out. 776(b). The merits have yet to be tried. And again this would support the Crown's submission under 776(b) that the first remedy the accused would have would be to appeal supposing he would lose. He hasn't lost yet. And if he was convicted at trial, then he would be forced to appeal and not bring a certiorari. So again, this supports the Crown's position that this motion is premature and should wait until the end of the trial and if he is unsuccessful at trial, then his right is to appeal and not to... COURT: Yeah... MARIN: ... be in this court. COURT: Mr. Turmel. TURMEL: Well, Your Honour, if it is so that I had to serve Judge Wright before this could proceed, well, then, all of this is moot and I may as well just start over. My point is that there are no factual disputes here. It's exactly the same set of facts ruled on in a prior case, 1989, and therefore I'm arguing the judge has no jurisdiction to be re-litigating facts which were heard by one of his brother judges five years ago and ruled upon in a different way. And the Crown has now presented him with the same set of facts.. COURT: Except they were at a different time... TURMEL: That's right, Your Honour. But, fortunately, time is immaterial to this situation. You know, it was a set of rules of a gaming house and whether the rules were carried out the same way one year to the next is not material to the issue of whether it's a gaming house which is a function of the rules but the rules didn't change. So the judge is being asked to decide again upon the same activity even though it's a different time and place and come up with a different conclusion. And as far as I know... COURT: Well, that may be but the difficulty you have is a procedural difficulty... TURMEL: Understood. I'm ready to go home and do it right and serve.. COURT: The question I ask, because it was not part of the record, there was no mention of that, whether or not there had been a plea entered and of course, that was upper-most in my mind. Because, as the Crown has mentioned, the application is defective in form. If indeed, there has been a plea, then the case must proceed on its merits. TURMEL: But.. COURT: And.. TURMEL: Okay. COURT: ...the challenge to the jurisdiction then could only come then by way of appeal. And this is, of course, the remedy that you have. And the matter must be proceeded with this matter. If you had taken objection to prior to the pleading after, then it may be.. TURMEL: I did, Your Honour. COURT: ... that your application would have some merits. TURMEL: Oh. COURT: But in light of the fact that it was not taken... TURMEL: Yes it... COURT: I am not saying that... TURMEL: It was three, four times.. COURT: ... you would be successful but I am saying that at the moment, because you have entered a plea in regards to the matter which you wish to stay, then definitely the remedy that you have at this point in time is to see that matter to to conclusion and appeal if you are not satisfied with the result. In the circumstances, I agree with the Crown here that the application is defective in form and that this application must be dismissed. TURMEL: I'm sorry for taking your time on a procedural error. COURT: That is what we are here for, Mr. Turmel, there is no problem at all. TURMEL: Thank you. COURT: I would be pleased to... MARIN: I'd like, Your Honour, Your Honour's ruling is quite clear in this respect and I'd like the accused to understand. It is that the court has found not to be procedural error but the remedy would be an appeal. COURT: That's right. MARIN: And so I just wanted to make clear because I don't want this matter to be relisted next week with Judge Wright being served. The ruling of the court is clear that it is an appeal after lack of success if that's the case. COURT: That's right. MARIN: Thank you. COURT: Because there has been a plea, if there had been no plea, if it had been taken before plea, then it's a different matter. TURMEL: Well, well ... COURT: Then the court might have looked at it. But in this case, there has been a plea entered and definitely it is not in the proper jurisdiction. MARIN: Thank you, Your Honour. TURMEL: Your Honour, may I make one point before you leave. I did stand mute at my trial which in the Wilson case ... COURT: Well, I don't know anything about that so it would be... TURMEL: All it means is that I didn't plead, technically. COURT: I'm just here to hear the motion before me and I've dealt with that.. TURMEL: Okay. All right. COURT: We'll all rise. 940420 ONTARIO COURT OF JUSTICE (GENERAL DIVISION) NOTICE OF APPLICATION TAKE NOTICE that an application will be brought on Wednesday May 18, 1994 at 3:15p.m. at 161 Elgin St. Ottawa for: 1. An Order in the nature of prohibition, prohibiting His Honour Judge J. P. Wright or any other Provincial Court Judge from proceeding with the Applicant's trial on a charge of keeping a common gaming house contrary to Section 201(1) of the Criminal Code, and 2. An Order in the nature of certiorari quashing the said Information. 3. An Order pursuant to Section 24(1) of the Charter of Rights and Freedoms for an Order staying or quashing proceedings herein. THE GROUNDS OF THE APPLICATION ARE: 1. That the Learned Judge lost or exceeded his jurisdiction by ruling that the principles of autrefois acquit and issue estoppel did not apply to proceedings against a once-before acquitted activity; 2. That the Learned Judge is attempting to exercise a jurisdiction that the Learned Judge does not possess and which is reserved exclusively to the Ontario Court of Appeal. 3. That the Learned Judge lost or exceeded his jurisdiction by continuing the proceedings without any evidence at all. 4. That the Learned Judge acted in breach of the principles of natural justice by rejecting the special plea of autrefois acquit on the basis to a difference in time and place when time and place are non- substantial considerations. 5. That the Learned Judge lost or exceeded his jurisdiction by ruling that Sections 11(h), 2, 6, 7, 8, 9, 11a, 11d, 12, and 15 of the Charter of Rights and Freedoms had no application in the circumstances of this case. 6. That this is an extraordinary case. 7. Such further and other grounds as the Applicant may advise and this Honourable Court may permit. AND TAKE NOTICE that a motion will be made to extend the time for filing and service of the Application. IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING: Mar. 31, 1989 Transcript Trial of John Turmel before Judge B. Lennox Apr. 03, 1989 Transcript Judgment of Judge J. Fontana Apr. 08, 1989 Transcript Judgment of Judge B. Lennox Aug. 16, 1993 Affidavit of John Turmel Nov. 15, 1993 Transcript pre-plea motion to quash Nov. 26, 1993 Transcript Decision of Judge J. P. Wright Dec. 13, 1993 Transcript Pre-trial #1 Feb. 04, 1994 Affidavit of John Turmel Feb. 08, 1994 Transcript Pre-trial #2 Feb. 22, 1994 Affidavit of John Turmel Feb. 24, 1994 Transcript Trial Feb. 25, 1994 Transcript Pre-plea motion to quash and Decision Mar. 17, 1994 Affidavit of John Turmel Mar. 18, 1994 Transcript Pre-plea motion to quash Mar. 23, 1994 Transcript Decision of Judge J. P. Wright THE RELIEF SOUGHT IS an Order allowing the Application and quashing the Information or staying the proceedings. THE APPLICANT MAY BE SERVED with documents pertinent to this Application by service in accordance with Rule 5 through 2918 Baseline Rd., Nepean, Ontario, K2H 7B7, Tel/Fax: 613-820-8656. NOTICE TO COURT SERVICES MANAGER By virtue of Rule 43.03(3) of the Criminal Proceedings Rules of the Ontario Court of Justice (General Division), you are, upon receiving this notice, to return forthwith to the Clerk's Office at 161 Elgin St., Ottawa, Ontario, true copies of the committal herein referred to, together together with the indictment, information, exhibits and papers or other documents touching this matter, as fully and as entirely as they remain in your custody, together with this notice and the certificate prescribed in the said rule. Dated at Ottawa on April 20, 1994. John C. Turmel, B. Eng., TO: His Honour Provincial Court Judge J. P. Wright, Mr. Andre Marin, Crown Attorney, Clerk of this court. 940421 CROWN NOTICE OF APPLICATION PURSUANT TO Rule 6.15(2) of the Rules of Criminal Practice, General Division Matters, take notice that an application will be brought on Wednesday the 20th day of April, 1994 at 161 Elgin Street before the Honourable Mr. Justice Desmarais since the Notice of Application served by Mr. Turmel on April 20, 1994 can be heard without a full hearing. THE GROUNDS FOR THIS APPLICATION ARE: 1. That Mr. Turmel has not shown a substantial ground for the order sought. 2. That the matter is frivolous and vexatious. 3. Such further and other grounds as counsel may advise and This Honourable Court may permit. IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES UPON THE FOLLOWING: 1. A similar motion which was brought before The Honourable Mr. Justice E. R. Millette on March 29th, 1994. 2. Excerpt of Proceedings heard before The Honourable Mr. Justice E. R. Millette on March 29th, 1994 at Ottawa, Ontario. 3. Such further and other evidence as counsel may advise and This Honourable Court may permit. THE RELIEF SOUGHT IS: 1. An Order summarily dismissing the Application. DATED at Ottawa this 20th day of April, 1994. Andre Marin, Fax 239-1214 JUSTICE DESMARAIS REASONS FOR DECISION COURT: This is an Application by the Crown made without notice pursuant to Rule 6.15(2) of the Criminal Proceedings Rules seeking an Order dismissing the within application on the basis that it does not show a substantial ground for the Order sought and is therefore frivolous and vexatious. The Order sought by the Applicant (Turmel) is for Prohibition, Certiorari as well as an Order for a stay pursuant to s.24(1) of the Charter. On March 29th, 1994 Turmel made an Application for an Order for Certiorari which was dismissed by Millette J. The application for an ORder for Certiorari found in the present application is substantially the same as was before Millette J. For the reasons enunciated by Millette J. this portion of the application is dismissed. The present application also seeks an Order for Prohibition. There are no supporting documents by way of evidence or otherwise as would provide grounds for the granting of such an Order. There are no allegations of bias supported by facts which might give rise to an Order for Prohibition. Furthermore, rulings made by the presiding Judge does not of itself give rise to a reasdonable apprehension of bias. Turmel's trial before the Honourable Judge Wright of the Provincial Division is now at the stage of hearing submissions by Turmel. The trial is scheduled to be reconvened for that purpose tomorrow, April 22, 1994. The Application for Prohibition, unsupported as it is cannot be granted. It smacks of a delay tactic to disrupt the orderly conduct of the trial. As a general rule, prohibition should be refused unless it can be shown the harmful consequences to the applicant clearly outweigh the delay and fragmentation of the trial resulting from the prohibition application. That is not the case here. The application for both certiorari and prohibition are both frivolous and vexatious. Turmel also seedks an Order pursuant to s.24(1) of the Constitution Act, 1982 to stay or quash the proceedings before the Honourable Judge Wright. The remedy being sought is in the nature of an interlocutory appeal. The S.C.C. in Mills v. Queen 26 C.C.C. (3d) 481 at p.296 made it clear that all criminal appeals are statutory and there should be no interlocutory appeals in criminal matters. I am of the view therefore that the matter should be completed before the Honourable Judge Wright and, following his decision, either party may appeal the result. Given the urgency of the within application by the Crown, the court has dispensed with the necessity of providing notice or the filing of a factum. Order accordingly dismissing Application by Turmel, dated April 20, 1994. RELEASED: April 21st, 1994. Demarais, J. #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** T R I A L (SUBMISSIONS) HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT on Friday, April 22nd, 1994, at Ottawa, Ontario. ********** CHARGE: S. 201(1) ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self TABLE OF CONTENTS Exam. Cr.- Re- WITNESSES In-Chief Exam. Exam. ********** E X H I B I T S EXHIBIT NUMBER Put in on Page THE COURT: Good morning. Mr. Turmel? MR. TURMEL: Well, Your Honour, a few interesting things have happened in the last month. I have here an application record for a short-notice motion which I'd like to hand up. This has to do with the motion for extraordinary relief that I'd filed in the General Division, which was dismissed ex parte on Wednesday night by the Crown, relying on excerpts from the transcript of a March 29th hearing before Justice Millette. Now, at that time, I had not served Your Honour with notice of motion; therefore there was a technical flaw, and, once that had been pointed out, I knew there was no more reason to argue the merits. And, at that time, Justice Millette did mention that if I only not pleaded, I'd be able to be in his court seeking this kind of relief. Now, I knew I had stood mute - and of course, Mr. Marin must have remembered that I had stood mute - but it didn't get through to Justice Millette that I had stood mute, and that was why you had ruled on the April 23rd motion. Now, I think that, considering I was up all night typing this affidavit, perhaps the best thing I could do would be to spend 15 minutes and read it, digressing where necessary, to bring you up to date on what's happened. But my point is that I do believe that the Crown - there has been some malfeasance here - the Crown three times misled Justice Millette at that 29th hearing. It's explained in here. And of course, the only person who would know that he was misleading the judge would be yourself, Your Honour - and me, of course; people who were at this trial - who understood that the motion that I had made to you, the motions, were always issue estoppel, and that I never raised the res judicata defence plea once. Now, Mr. Marin spent a lot of time telling the judge that this was - yours were rejections of res judicata defences after I had pleaded, and that's the basis of Justice Millette's decision, which is, if I had pleaded and it was a res judicata post-plea defence, then of course Justice Millette's ruling makes sense. And of course Mr. Marin was perfectly content to further that mis-impression on the judge's part. And then, after I had - well, perhaps since I did do this in the affidavit and it's well-structured, if I just read it, it shouldn't take more than 10 or 15 minutes and it will get my points out. On November the 15th, I raised my first special double-jeopardy plea in a pre-plea motion before Your Honour which were dismissed on November 26th. On February 25th, at the conclusion of the Crown's case, I once again raised the special double-jeopardy plea of issue estoppel having stood mute and thereby not having pleaded. My right to raise such a special plea at that point in the proceedings, which was acknowledged by yourself, Your Honour, but you dismissed the application. On March 18th, after the Crown had made its arguments against a motion for a directed verdict of acquittal, I once again raised objection by way of a special pre-plea double-jeopardy motion for issue estoppel. Once again, my right to raise such a special plea at that point in the proceedings was acknowledged by yourself when you heard and reserved your decision on the application. On March the 23rd, Your Honour ruled that the special pre-plea of issue estoppel did not apply and, as I had indicated to you that I wished to apply for an extraordinary remedy, Your Honour adjourned the proceedings to today, exactly 30 days away. THE COURT: Mr. Turmel... MR. TURMEL: Yes? THE COURT: ...if I can interrupt you at this point, was the purpose of the adjournment not simply for you to transcribe the tapes that you had from the proceeding in the Province of Quebec? MR. TURMEL: Partially, yes, though I remember, in the transcript, that I did mention to you that I was going to go, at this stage, on the issue estoppel motion, going to an extraordinary remedy at the higher court. I think I even mentioned certiorari. THE COURT: I don't recall that, but your memory is probably more accurate than mine. MR. TURMEL: Well, audio. But nevertheless, at that point, you said, "Well, fine, go right ahead," and whether it was luck or skill, it just so happens that I'm allowed 30 days to file this application for extraordinary remedy after the 23rd, when that 30th day happens to be today. So I mean, if it was a fluke that you gave me exactly the right number of days, after which I would be back here without any right to pursue such relief, fine; if it was on purpose, it's only another point in my favour. But the point is, I did, within the 30 days prescribed in the rules. An application was heard by Justice Millette for extraordinary and Charter relief on the grounds the question was reserved to the Court of Appeal by the identical nature of the facts, to the set of facts previously adjudicated by Judges Lennox and Fontana in 1989. As this was my first such motion for extraordinary relief, I failed to serve Your Honour the notice and, with such improper service of the documents, the motion was dead at the start. Even though Mr. Marin twice misled the judge on two issues, I didn't argue because the judge had other business to attend to. Not until the very end of the hearing did I get the chance to mention that I had never entered a plea, and, since there was nothing to be done anyway, I didn't try to go into the Wilson case to explain to His Honour - to explain why Your Honour had ruled on those two special motions after the trial had commenced. Now, the transcript of the Millette case, by the way - there's an interesting problem here, because if you take a look at the notice of motion of the Crown for the motion to have the extraordinary relief struck as frivolous and vexatious, it mentions that they used excerpts from Justice Millette's decision. Now, this was like a ten-minute motion with five or six pages of transcript, but it was packed with a lot of important information which, by selectively omitting certain parts, I'm sure the Crown was able to give Justice Desmarais exactly the same mis-impression that Justice Millette had. Now, when I went to the court yesterday to attempt to get a copy, just to see which excerpts in particular the Crown had used selectively to make their points before Justice Desmarais, I'm told by the clerk that, "Oh, they came and took the file away and now those excerpts are gone." Now, I wonder if the Crown would have a copy of the excerpts they showed the judge here, so that we can ascertain just how much of the six pages of the transcript was omitted and how much was retained, and, since at this stage the clerk can't find those excerpts, perhaps Mr. Marin would have a copy he could provide so that I could show the relevance of what statements he stressed and highlighted and what statements he didn't. Would that be possible, Your Honour, to ask Mr. Marin for a copy of the materials he filed before Justice Desmarais, which have been removed from the court file? .......... Did the judge get all of this? Is this the whole thing? So it's not excerpts; it's the whole transcript. Okay. Your Honour, if they handed in the whole transcript, then I don't have any objection to the questions of omissions, but I'm sure I would've preferred to put my own slant on the issue. Okay, so we have the Millette transcript here. And the transcript can clearly show - I don't know exactly where, because I have my own version - but it can clearly show the first thing Justice Millette wanted to establish was whether I had entered a plea or not, and Mr. Marin let him go on thinking that I had. Three times he referred to your rulings as rejections of res judicata. Now, I can go into the transcript and find them out on what page, here, but you can take my word for it, since it's not denied, that three times he told Justice Millette that you rejected res judicata rulings. Now, of course, Your Honour, I don't believe "res judicata" crossed my lips, and it certainly was never in any of the notices of motion that I made, and yet, to tell the justice that falsehood certainly would change the judge's point of view. Now, all of a sudden, he thinks I have filed a plea, I have entered a plea, and I have also entered a post-plea res judicata defence, when in reality it's pre-plea issue estoppel. "So one can understand Justice Wright's rulings on this." So he, three times, mentioned your rejections as res judicata motions to further cement the impression that this was an appeal of a post-plea res judicata motion, even though yourself, Judge Wright, is aware that it is an appeal of a pre- plea issue estoppel, an autrefois acquit motion. Now, "I understand that res judicata motions are defences to be made after a plea, and for that reason I've never yet raised it before Judge Wright, nor has Judge Wright ever ruled on res judicata." I will be raising it at the proper time, during final submissions, but I have as yet never raised it, no matter now many times Mr. Marin says I did. So it was the only possible reason Your Honour would've accepted to hear such unusual special pre-pleas after the trial had started, was because I'd stood mute, of course, and even though it may have only been used once or twice by Wilson and Turmel, because I do believe it's a rarely-used legal tactic, under the false impression that I had pleaded and that this was an appeal of a res judicata motion, everything Justice Millette says makes sense. Three times, Justice Millette noted that I could seek extraordinary relief if only I had not pleaded, three times evincing acceptance of the Crown's false premise that I had pleaded and that this was a res judicata motion after plea. Regardless, I knew it wasn't an after-plea res judicata, no matter how many times Mr. Marin told the Court it was. And even if this particular judge didn't get to find out the true facts, I knew it was an appeal of a special pre- plea issue estoppel motion and, as long as I knew I could return and do it right, I didn't have to contest the Crown at that time. I wasn't even going to bother objecting to those misrepresentations unless they were made again in a proper application. It turns out to have been a mistake. In order to show the technical flaws in my application, Mr. Marin produced the Mills case and several times referred to it as a model to show how it was supposed to be done right. So, in order to do it right, I ordered the application record, for the Mills case, from the City of London Supreme Court archives and received them two weeks later. On April the 20th, I filed and properly served a properly-drafted notice of application for extraordinary relief returnable on May 18th, 1994, within the prescribed 30 days, with the application record and factum to be served by May the 3rd, 15 days before the return of the application, pursuant to Rule 605(1)(a). This would leave me with 14 days to complete the application materials, including the ordering and preparing of transcripts. I also asked for an extension of time to deal with the earlier autrefois acquit issue estoppel and abuse of process pre-plea motions made earlier, so that all the issues could be dealt with at the same time. On April 20th, the Crown made a short-notice ex parte motion to Justice Desmarais on the grounds that Mr. Turmel has not shown a substantial ground for the order sought and that the matter is frivolous and vexatious. The material relied on were excerpts of proceedings heard before Honourable Justice Millette on the 29th, and the relief sought was an order summarily dismissing the application. Justice Desmarais ruled on March 29th, "Turmel made an application for an order of certiorari, which was dismissed by Millette, J. The application for an order of certiorari found in the present application is substantially the same as was before Millette, J. For the reasons enunciated by Millette, J., this portion of the application is dismissed." Justice Millette properly dismissed the application because it was dead at the start for improper service. If you thought he was also dismissing it because he'd been misled into thinking it was an appeal of a res judicata motion after I'd entered my plea, well, that's not my fault. His reasons for not allowing appeal against the post-plea decision on res judicata do not apply to this appeal against pre-plea decisions on issue estoppel and autrefois acquit. And in my notice of application, it clearly states that the extraordinary remedy so far sought is for autrefois acquit and issue estoppel. I have never yet made the defence of res judicata in any of my motions, though Mr. Marin never once mentioned issue estoppel and, every time, called it res judicata in his submissions to both Justices Millette and Desmarais, I'm sure. Unfortunately, it seems that the discrepancy between what I had written down and what Mr. Marin said I had written down, was not noted. So both these rulings, the Millette ruling and the Desmarais ruling, are based on Crown falsehoods. "And as the hearing before Justice Millette was only a ten-minute motion, with a five- or six-page transcript, one must wonder why Mr. Marin only gave him some excerpts." Well, that one we can skip, because we're told now he was given the whole transcript. Number 21 - no, skip that one, too. I just wanted to point out the advantage of failing to note or to point out to the judge, which I would've done had I been there, that at the very end, "John Turmel pointed out to the judge..." in this transcript, hopefully, that I stood mute. Yes, it says, "I did stand mute at my trial..." in their transcript, on page four. Do you have a copy of the transcript of the Millette case, Your Honour? THE COURT: No. MR. TURMEL: Do you have a spare one for the judge? MR. MARIN: No, we'll provide that. MR. TURMEL: Well, anyway, it does say here that I did tell Justice Millette that I stood mute at the very end of the hearing when it really couldn't matter. So whether Justice Desmarais noted that tactic or not, I'm not sure. I doubt Mr. Marin took the time to point it out, as I would have. But point 22, in a moment..... Point 22 is that the problem is that the Crown has used transcripts with those falsehoods and misinformed opinions as the basis of the dismissal of the application for relief you, Your Honour, gave me 30 days to seek. I played by the rules and I ended up getting defeated by the Crown, alone in a back room with the judge, and a transcript full of false information. I was prepared to ignore the Crown's false statements before Justice Millette, as they had no bearing on the truth the justice hearing my application in proper form would hear. But for the Crown to have taken those false statements to another judge behind my back, showcase them - you know? - all these false statements, and with no opportunity to respond, for me, smacks of malfeasance. Mr. Justice Desmarais further ruled, "The present application also seeks an order for prohibition. There are no supporting documents by way of evidence or otherwise as would provide grounds for the granting of such an order. The rules clearly state that the supporting documents are due 15 days before the return of the application and not due upon service of the notice of application, and since such applications are very rare, it would seem the learned judge simply erred in ruling that the supporting evidence was necessary at this stage, when it was only necessary in two weeks." So I don't know what more to say. I don't know how Mr. Marin got the judge to think that he needed supporting evidence filed with the notice, but you just have to check the rules to say that the learned justice erred. Number 25: Justice Desmarais further stated that, "The application for prohibition, unsupported as it is, cannot be granted. It smacks of a delay tactic to disrupt the orderly conduct of the trial. As a general rule, prohibition should be refused unless it can be shown the harmful consequences to the applicant clearly outweigh the delay and fragmentation of the trial resulting from the prohibition application." Now, Your Honour, I don't know what Mr. Marin told him about the urgency and the danger of the fragmentation of this trial, but I'm sure it was blown out of all proportion. "This is not the case here. The application for both certiorari and prohibition are both frivolous and vexatious." And of course, if this were an appeal of a res judicata, I'd have to agree with that statement. And of course, if that is how the Crown misled Justice Desmarais, well, then we understand why he ruled this way, that they're "frivolous and vexatious," if they were after the plea. "Given the urgency of the within application by the Crown..." Now, again, I think the Crown ought to tell us what was so urgent about this application that we couldn't wait 30 days until May 18th to have it heard. I submit there was no urgent need to avoid the prescribed 30 days, as prescribed in the Ruled of Practice, until the return of the application on May 18th. In July 1993, an opening for an early trial had been arranged for August the 12th by Mr. Edelson, my attorney, and it was the Crown who had it delayed. At my December 13th pretrial, when it came time to choose the dates of the trial from the dates throughout January and February of 1994, it was the Crown and the police who couldn't make it for most of both months, and an extra 50 days of delay seemed to be no problem at the time. To now shout "urgency" to avoid a 30-day delay for a legitimate motion to a higher court seems like wanting to have it both ways. Number 27: The real reason the Crown urgently wants my trial to proceed without right to extraordinary remedy is due to the cases in R. v. Booth, 1993, and R. v. Mazerolle, 1993, in Mississauga, two other Turmel-style games under indictment. Number 28: In order to avoid getting pinned on Section A, as in my case, they wish to keep their options open in case I win, and they can charge the others with some of the B sections. To those ends, the Crown has not only sought to accelerate my proceedings, but has also sought to delay the others. In Brampton Provincial Court, Mr. Mazerolle has been through three judicial pre-trial hearings where each judge refused to deal with motions for particulars each time, and the Crown was unprepared to deal with everything every time. After five months, absolutely nothing has occurred but the selection of a date. In Ottawa Provincial Court, in the case of a raid on Dave's Club Junction, where I was appointed agent for ten of the found-ins, I filed the motion on behalf of the found- ins, based on the following facts: On January 5th, 1994, the Crown, Mac Lindsay, had a first pretrial conference for the found-ins adjourned as the case wasn't prepared. By that time, I'd had my pretrial, and I'd found out about Section A. By the way, it was adjourned to January the 20th. Point 32: At the second January 20th, 1994, pretrial conference with Judge Lennox, two police officers, four attorneys for the keepers and myself for the found-ins present, Mr. Lindsay failed to come and it was adjourned to February the 2nd. The third pretrial, February 2nd, 1994, with Judge Lennox, two police officers, attorneys and myself present, Crown, David Stewart, came to have it adjourned again because Mr. Lindsay was preparing for another trial. When Matt Sagle sought particulars of the charges before the February 24th trial of John Turmel, it was suggested that he identify the information he was seeking in a letter. This he did, and the letter was sent the next day. The pretrial was adjourned to February the 18th, 1994. On February the 10th, Mr. Sagle received a letter informing him that Mr. Marin now had carriage of the case and wanted to put off the pretrial until after the February 24th trial of John Turmel. So what Mr. Sagle is asking for, particulars before the trial of Turmel, you know Mr. Marin is trying to get everything put off until after the trial of Turmel. The reasons become clearer later. And of course, not having been privy to those previous discussions with Lennox and the attorneys, Mr. Marin may not have been aware that that was the very thing the attorneys had been insisting upon: Particulars before trial. Mr. Sagle certainly could not consent to the delay. So, at the fourth pretrial, February 18th, 1994, with Judge Lennox, two police officers, attorneys and myself again present, Mr. Marin nevertheless did manage to put off pretrial discussion until March 4th by simply not showing up. Mr. MacDougall of the Crown's office did arrive to inform us he knew nothing of the case and could help in no way. Mr. Marin was aware of the pretrial hearing and Mr. Marin was not available. Mr. Marin's presence was requested and, as it was the noon hour and he probably wasn't in court, I went to the Crown's office with the message that he was wanted and I was informed that he was out to lunch. The pretrial was successfully adjourned to March 4th, after my trial. Mr. Marin had a duty to not be absent without good reason for the purpose of providing those particulars at that stated time, at all those pretrials. It is doubtful he was legitimately unavailable. The nature of his luncheon date could hardly have been of sufficient import so as to necessitate the adjournment of the proceedings of the Court to the inconvenience and cost of us all. It's further doubtful that he did not have time to inform the parties in the court that our pretrial hearing was going to conflict with his lunch. Important luncheon dates are usually well known, well in advance, while most short-notice lunches are usually so important. Now, if the Crown had chosen Section A, as in my case, they would not have the option of switching focus in mid- stream if their original focus is proven to be wrong against the found-ins and other keepers at that point. Had the Crown been properly represented even once to provide the particulars expected to parallel those in my case, a win at my trial would have ended this process. Without such a commitment, the Crown would still have the option of continuing on. It is of strategic concern to all the defendants in the Dave Booth case that the Crown not be successful in avoiding disclosure of particulars before my trial. Obtaining early disclosure is as important to the Defence as delaying that disclosure is to the Crown and is best shown by the measures the Crown has resorted to in order to delay such disclosure. Hiding from the Court is certainly not an acceptable Crown option, and that's what he did. He wanted to put it off, Mr. Sagle refused, and all he did was duck out, waste everybody's time. You know, fait accompli. "I'm not here; everybody go home." I think that should be reprimanded, frankly. I just find it hard to believe that Mr. Marin's luncheon date was an acceptable reason to send Judge Lennox and all of us home. Point 40: Mr. Sagle has had to attend three futile pretrials at Mr. Booth's expense, as well as communicate by letter, at Mr. Booth's expense, what failed to be discussed at each of those pretrials; that is, the Defence's express wish for particulars to be disclosed before my February 24th trial. I believe the lawyers are too trusting for the defendants' good. Though everyone realized the importance of getting those particulars, everyone meekly accepted that by tenuous, presumptuous, and finally unconscionably contemptuous ploys, the Crown succeeded in its purpose of evading all discussion of the evidence for over months, even though this involved permitting a whole court-load of people to attend a hearing Mr. Marin knew was futile without his presence there. Given the present record of obfuscation and delay, it would be a dereliction of my duty to the found-ins if I didn't try to provide them with the best defence. At the time, they were still under indictment and I therefore made my motions and pointed out the strategic importance of the disclosure of particulars before the 24th mandated my pushing for that information. Point 42: This is not the first delay tactic which has harmed my defence. When the transcript of my December 13th, 1993, pretrial was finished on January the 2nd, Mr. Marin appropriated it, and, despite my thrice weekly calls to the court reporters' office, I didn't get a copy till it's been almost three weeks in his office. On March 4th, 1994, the Crown withdrew the charges against all the found-ins, and the facts of all these delays and obfuscations never came to light. We're dealing with a question here of whether the immediate continuation of my trial is of such urgency as to deny me under 30 days to complete my application. I think not. And since the May 18th return date is under 30 days away, I see no reason for the Crown's hysteria over 30 days, as prescribed by the rules, after having personally delayed for at least 50 days - and more like 200 days - himself. I further submit that there was not sufficient urgency to disallow me from being given notice of a hearing while I was available and but a fax call away. Excluding me from the opportunity to be present was not only the height of unsportsmanlike conduct, but it also prevented the false statements and conclusions based on that misinformation from being explained to the judge. Making this motion on a Wednesday night without giving me notice, when there was all of Thursday available to give me the chance to defend my application against easily-shown falsehoods, was underhanded and unconscionable. This affidavit is made in support of an application for an order that the Crown be reprimanded for misleading the Court and an order that the Crown correct its errors and omissions by application to Justice Desmarais to allow my application for extraordinary relief to continue. Thank you, Your Honour. THE COURT: Thank you. I won't need to hear from the Crown. This is a situation where there is no application; the application has been dismissed. I obviously have no power to grant the relief which is being sought by the Defence. MR. TURMEL: Okay. I do have a certain time to file an appeal of that decision. I will do it, Your Honour. THE COURT: Well, at the present time, there is no application. The application has been dismissed; the matter has been remitted back to me to continue the trial. MR. TURMEL: Well, Your Honour, could I - well, again, I'm hardly in a position, after having had to work on this all night, and, of course, having prepared this application properly - it's taken a lot of work - as well as all of the Quebec transcripts - these things have been almost completed. A lot of my resources are still in Toronto, because I never expected this to happen, and, you know, I would request an adjournment to see if I can't correct - I mean, let's face it, Your Honour, there have been falsehoods stated here in court. I mean, is that because it's a different court, nothing's going to be done about it? You're the only man who knows that what he told the judge is not true. How do we go and tell Justice Millette it wasn't res judicata after the plea? That was false. Three times. I don't know what he told Justice Desmarais, though I've requested a transcript. But it's got to be the same thing. I mean, we've had a Crown who's misled the higher courts to pull off a coup which you now say limits you because you've now got the case returned to you. Well, (a), I do have the - because it was this type of motion - I do have the right to continue to further appeal, which I can do and will do, though I would prefer to make an application to Justice Desmarais, telling him the truth, and I would therefore appreciate the time to make such a motion, and I won't be ex parte; I'll speak in front of Mr. Marin, not behind his back, and I'd like the time to make a motion to Justice Desmarais, probably within the next week, and if not, I will then, within the rules, prescribed rules, file an appeal and see if I can possibly get my application heard that way. But at this stage, I don't have all my resources. I did work all night putting this together, detailing this series of facts which I was prepared to forget about. I was prepared to go in to a new judge, talk issue estoppel, and never raise the fact that he lied about res judicata unless he brought it up. So, you know, it's unfortunate, but given, you know, the time I spent on this other motion, I would seriously ask you to consider, you know, another short adjournment until at least May the 18th, if I can see if I can't get it back on schedule, on time, and again, I think that the Crown telling the judge that there was urgency here is - I just can't wait to see the transcript to find out what he said. But at this stage, you know, considering I'm operating on less than normal sleep, the resources aren't organized, that I do have transcripts from the four trials, where I intend to match up the 19 points that are identical in all of them - and I think that would be better done through a factum than actually physically going through it, to be able to point out that, "On page "X" of the first transcript and page "Y" of the second and page "Z" of the third and page "Q" of the fourth transcript, you'll find these same points." I mean, there's a massive amount of work and information to be digested and organized so that it can be presented quickly, and I just don't have the information assimilated at this point, nor do I have my resources here, and I still would wish the opportunity to try and continue getting this back before Justice Desmarais and correcting the misinformations he was given. But I just find it unfortunate, if the Court feels that you're bound by the fact that the application was dismissed, independent of whether it was dismissed on true facts or not, and I think that it shouldn't be - I should easily be able to get my information in before Justice Desmarais and explain the truth to him, see what he says, you know? I mean, over and over, Justice Millette said in the transcript, "If you'd only not pleaded..." Well, Your Honour, you know I didn't. So therefore, these misinformations and misinterpretations should be corrected and I don't think I should be denied my right to extraordinary relief, you know, given the 30 days you gave me to go get it, just because Mr. Marin managed to go and spread a lot of falsehoods while I wasn't there to correct them. It's just too much a case of Crown winning in a crooked way, and I think that it's starting to bring the administration of justice into disrepute. I think this has got to be corrected, and the only silver lining in it all is that it's going to be one of the best chapters in my book that's coming out. So, Your Honour, you know, due to physical reasons, resource reasons, and not wanting to spend your time, you know, in going over the massive complexities of the transcripts when a factum or a statement would be able to reduce that to a much shorter period, I would ask that the proceedings be adjourned until after May the 18th to permit me to complete my application, as well as my resource materials, and again, I just don't see any urgency or prejudice to the Crown's case in not waiting another 30 days to let justice run its course. And I do believe, once Justice Desmarais hears the truth, there is a chance he just may let my application go forward. So, on that basis, I request a short adjournment for the purposes as explained, Your Honour. Thank you. THE COURT: Thank you. Mr. Marin? MR. MARIN: Yes, Your Honour. With regard to my friend's submission, made by the accused, regarding the numbers of gratuitous and unfounded accusations, my only response to that, Your Honour, is that the accused is so far off in left field that it's not even worth bothering answering all the accusations. I should indicate to Your Honour firstly that I did fax to the accused, yesterday at noon, as I provided to the Court, the documents, a number of documents, including a ruling by the General Division Senior Regional Justice Desmarais, and just for the purpose of the record, I'll just give out the documents provided, Your Honour, and I'd ask that they be filed as Exhibit One on the application by Defence, an application to adjourn the case. There's the cover letter to Mr. Turmel, dated April 21st. There should then be a notice of application which was brought by the accused, Turmel, and filed, I should say, a day and a half prior to the reconvening, April 20th, 1994, at 3:25 p.m., with the Court, and it was filed, I believe, right after that. So it was the second document provided. The third document provided was a notice of application by the Crown in which the Crown made a motion, under the Rules of Criminal Practice in General Division, to not have Mr. Turmel's matter listed for a full hearing, to be struck off the list as being frivolous or vexatious and without grounds. Then, finally, a decision of Regional Senior Judge Desmarais of the General Division, in which, after looking at the documents and representations by the Crown, concluded that the application was in fact frivolous and vexatious. And I would note, Your Honour, that not only does he make that finding, but it goes even further. Sorry, those documents should be marked as Exhibit One, Your Honour; that's the first thing I would ask. THE COURT: Exhibit One for today's proceedings, not within the trial. MR. MARIN: That's right. EXHIBIT NUMBER ONE: Letter to Mr. Turmel dated April 21st, 1994; notice of application brought by Mr. Turmel; notice of application by Crown. -Produced and marked. MR. MARIN: At page two, line 14, Your Honour, the Court is fully aware of the status of this particular trial. And I quote, "The trial is scheduled to be reconvened for that purpose tomorrow (April 22nd, 1994). The application for prohibition, unsupported as it is, cannot be granted. It smacks of a delay tactic to disrupt the orderly conduct of the trial." He then proceeds by making some comments as to how serious a prohibition is. And of course, we rarely see these applications, Your Honour, but they are very, very serious because historically they were a way to take the case from an unruly Provincial Court judge. It's not because Mr. Turmel disagrees with some interlocutory rulings by the Court, but there has to be an allegation of bias, impropriety, something that's really worth a higher court stepping in and removing the file from a lower court. Justice Desmarais concludes, at page three, Your Honour, line six, "I am of the view therefore that the application is without foundation, frivolous, vexatious, and should be dismissed accordingly. The resulting decision is that the matter should be completed before Honourable Judge Wright and, following his decision, either party may appeal the result." There is a clear direction from the high court, Your Honour, that this matter should proceed and the Court - on all the application that's been filed with the Court, and on a review of the proceedings - concluded that it is a delay tactic. Now, the accused - and I won't bother answering the hours of submission that deal with all types of issues, Your Honour; I'd be on my feet till noon. Let's deal with the specific submissions made by the accused: After Your Honour made the ruling this morning, he indicates that he pulled an all-nighter and is not prepared to proceed this morning. Well, Your Honour, that's the excuse that was given last time. I have the information here. February 25th, Your Honour, was the second day of the trial, and Your Honour will recall that on that particular day, the trial abruptly concluded in the early afternoon or mid-afternoon. The Crown made its pitch, its submissions. Mr. Sagle made his submissions, very thorough submissions, and then - I should add, very unusually, because it's rare that an accused gets to make submissions after his lawyer's made them, but in any event, Your Honour allowed it - Mr. Turmel makes submissions, I believe lengthy submissions, if my memory is serving me correctly, and then there was a break in mid-afternoon, and then Mr. Turmel arrived saying he had another four to five hours of submissions and that he was unable to proceed. He was tired, and so on. And of course, I opposed it, and the Court also indicated that, if there was consensus among the parties, the Court would be ready to prolong proceedings and sit beyond the usual hours, and everyone was made available to proceed to allow Mr. Turmel enough time to finish his submissions. Now, Mr. Turmel insisted in maintaining his objection and Your Honour indicated that the accused should be allowed full time to make his submissions. The matter was adjourned and meanwhile another application was brought, March 18th, and it's very important, to put things back in context, Your Honour, to consider what was the nature of this application. The application filed and heard March 18th, according to the information, and I quote, "Take notice that, on March 18th..." Etcetera, "...there will be a motion for an order of staying the proceedings on the grounds that this court has no jurisdiction to be relitigating issues which have all been previously litigated between the two parties." So the Court cannot relitigate issues previously litigated between both parties. Now, that motion was made March 18th. Your Honour, on March 23rd, dismissed the motion. All right. Your Honour dismissed it March 23rd at 2:00 p.m. Your Honour will recall that it was a short ruling. Both parties had to be elsewhere. I certainly had to be elsewhere at 2:15 that day; I was in a General Division jury trial. Your Honour dismissed the motion March 23rd, and I should note parenthetically, Your Honour, that I certainly have absolutely no recollection, as the Court has, that the accused would have indicated his intention to bring a General Division motion. Be that as it may, the next day, March 24th, a motion is filed in General Division. Now, the motion, in my respectful submission, - and the transcript before Justice Millette will support my submission - the motion in General Division was, among other things, two points: An order for certiorari dismissing or staying the charge on the grounds that the doctrine of issue estoppel forbids the trial judge from contradicting Judge Lennox and Judge Fontana on the same set of facts. Now, if we pause here, Your Honour, it's worded differently, but it's the same thing. Whether he calls it issue estoppel, res judicata, it's the same thing. Your Honour makes the decision March 23rd; he doesn't like it. He brings an extraordinary remedy motion in General Division, which is wholly inappropriate and improper. Those motions are interlocutory motions made before the trial judge. You are the proper subject of an appeal if the unsuccessful party on the motion is also unsuccessful at trial and wants to appeal. Those are issues for appeal. That argument was made before Justice Millette, who agreed with it. The second motion that was made in General Division quotes a breach of the Charter of Rights, Section 2, 6, 7, 8, 9, 11(d), 11(h) and 12, which, if my memory is correct, was also presented to trial judge, yourself. It was dismissed, and then again it's brought on March 24th. Now, it's the Crown's submission, Your Honour, that this very motion, brought March 24th, is frivolous, vexatious, improper, and certainly the General Division had no jurisdiction to deal with it. And that was the argument that was put to Justice Millette and the argument which was accepted by the justice, and the motion was denied. Defence motion was denied. A transcript of Justice Millette's decision is in my hands... MR. TURMEL: Your Honour, I object. It's not a full transcript. They knocked out about a page and a half of text. So I want to tell you right now, it's not the full transcript. It was a lie. I have a tape. So let him not say it's the full transcript without objection. It's not. THE COURT: A full transcript of the proceedings or of the decision? MR. MARIN: Of the decision. MR. TURMEL: Of the proceeding. They skipped a page and a half. MR. MARIN: As in the normal course, Your Honour, when a decision is ordered for use in court proceedings, submissions of counsel are not completely transcribed. The court reporter - I asked - I made an order for a transcript of the decision of the Court and she provided a six-page typed transcript and she certified it as being a true and accurate transcription of the recordings, and certainly the Crown ordered the transcript as the Crown would in any proceedings, and not every word by counsel was made. And the reason why Your Honour even sees Mr. Turmel's name and my name in the proceedings, or you can see it in the transcript, is simply that Mr. Turmel was interrupting the Judge, and I was also responding to the interruptions. But we see here, "THE COURT, MR. TURMEL, THE COURT, MR. TURMEL," and that's the only reason you see Mr. Turmel's name and mine at one or two places in the six pages. In any event, Your Honour, the Court's decision was simple. The decision of the Court was, "Mr. Turmel, these are not proper subject matter of extraordinary remedy; these are subject matter - under interlocutory rulings, we will not fragment a trial, we will not delay the trial." And Your Honour, I will make this an exhibit because it's absolutely very important to this trial, in view of the submissions made by the accused. Mr. Turmel rises towards the end and he says, "I'm sorry for taking your time on a procedural error." Then, at this time - because of course Mr. Turmel was referring to the lack of service to Your Honour; with extraordinary remedy, you have to serve the trial judge if you're going to take the file away from him. -and of course the judge agrees, and then I further make the following submissions at the bottom of page 332, as the judge is leaving his seat in General Division: I say, "I'd like Your Honour - Your Honour's ruling is quite clear in this respect, and I want the accused to understand, it is that the Court has found not to be a procedural error, but the remedy would be an appeal." So it's very clear in Mr. Turmel's mind. We're not talking about form, procedure; we're talking about, even on the best face of it, you have no business in General Division. So I make it abundantly clear, interrupt the judge to clarify for the accused's mind, and the Court responds, "That is right." And then, I again reiterate that the proper procedure would be to appeal after the end of the trial if the accused is unsuccessful. The Court again, "That is right." And so that was as it stood, Your Honour, March 29th, 1994. And I will provide a copy during the break for the Court, because I would like this entered as an exhibit. MR. MARIN: So that is Justice Millette's decision. Now, almost a whole month passes by, and on the eve, or almost the eve, of the continuation of this trial, another application is brought, which is now part of Exhibit One, in which substantially the same motion is brought with a few different turns of phrase, and now we're looking at a prohibition on top of a certiorari - and what else? - but again, the same motion referring to all the Charter of Rights, and so on, which Mr. Turmel has had adjudicated... MR. TURMEL: With service. MR. MARIN: ...at trial and in General Division, and the Crown moved, on the basis of the situation which was made abundantly clear to the accused, abundantly clear, that there was absolutely no foundation for the application. And having it listed for May 18th, which is another month away, has the absolute inconvenience of fragmenting the trial. It means Your Honour could not have proceeded this morning, and the accused knows that. I mean, he keeps saying he's unrepresented, but he's crafty; he knows that. He knows that Your Honour could not have proceeded this morning. So the Crown had to move urgently if the Crown wanted the trial to proceed this morning as scheduled two months ago, or a month ago. But we've been two months now without making submissions. So of course, in making the decision, Justice Desmarais concludes that it smacks of delay tactic. He didn't agree with the decision of Millette and you thought, bona fide, that you could just relaunch it, which, in my submission, it was clear that you could not. But in any event, if you thought that, why did you wait till the eve of the continuation of this trial? So it's my respectful submission that the decision of Justice Desmarais is very clear that delay tactic is abundantly clear by the accused's actions in this case. And now, today, we were put in the same position as we were February 25th, where we're told of the all-nighter explanation, and I should indicate that the materials were faxed to Mr. Turmel yesterday at noon. The cover letter to Mr. Turmel that I submitted to him, the final line is, "Consequently, you should be prepared to proceed as scheduled with your final submissions tomorrow morning, as directed by the Honourable Mr. Justice Desmarais." So the accused knew yesterday at noon that his motion had been dismissed. "Be prepared." He knew two months ago. But just in case, he thought that perhaps his motion would've meant we're not proceeding this morning. He wasn't caught by surprise. He knew it yesterday afternoon, Your Honour, or at noon, that we were to proceed this morning. He was being directed by the General Division to proceed. So in my submission, Your Honour, having regard to the two months preparation time, to the whole day set aside today for Mr. Turmel's application, having regard to the direction of the General Division that this trial ought to proceed today, as directed - it's in black and white in the decision before the court, very clearly - having regard, as well, to the decision of Justice Desmarais, which is very clear - it's not a decision which dismissed summarily the accused's motion, matter to proceed - he makes reference, quite well articulated, to the history of the proceedings, concludes that the accused is indulging in delay tactic. And that's extremely important. Having regard to all those facts, Your Honour, the accused cannot say today that he's caught by surprise, he cannot say that he is unprepared, he cannot say that the court has not been fair with him in every possible way. At one point in time, the court must, in my respectful submission, take a firm stance and allow court process to proceed unfragmented and without abuses by the accused. And I certainly understand Mr. Turmel's here unrepresented today. Last time, he had a lawyer and today he's representing himself. But in my submission, taking all the proceedings in the context, every possible extension of fairness to the accused to prepare and to know what he had to face this morning was given to him. Now, whether he wants it postponed, delayed, whatnot, for any other purpose, my submission - now he's, on top of it, making his reason about the all-nighter - he also indicates that he wants to appeal Justice Desmarais' decision. Well, again, both Justices Millette and Desmarais told him, "If you want to raise these matters, they are to be appealed after the trial, and it's for that purpose, in my submission, that Justice Desmarais was clear that we are to proceed to trial. Direction to proceed to trial. So, in my respectful submission, it's much like - it appears very much the case, Your Honour, that Justice Desmarais was very much aware of the circumstances, and it's like Justice Desmarais may have anticipated that the Defence may be asking for postponement this morning, because it's very unusual to see a judge in the General Division actually order the trial to proceed downstairs on a specific date. I've seen it lately, an unreported decision, Your Honour, by the Court of Appeal in R. v. Bernier, the member of Parliament who brought a number of certioraris and prohibitions, and so on, for a period of time of three years. The latest one being unfounded, the Court of Appeal censured the accused and ordered the preliminary hearing to be conducted June 1st. So it's rare that you do see it, Your Honour. At one point in time in the proceedings, we have to start, and they have to continue. And it's interesting, as well, that Justice Desmarais noted that the application happens to be after the Crown's submission and in the middle of the Defence submission, which is also highly unusual for the Defence to bring such a prohibition, or certiorari, in the middle of proceedings, again indicating, if anything, a desire to fragment, to delay, and to postpone the normal course of justice. I'll just read my notes briefly, Your Honour. I've taken a number of notes, but some points I just will not touch upon. Very briefly, Your Honour, the accused seems to be very disturbed by the fact he did not enter a plea. I would simply, very briefly, make this submission, Your Honour: Under Section 606(2) of the Criminal Code, it says, "Where an accused refuses to plead or does not answer directly, the Court shall order the clerk of the Court to enter a plea of not guilty." So it's neither here not there whether he actually said "Not guilty," or refused to plead, or did whatever he did. We presume that it was a plea of not guilty and the trial was held. So when the court indicates - when the General Division court indicates that a plea was entered, whether it's entered de facto or presumed to have been entered, the trial has begun, and certiorari, and so on, or motions, or pre-trial motions - so it's neither here not there; it's totally irrelevant and a red herring. So to summarize the Crown's position, Your Honour, the Crown is prepared to proceed this morning. As I've indicated, the last occasion, the Crown's reply will be relatively short. The Defence has set aside a full court day, set aside all the resources, he's got the floor for his four to five hours, as indicated before Your Honour, and for all the reasons that are indicated, this matter should at this stage proceed fully and could be completed today, hopefully. At the break, Your Honour, I will be, with the Court's permission, filing as an exhibit a copy of two things: The original motion that was never served upon Your Honour in front of Justice Millette. It was referred to by the Defence as being, you know, misquoted and mis-aligned (sic), and I was accused of lying, and so on, so I'll be filing this. I'll also be filing, with the Court's permission, the - it's called "Excerpt of Proceedings," and it's probably what misled Mr. Turmel into believing that I had selected bits and pieces, but it is the ruling, General Division, of this motion. And that ought to complete the record with Justice Desmarais' ruling, Your Honour. I'll be providing that during the break. Those are my submissions. THE COURT: Mr. Turmel, anything further? MR. TURMEL: Well, Your Honour, can I have the transcript there? He's absolutely correct, Your Honour. In this transcript, not one of his lies is present. I mean, I look at mine and I notice that the parts that he cut out were the parts that were when he was talking about res judicata to the judge. Those are the parts that have been cut out. So, yeah, it's obvious that he went to Judge Desmarais and showed him this, none of the lies showing, that... THE COURT: Mr. Turmel, I've been extremely patient. MR. TURMEL: Yes, Your Honour. THE COURT: Mr. Marin has never taken personal comments towards you. If there are grounds for the accusations that you're making in respect of learned Crown counsel, I think there is an appropriate way to deal with those, but I would prefer if counsel and individuals who are representing themselves could conduct themselves in a more gentlemanly fashion and not resort to... MR. TURMEL: Well, Your Honour... THE COURT: ...to calling names. MR. TURMEL: Your Honour... THE COURT: I think it's really not warranted. MR. TURMEL: Well, he did besmirch my statement, you know, by pointing out that my accusations were so frivolous as to not be answered. And yet... THE COURT: Well, there's a difference between calling someone's submissions frivolous and calling them a liar. MR. TURMEL: Okay, I will simply point out that, yes, Mr. Marin - and there's also lying by omission. So I would point out that Mr. Marin is correct when he told you that there are no lies in this transcript, because he cut them out. I have them here. Now, I would like to read you... THE COURT: Well, I'm going to cut you off, Mr. Turmel. This is a situation where an application was brought before the senior judge of the General Division. There is an order dismissing your application and remitting the matter back to me for trial. I will hear submissions with respect to any further submissions you may wish to present in terms of any adjournment that would be necessary for the purpose of presenting evidence, but I can tell you that it is not a situation where this court has any jurisdiction to review the review by a superior court of this court. MR. TURMEL: Correct. Okay, well then, I guess my final submission would be for the time to approach superior court to make the corrections that I believe should be made in the record, and I can only say that I will request - I have requested a complete transcript, and why one page was chosen to be omitted - by the way, I must also correct another impression Your Honour was given, that this is a ruling of the judge. It starts with conversation with John Turmel. So it was not a pure ruling of the court; there's conversation with Mr. Turmel and Mr. Marin in here, and it just so happens that the portions where Mr. Marin was talking about res judicata were selectively deleted, and on the basis that I think the superior court should have a chance to find out that this was not res judicata, on that basis, I'd apply for an adjournment to try and correct the record in the higher court. Thank you. THE COURT: The application will be denied. As I've indicated in the previous ruling, this is a matter where the superior court has reviewed the applications, and, as of yesterday, the senior judge of the General Division for this region has directed that the matter be completed by this court. I'll hear your submissions, please. MR. TURMEL: Okay, could I have ten minutes to go pick up what resources I do have? THE COURT: Yes. MR. MARIN: Your Honour, I will provide copies to file as an exhibit. R E C E S S (10:20 a.m.) U P O N R E S U M I N G: (10:52 a.m.) THE COURT: Yes, Mr. Turmel, I'll hear your submissions. MR. TURMEL: Okay. Do you have the agreed-upon statement of facts, Your Honour? I'd like to start with it. THE COURT: Mr. Clerk? CLERK OF THE COURT: Yes, Your Honour. MR. MARIN: Your Honour, I indicated to the Court in my submissions that I'd be providing documents to be filed as Exhibit Two. THE COURT: Yes. MR. MARIN: During the break, I've had those reproduced. There's a thick document which was the motion that should have been served on Your Honour. The first motion in front of Justice Millette. The second document is Justice Millette's decision. So there are two documents. If they may be together set as Exhibit Two. THE COURT: Exhibit Two in the application and not as part of the trial. EXHIBIT NUMBER TWO: Motion before Judge Millette; Judge Millette's decision on the motion. - Produced and marked. MR. TURMEL: Your Honour? THE COURT: Yes? MR. TURMEL: Could I include the complete suggested transcript? THE COURT: Mr. Marin? MR. TURMEL: Well, Your Honour, that is not an official transcript. If Mr. Turmel wants to order one and add it at a subsequent date, I have no difficulties with that, but I haven't read it, I haven't checked it. He's not a court reporter. It may be his best reproduction. If he wants to order a page or two that he purports is missing from the decision, I have no difficulties with that, but I prefer it to be done through the court reporters' office in due form, Your Honour. THE COURT: Yes, Mr. Turmel, I think Mr. Marin is correct. There is a recognized procedure for filing transcripts. MR. TURMEL: Okay. THE COURT: I recognize that you have been preparing transcripts for your own use, but for court use, there is a procedure. MR. TURMEL: Okay, so I can file the complete transcript, then, of that, here, when I get it? THE COURT: If you wish. Actually, there are two - there should be another - oh, they're put together; that's right. MR. TURMEL: Okay, do we have a copy of the agreed-upon statement of facts? THE COURT: I do. MR. TURMEL: Okay. Now, my first point, the first issue I have to raise, is the issue of the report of Officer Joe Fotia to the Nepean Police. I do note that within his report, Officer Fotia did make the statement that he came in and he watched the poker being played, where I'm an habitual gainer, and found that there was nothing illegal going on in the poker. So we have a problem here. We have Sergeant Fotia's report which indicates that there are some kind of gainings at cards that are legal, and unfortunately Your Honour didn't have that information, and I wonder if the Nepean Report could be introduced as an exhibit, because I think there is some exculpatory evidence in there, and... THE COURT: All right, what you're referring to, then, would be, I take it, some of the notes which were discussed at the last court appearance? MR. TURMEL: Yes, the one previous, where we were talking about the notes, Officer Cleary's notes, and the missing report from Officer Fotia to the Nepean Police. THE COURT: Which report, I take it, then, is not before the Court? MR. TURMEL: I..... MR. MARIN: No, it's not. THE COURT: Is that a disputed fact, Mr. Marin? I realize this is unusual in that the evidence has been put before the Court and that we are now at the submission stage, but is it a dispute, as Mr. submits, that the poker game was going on and the observation is that there was nothing illegal with respect to the poker game? MR. MARIN: I'm not sure exactly what he's referring to, and I haven't seen it, because the notes of Fotia pertain to a whole other location that has no bearing on this case, and so he made specific requests directly to the officers and I have instructed them to give to Mr. Turmel whatever he requested, but I have no idea what he is referring to. The officer indicates it's not even the same location. I certainly dispute anything that goes beyond the evidence of this court, because Your Honour will recall, February 25th, upon the Defence choosing not to call any evidence, relying solely on what was before the Court, I indicated that it was solely their choice to run the defence the way they wanted to, but to not try to enter facts later in their submissions, and that's exactly what's happening. I have no idea what he's referring to, but I would submit that Mr. Turmel should rely on the facts that have already been agreed on and filed in one shape or another, and we leave the matter at that, Your Honour. MR. TURMEL: Well, I mean, yes, that is so, but then again, this particular item had not properly been disclosed, and that was the reason I asked for it. And, you know, if it could be produced now, I think Your Honour would note that the officer - and of course, when I had him on the stand, if I had known about this report, I would've delved into the issue of that particular gaining at cards not being illegal, and I wasn't given that opportunity. THE COURT: All right, the notes that you're referring to of Joe Fotia, who was the OPP officer who had attended, if I recall correctly, undercover, in an undercover capacity, at both... MR. TURMEL: All three locations. THE COURT: I recall his evidence in respect to two locations, but... MR. TURMEL: True. THE COURT: ...but I stand to be corrected. I haven't... MR. TURMEL: No, you heard... THE COURT: ...extensively reviewed the materials, which I would do after submissions, but what report - or in relation to what location does the report refer to? MR. TURMEL: The report refers to the location where I was playing during the period, February 25th to February 28th, in the indictment. THE COURT: All right, and you're indicating that that material indicates that there was nothing illegal about the poker game being played. MR. TURMEL: That's right. THE COURT: All right. Mr. Marin, I would agree with you with respect to the - obviously the usual procedure is that the evidence is called and then the submissions are heard after the evidence and not the other way around. However, I do have some concern if, in fact, there was some disclosure which was not provided to Mr. Turmel and if he was in some way prejudiced or disadvantaged as a result of that disclosure not having been provided at the time when the evidence was... MR. MARIN: If I could just have a moment to speak to my officer, Your Honour. THE COURT: Yes. MR. MARIN: I'll try to clarify some things. .......... MR. MARIN: For the time being, Your Honour, I'll take this position, that I won't object so far. I'll let Mr. Turmel make his point and if I see that there's something objectionable or some conclusion that he's drawing that - I mean, so far, in my submission, it's not relevant, but in any event, I'm prepared to let him proceed at this stage, Your Honour. If I have an objection, I'll rise at the appropriate time. THE COURT: That's fine. If you'd proceed, Mr. Turmel? MR. MARIN: So I'll perhaps, for the record, let it reflect this way, Your Honour, that the Crown is reserving objection till the end of these submissions, and we'll see how he refers to things, and so on. I don't want to be interrupting him, because it's disconcerting, but I'll simply reserve my objections till the end of his submissions, if I have any. MR. TURMEL: Now, his objections are being reserved to what, now? That the poker winnings were not illegal? THE COURT: What's being suggested, Mr. Turmel, is that you make your submissions in the way that you would otherwise make them. As I indicated, in a trial, as you know, the evidence is called first, and then the counsel or parties make submissions with respect to the evidence which the Court has heard. And if that was all there was to it, I wouldn't be entertaining the discussion that we are now, but there's the complicated factor in that there was apparently some issue of disclosure. I don't know what that was. I don't know what the evidence is, other than what has been put before the Court, so I'm at something of a disadvantage from both yourself and Mr. Marin. What the Crown is indicating is that, rather than be disruptive or break your train of thought, if you simply present your submissions, if there is some issue which the Crown wishes to object to, they will raise it at the end of your submissions, and then we can deal with it. If there isn't, then that's fine. If there is, then it may be an issue which has something to do with disclosure, it may be an issue which has to do with something else. MR. TURMEL: Well, I can spend no time on the issue if Officer Fotia's statement in the report is accepted. I won't even bother going into legal poker winnings... THE COURT: No, what's being suggested, as I understand from your friend, is that you simply make your submissions as you were planning to, and if there is some issue of objection which the Crown raises, you'll have an opportunity to respond to that afterwards. MR. TURMEL: Can I talk about the Fotia statement as if it were accepted by the Crown? THE COURT: You can talk about anything you want, and what your friend is indicating is that he will indicate if there are any objections at the conclusion of your argument. If there are none, then that's fine. If there are, then I will give you an opportunity to respond to any objections. In other words, what Mr. Marin has suggested is that you not put before the Court evidence, that you not present evidence in your submissions, that you not tell me things which should have been presented to the Court either by way of the agreed statement of facts or by witnesses. MR. TURMEL: Well, that's right. The only reason I raised this one was because of the disclosure issue. THE COURT: But I'm just simply indicating to you, if there are other issues, simply proceed as you were planning to do and not be concerned with the usual procedure that I - I'm not - what I'm - I'm not being very clear. What I'm attempting to do is not cut you off. Although I've indicated that the usual procedure is that the Court will not entertain evidence in submissions, it may be that because of the issue involving disclosure, or it may be, as Mr. Marin has indicated, that it may not be something that is relevant in his view, the Crown is not going to take any objection to your presenting evidence in your submissions. MR. TURMEL: Okay. THE COURT: If there is something to which the Crown does object, that can be raised by the Crown after you've made your submissions so that you don't have to concern yourself, while you're making your submissions, with being interrupted or having to address or respond to any objections which the Crown may have. If there are objections, we'll deal with them afterwards. MR. TURMEL: Okay. THE COURT: Does that make sense? MR. TURMEL: Except how much time I spend on whether all winnings are gainings or whether some winnings are not gainings is going to be affected by the ruling on whether Fotia's report is accepted, is relevant. I mean, Joe Fotia - I mean, the Crown is arguing that all winnings are gainings. Joe Fotia, the prime witness, says that certain winnings are not gainings. Now, that's not in evidence because they didn't give it to me, and that's pretty primordially important. So that how much time do I spend on that... THE COURT: How much is there in terms of - and keep in mind, other than what you both tell me, I don't know anything. MR. TURMEL: How much is in this report? Almost nothing. Just that one statement that he saw nothing illegal about the poker game going on, the poker activities. Now, they've got it, they could admit it, and we can go on. THE COURT: All right, are there any other issues arising from the matter of disclosure, other than the one comment that you've just indicated? MR. TURMEL: Well, short of missing records in the data-base files, missing fields, which are primordial, no, that's the major one, the Nepean Police report. I mean, postal codes, things like that. In other words, the disclosure, electronically, wasn't complete. The disks didn't have all the information, but, you know, it was not of major import, these fields that were missing. But it was the Nepean Police report upon which I'm really basing this argument and nothing else is objectionable. THE COURT: All right. Mr. Marin, I don't want to put words in your mouth, but would it be... MR. MARIN: No problem, Your Honour. THE COURT: Would it be unfair to suggest to Mr. Turmel that he proceed, for the purposes of his submissions, as though that evidence were before the Court? MR. MARIN: Yes, Your Honour. There's no difficulty. THE COURT: Is that what you were saying? MR. MARIN: I'll make this concession: Had Sergeant Fotia been confronted with that statement... THE COURT: Yes. MR. MARIN: ...from his notes, I'm pretty sure that he would've accepted that statement as truthful under oath. I'll have some comments as to the weight to be given to that statement, but if Mr. Turmel thinks that's important to his case, I'm prepared to concede it right now. THE COURT: Thank you, Mr. Marin. There we go. MR. TURMEL: Okay. Now, Your Honour, the theory of the Defence is that all the facts reside within the agreed statement of facts. Now, I have - and I produced for the Court at the pretrial - I hope it's an exhibit there in the file - an agreed- upon statement of facts from 1989. Is that statement of facts the 1989 one? Well, which agreed statement of facts, Your Honour, do you have? THE COURT: I have two documents which were indicated as the agreed statement of facts. One is a document - they're both together labelled as Exhibit Three. The first document is a short, one-page document entitled "Undisputed Facts as Taken From Transcript Dated December 13th, 1993, With Amendments Which I Have Made on Consent in Relation to the Bank Accounts." MR. TURMEL: Oh yes. THE COURT: And the second document, entitled, "R. v. Turmel, Undisputed Facts Between the Parties." MR. TURMEL: Okay. THE COURT: And those are the two documents which collectively I have taken as Exhibit Three. MR. TURMEL: Okay. THE COURT: And which I understand together form the agreed statement. MR. TURMEL: Okay, if we can go to that one, to the Undisputed Facts Between the Parties... THE COURT: Yes? MR. TURMEL: ...I would point out that, if we go over them, the first fact listed there states that, "Between the 27th day of February and the 14th day of November, John Turmel rented a room at Baxter Road, called Turmel's Games Room." THE COURT: Yes? MR. TURMEL: I did submit that as an agreed fact - that I rented several units at Casino Turmel at St. Laurent Boulevard. Now, at point three, first of all, I would point out that in the 1989 agreed-upon statement of facts before Judge Lennox and Fontana, those points were made, that the addresses were accepted in such a way. Now, point two of the 1989 agreed statement of facts matches point three of the one Your Honour has. The numbers were changed for some reason. And point three is that, "Mr. John Turmel's purpose in renting the Baxter premises in the St. Laurent premises was to enable the playing of games such as blackjack and poker." So that's an admission and that admission matches number two in the '89. Admission number four, that, "Mr. John Turmel had agreed to lease the Baxter premises for $500 a week and the St. Laurent premises for $2,500 a week..." Which mentions the 1989 one, which mentions that I was renting the premises at the Bayshore Hotel too. Point five of your statement is that, "Mr. John Turmel had agreed to lease the..." Oh, sorry, point five, "...purchased and personally owned the chairs and professional-style folding game tables of the two above-noted premises..." And that matches point four from 1989, so they are identical. Point six, that, "...food and non-alcoholic beverages were served to the patrons free of charge." Yes, that's the same as the 1989, word-for-word. Seven, that, "...invitations to attend Baxter premises and St. Laurent premises were sent by mail, further advertisement in the print media..." And in the 1989 one, well, there were no - there were invitations mailed out and they were produced at that time, too. Eight, that, "...the public at large was invited to play and..." In 1989, it was point seven, that the public at large was invited to play - oh, sorry, they weren't. It was private people invited by invitation. Now, point nine, I admit that I or my employees would act as cashiers, which is matched by the same words in 1989, in point eight. Here again, in point ten, that, "...John Turmel or his employees would be at the Baxter premises 24 hours a day for the purpose of playing games, blackjack and poker." Same statement exactly as in 1989. Finally - well, not finally, sorry - that, "...no fee is attached to attending the premises..." And again, that was the same statement drafted by the Crown in 1989. "...that a patron could buy into the games at $200..." And again, that was the same statement that was made in 1989. Now, at this point, point number 11, in 1989, that, "...over a period of time individuals came to play, thus establishing that a game had in fact taken place..." Was objected to by the Crown and they dropped that part from this particular statement of facts. Okay? So they dropped the part where I admitted that we actually did play. Gave them a chance to prove it. Number 13, that, "...a possible blackjack bid had a maximum limit of three hundred and a minimum of five." In the 1989 case, it said, "...a maximum of a hundred, minimum of five." Identical wording. Point 14, over here, which was 13 in '89, says that, "...the games were played with poker chips sold by the cashier in denominations of $250, $525, $100 and $500. The patron could pay by cash or by cheque." And again, it was the same as the 1989 statement. I mean, I framed the words exactly on purpose. And luckily the Crown retained the order of the words so that the match between now and '89 happens to be quite perfect. Point 15, that, "...the blackjack game at the Baxter premises and the St. Laurent premises was based on Atlantic City blackjack..." And of course, that statement was made in '89, same thing. "...that the game of blackjack, Turmel-style, offered the player extra options and the right to be the banker-dealer..." And at this stage, I don't believe they included that point. Oh yes, they did, number 16. So they're the same. Number 17, that, "...the game of cards were dealt from a shoe which contained eight decks..." Same admission as '89. Number 18, that, "...the rules of the game were posted on several walls entitled, 'Turmel's Blackjack Rules...'" Same as 1989. Now, number 19..... Now, this is interesting because these were drafted by the Crown in '89 and objected to by the Crown in 1993. And in 1989 - now, you'll notice here you have that, "...if a player chose to become the dealer-banker, the player would leave the table if there were more than one player present, or stay at the table and all other players would leave the table. The player could only become dealer-banker against Mr. Turmel or his employees." Now, in the agreed statement of facts, I proffered to the Crown and - which had been modelled on the '89 statement - and actually said that, "...the players could play the game at the main table where the dealer-banker would be Turmel or his employees or agents..." Slightly similar, "...but the bank was always kept by Turmel or an agent where there was one or more players, and that at any time a player could decide to become the dealer-banker if he so chose. The player would then leave the table and, if at the time there was more than one player present, he would stay or the other players would leave the table. He'd become the dealer-banker, put up the bank against only Turmel or his agents or employees." That was the explanation of how the rules worked, given to Judge Fontana and Judge Lennox and that part was omitted from this one. 19(3), that, "...if other players were present at the time, the main table would continue playing with Turmel or the Turmel agents or employees keeping the bank, that a player could not be the dealer-banker against any other player. If a player chose to become a banker, the house rules were such that he was entitled to bank and deal a shoe of cards against John Turmel, or one of the agents, only, and play a one-on-one game in which no other players were allowed to play." And finally, 19(5), that, "...if a player wanted to bank a game against other players, they could go elsewhere, but not Mr. Turmel's room." Now, that was severely savaged. A lot was dropped there in the suggested statement that you have before you, but it was added at a later date. Now, point 20, here, that, "...if the players were present..." Yeah, that was covered, And finally, point 21, that, "...that Turmel did not permit other players to bank," Was partially covered in point 19. So what I did was I took the 1989 statement of facts. I perfectly modelled it on the 1993 statement of facts, word-for- word, the only differences being contextual ones like the address, the date, the number of people who came to play. Other than that, it was absolutely identical, 19-for-19 points. Now, and of course, from the transcript, we have the undisputed facts, as taken from the transcript dated December 13th, where the Crown points out that I admitted that I was in the business of gaming, which I've always claimed; admits that I'm the keeper of the premises, which actually was in the agreed statement by the fact that I admitted to renting the place; that I had control of all bank accounts, which was certainly admitted, "Mr. Turmel admits the game of blackjack and poker are games of chance and skill." Yes, those are certainly admitted. "The Crown advised the Court he will proceed with the common betting house charge and will rely..." Well, the Crown has withdrawn that one now. "And the Crown must prove the place is kept for gain." Now, I complained to Judge Lennox and went back for a second pretrial. Do you have the transcripts of those pretrials, by the way? Are they made available to you? THE COURT: Not unless they've been filed as an exhibit, no. MR. MARIN: No, they haven't, Your Honour. MR. TURMEL: Well, is there going to be any difficulty - well, put it this way: If there were going to be a difficulty with statements I made, based on the transcript, can the Crown do the same thing? Object to it and we'll decide whether such information given at the pre-trial could be perhaps entered, or could I produce those transcripts for Your Honour at some point and get them in? THE COURT: Well, the difficulty I imagine your friend - unless there was some agreement between the parties evidenced by the transcripts as to the facts - the difficulty is, at the pretrial there would not normally be any evidence heard, and what would likely show in the transcript would be submissions of some sort. MR. TURMEL: True, or admissions. THE COURT: Or admissions. MR. TURMEL: Or admissions. THE COURT: What is it specifically that you wanted to put before the Court? MR. TURMEL: I'm sorry, I forgot where that was leading to. THE COURT: All right... MR. TURMEL: But nevertheless, on the... THE COURT: ...we can come back to that. MR. TURMEL: ...on the 13th, at that time, I had handed in the agreed-upon statement of facts and the Crown had not sent me back this one here, where they deleted three or four points, and because, for other reasons, they had not pared the witness list and they had not produced the agreed-upon statement, and a whole bunch of undertakings hadn't been done, I made another pretrial motion to the judge, and pretrial hearing, where at that point he urged the Crown to get on with the job, and so they did. Then I got another fax back from the Crown's office indicating, on the day before the trial, that they had accepted the last four points that they had originally omitted. So we are dealing here with a case of 19 facts to 19, absolute congruence in the number of facts. So I hope there's no disagreement here that we're dealing with the same set of 19 facts. Now, my purpose is to show that there was nothing introduced in evidence at this trial which was not introduced at the other trial. Now, given we have the identical statements of agreed facts for both those cases, we now have to sit here and contemplate, and I have to figure out, just what it is the Crown has presented to Your Honour that's new. And for that reason, we may have to go over the transcript, but there would be an easier way. If the Crown could give us a hint, right now, as to what facts the Crown thinks are different from 1989, it would help save me having to look through the transcripts, pointing out all the similarities, looking for a difference. My contention is that there is no difference. The information given Your Honour in the trial was, you know, though voluminous, lots of it had little to do with evidence relevant to the issue of whether it was a gaming house. All the banking evidence was certainly relevant to their initial charge of a business of betting. And I can see all their work for that purpose when the charge was still on the record, but all that banking evidence has absolutely nothing to do with the issue of whether or not the players were victims of a gaming house. As Judge Fontana ruled they were not a gaming house without contemplating such evidence at all. Now, we have absolute congruence between the 19 points of fact in 1989 and the 19 points of fact now, and - am I mistaken, Your Honour? - but I don't believe that there is a difference, and if there is, I'd be prepared to meet that difference, meet that point, but I don't believe there's a difference between the two games to meet, and I am just wondering what - I still haven't determined what the Crown is alleging, went on differently, to now make this a gaming house where, before Judge Fontana, it was not. You know, can Your Honour in any way help in this point, at least steering me to a difference which I can handle? Because if there are no differences, I shouldn't be here. So, you know, I hope I'm not being thick, but I still don't know what difference I am supposed to be challenging here. If you'll contemplate that throughout the discussion of this there have been two sources of winnings. Back in the 1991 case, there were claims I made $60,000 playing blackjack and $20,000 playing poker. Now, again, there was no question of the poker winnings in 1991, and again, pursuant to Officer Fotia's reports, there shouldn't be any objection to my winnings in 1993 at poker. Now, if the Crown's contention that winnings, per se, are gainings, so that where I'm trying to win the case, he's trying to gain the case, and where I think I'm holding the winning hand, he thinks he's holding the gaining hand, or the gaining cards, or he went to the baseball game last night and his team gained, frankly, Your Honour, the Crown has gone to the Quebec judgment of Judge Bonin (ph) and I think he's asking you to come to the same misinformed, unfortunately, conclusion as Judge Bonin, and all you have to do to do it is give your judgment in French. And if you can close your eyes to the fact that winning and gaining are two different words and you can close your eyes to the distinction between the two, like every French judge has those eyes closed by the fact that there's only one word for the two, we can see that what Mr. Marin is asking the Court to do is to be as limited in scope as the Quebec court was. And yet, unless Your Honour has genealogy I don't know about - it doesn't sound like you're French - you'd have no excuse coming down with a decision in French just so you could confuse winnings with gainings, like Mr. Marin chose to do. In his submissions, you'll note that he didn't use the word "winnings" once. I mean, there were profitings at cards and there were gaining poker hands and there were benefiting plays at the table, but never winnings. And again, you just can't ignore something - you just can't take away the essence of something just by giving it a different name, like Mr. Marin has done. And of course, Mr. Marin being French, he has a greater facility with stepping into the French language and becoming confused, as the Quebec judge did. But I would point out that Judge Bonin - and I will go over his decision in more detail later - is the first judge in all of Canadian history, and either he's brilliant or he's not, to have gone against all the jurisprudence Mr. Sagle pointed out last time, where Section A applied to commercial gains. Throughout all of Canadian history, Section A has been applied this way. And of course, when it came up before Judge Fontana, Judge Fontana didn't know that two years in the future some French judge was going to misconstrue all these things because he didn't have two words, and Judge Fontana went along with history. And two years later, we have the French judge limited by - and of course, trying to understand or differentiate between two concepts when you have one word, is as difficult as trying to solve two variables with only one equation. From grade nine algebra, one remembers that if you have one unknown you need one equation. Two unknowns, two equations. And you can be totally confused and never solve two unknowns with only one equation. Similarly, an English judge - sorry - if you have one concept, you need one word. If you have two concepts, you should have two words. And that would explain why Judge Fontana could find trivial what Judge Bonin, in Quebec, could never hope to resolve. Just like the man who has to solve two unknowns with one equation. No way in the world you could qualify Judge Bonin's decision in the same category as Judge Fontana's and Judge Lennox's decision. The English judges were possessed of a superior vocabulary available to them which allowed them to differentiate and understand my argument. And Judge Bonin, limiting himself to French, where there was only one word, had the rational explanation to totally misunderstand everything I said. Mind you, the judge did understand English, so he certainly heard me use the word "win" versus "gain" several times, even though his decision failed to note that difference. But I'm saying, we have here this one case in all of Canadian history, by the French judge, who doesn't have two words to differentiate between what I contend is legal and what Judge Fontana found was legal, and what the Crown is contending is illegal. Now, there were several other things that would tend to bring the decision of Judge Bonin into disrepute or less esteem or regard than that of Judge Fontana. When I presented my submissions to Judge Fontana for directed verdict, he was given a whole bunch of case law and took a week to read it. Now, these were cases of the Roberts decision, the Hing Hoy (ph) decision, the Hung Gee (ph) decision, several decisions which were dealing in those days - because I was charged under the B sections - with different ways of avoiding gaming illegalities, and therefore, Judge Bonin, when I asked at a certain point for particulars of the charges, refused. Now, I would point out that in my cases in Ontario, when particulars were asked for, they were immediately granted. I would further point out that, even though I had sought particulars on numerous occasions - once even going to the Superior Court of Quebec to ask, where Justice Frenette stated quite clearly that he thought, because "gaming house" had five definitions, that I should have been given particulars - despite that, despite a superior court ruling, Judge Bonin just ignored it and refused to give me particulars. Now, I mean, I just wish that Judge Bonin were as respectful to the superior courts as you have been this morning, Your Honour. But in that case, Justice Frenette was very clear. I should have been given particulars to focus in on what the attack was, and I wasn't, and I asked the judge for those particulars, for those reasons, and he said no. Now, I therefore spent the whole day - and the transcripts can show, once they're printed - that Judge Bonin, who had been asked and pointed out that every witness got on the stand because there were no particulars. I asked them about all five sections. Repeatedly, you'll see witness after witness after witness was, "Did you see any sales, did you see me take a rake, did you see me charge a fee, did you see the bank excluded, did you see me have an edge someone else didn't have?" And I asked all five questions to every witness all day long. And that was it. Now, the next day, I made another motion to the judge for particulars. I pointed out how much time I'd had to waste talking about a rake-off at poker with every witness, having to defend against that possible interpretation because there were no particulars, and I again asked for particulars because I just didn't want to waste more time spent talking about that. And once again, Judge Bonin refused. So you have Judge Fontana and Judge Lennox, who are looking at the charges in English in a focused way, and you have Judge Bonin in Quebec looking at it in French and trying to keep it as unfocused as possible. Now, you have to understand, it may have something to do with the French - I don't know - but as for the betting house charges, I would just point out that after the Crown had closed their case, with absolutely no evidence of betting house charges, I then made a motion to the judge to quash that charge because there had been no evidence of it, and I point out that the judge insisted on making me put on a defence to the no-evidence of betting house. I would point out that "betting house" happens to be such a ridiculous charge that even the Crown in this case, after repeated pointing out of the improper link between betting and the play of cards, finally withdrew those charges. Okay? I mean, this is such a zero - of course, Judge Lennox told him three, four, five, six, times how it looked bad, and "You're really going to give a judge this information and call it betting?" And they finally dropped it. But I would point out that even though this is pretty obvious to the average person who can read the Pilon case, a Quebec case in French, that the judge still didn't see it in Quebec. He still made me put on a defence to charges that this Crown now admits were baseless. So you have to understand, this was a rare case - I've been involved in a few rare cases - a rare case where normal rules did not apply, and though the facts were identically the same, identically the same, Judge Bonin just chose to rely on the possible misinterpretations of the French language and the fact that he'd refused to focus in in any way, and from a far less clear point of view than Judge Fontana ever had and that Judge Lennox ever had, he came to this historic conclusion that winnings are gainings. No distinction between poker and blackjack, just as there's been no distinction between poker and blackjack gainings here. We know that my poker gainings, according to Officer Fotia are not illegal - and he said it right there - and yet, the Crown is now trying to tell you that my gainings are illegal, independent of anything. "He made money; he financially stood to gain," which I do whenever I sit in a poker game, and yet we have the Crown's own witness stating that this particular set of winnings of Turmel are not illegal. I mean, right within the hidden report, we have the statement of the officer contradicting the Crown's prime premise that any gainings are winnings and that this was a place kept for gain, whereas I claim it was a place kept for "win." Now, that the Crown would go to the Bonin case to choose to try and have you overrule the Fontana and Lennox decisions, is I think shocking. Lennox and Fontana are your brother judges, in your court, and I believe that their rulings should weigh far more on you than the rulings of a provincial court in another province, especially from a one-word province, given the discussions that are going on in this case. Now, the Crown has accepted that there was no "GST-able" commerce, and I have gone over for Your Honour several times the fact that Judge Fontana had stated that Section A dealt with only sales, that if you didn't sell anything, Section A did not apply. And I think that was pretty clear. Now, the Crown would have you come down with a ruling which says that Judge Fontana was wrong when he said Section A was only sales because he didn't have this Crown, in 1989, to correct him and point out that Section A could be anything at all. "If we can't nail them under B, winnings under B, let's nail them under A." So anyway, Judge Fontana did clearly state that Section A did not apply because it dealt only with sales. Before I get into my case law to back up that point, I want to go into the Lennox transcript which I believe Your Honour was given a copy of. At the last trial, just before we were leaving off submissions, I gave Your Honour a copy of the trial from the Lennox case. This is the trial that Crown didn't know about, where the officer had come and given evidence before Judge Lennox, when he dismissed those charges. And I'm sure I handed in a copy because I turned to the Crown and said, "Do you mean you charged me without having this transcript?" That's the one I'm talking about. Is that in the file up there, Your Honour? THE COURT: No. If have the decision, it would be with the authorities that were provided by both - off the top of my head, I can't tell you whether or not I have that particular decision... MR. TURMEL: Well, I remember giving it, because I remember the exchange, Your Honour. THE COURT: If I have it, it would be with my stack of authorities that were provided by both Crown and Defence. MR. TURMEL: Okay. THE COURT: It wouldn't be an exhibit if it was provided as a case. MR. TURMEL: Okay. Can I get into it now, though? THE COURT: Sure. MR. TURMEL: Okay. Now, I'd point out, okay, that the first thing that Judge Lennox wanted to do was put it off until Judge Fontana had ruled because it was based on the same set of facts... THE COURT: I have that case. MR. TURMEL: Okay, and at that time, I asked him to continue and hear it. Now, it was brought through..... Anyway, the Crown did put on their case at that point, and their witnesses were Officer Durno (ph), who was their chief witness, and Officer Durno was also the witness in the Fontana case, and he was also the witness in the 1991 Hull case. So the same witness giving usually the same testimony, and he was qualified as an expert on enforcement of blackjack, and things like that, and not on the mathematics of blackjack. And I can point out that all of the transcript that took place with Officer Durno had to deal with how the game was played, the odds of it, how the advantages were, what the different percentages are, and they were talking about a 5.9 percent in here, too, as I believe was mentioned before when they were talking about Scarney's (ph) numbers, and, you know, odds expected for the house on an average blackjack game. And well, frankly, since the facts were identical, it makes sense to accept and conclude that the arguments and that the evidence given by the Crown were identical. And there was nothing new that was added at this one here that was not put in then. The only difference was, rather than admission that there had been winnings, this time they've spent a lot of time charting those winnings, as if that matters. And it doesn't matter. Now, so we have Judge Lennox who heard the case, heard the whole case, and then was presented with a motion for directed acquittal, as well as Judge Fontana. And after Judge Fontana had come down with that verdict of directed acquittal, Judge Lennox concurred and also ruled on a directed verdict of acquittal for me. Now, Judge Lennox did state two or three times in his ruling that he didn't want to contradict Judge Fontana on the same facts, that the Crown would have to be very persuasive to have him do that. And evidently the Crown wasn't persuasive enough because he did not contradict him. But the point is, if he had found and disagreed with Judge Fontana, then it would have been his duty to do so and to find me guilty. Now, it's true that the argument that Section A is more than sales was not raised by the Crown, because in 1989, no one had ever thought of dreaming that one up. You know, and it took the fluke of my going to a one-word country, after winning my case in a two-word country, to cause these problems, and now I'm having a judgment out of a one-word country being used against me in a two-word country. So I was unfortunate in doing that, but nevertheless that happened, and the judge - even though Judge Fontana had taken a solid week to go and study all of the information I had given him, that had made available, all these cases, and then finally came down with a very learned decision, I would point out that Judge Bonin in Quebec, when given the same materials, including the Lennox and Fontana decisions, took all of 15 minutes to come back with a decision. I mean, Mr. Sagle spent a lot of time with Your Honour explaining how, historically, this is important. And it's evident that Judge Bonin didn't give a whit about history, because he didn't read the stuff. He had his mind made up in advance and it didn't matter what history said. You know, gaining is gaining in French, even though winning is not gaining in English, and that's the way that worked. So now we're back in a two-word country and I would think that Judge Fontana's decision, which discusses both winnings and gainings, should be followed. I have, in my information, letters - and this was in the disclosure of the Crown - letters from attorneys that I went to consult with, including one former Judge Norman Young out of Niagara Falls - and all of them concur with Judge Fontana's decision. I went to get those opinions after I had been threatened with a raid at a game, and I pointed out that they had to go appeal Judge Fontana's decision if they really wanted to oppose my intentions, and they simply threatened that they were going to raid. So I filed a motion in the Court of Appeal for leave for an extension of time for the Crown to file an appeal against Judge Fontana's decision, which I believe is the way it should be done. The Crown should file an application for leave to extend the time and file their appeal of the Fontana decision and not just come back and hit you with another one. And of course, that was dismissed because you can't appeal your own acquittal, and the Crown eventually did go about it the other way by simply charging the game again and presenting the same set of facts to another judge. Now, we have the same set of facts. We have Judge Fontana's statement that there was no Section A violation because there were no sales. I stand on Judge Fontana's statement that there were no sales and it should be done that way. And considering all of history did the same thing, every judge in Canadian history has always done this, has always considered that sales were the determining factor under Section A, I must admit, Your Honour, I wanted to come in here and I just wanted to say, "I didn't charge and GST, there were no sales," and sit down and say, "That's Section A." And that's really what this boils down to. We have a situation where an interpretation that's never been used by an English judge in Canadian history, because I think, coming out of an English judge, it would be improper, we have a situation where they're asking you to go against all former jurisprudence and come down with a decision that matches the improper one out of Quebec. And I think that since that is the only case he's been able to offer you, and just by a reading of the judge's decision, one will be able to see that he didn't take into account whatsoever any distinction between the sections and the definitions. So we have a judge here who wasn't interested in history, wasn't interested in the difference between winnings and gainings, and wasn't interested in getting a clear view of the issue whatsoever, who restricted himself to a much less clear view by not granting particulars, even though the superior court said he should. You know, I think that there are so many errors and problems in this case that it just should not be treated with the same respect that Judge Fontana's decision should be treated with. Well, Your Honour, I think that, given that we've already gone over most of the issue estoppel case law and we've already gone over most of the autrefois acquit case law, I think, at this stage, to keep my issues simple, I would simply put in the submission that Judge Fontana was correct when he stated Section A is ruled only by sales, and that to come up with any other decision would be contrary to the doctrines of issue estoppel and, at this stage in my submissions, I would now have to bring up the issue of res judicata for the first time in the proceedings as a defence. I mean, res judicata is much wider than autrefois acquit. I had an autrefois acquit - everything was identical except for the time and the place, and that was dismissed because the time and the place were different. Now, res judicata is much wider with much more latitude, and I seriously doubt that the time and the place are of the same relevance to res judicata as they might have been to autrefois acquit. Therefore we're back with the double jeopardy, the double jeopardy raised through this, and I want to now transform all those arguments, the issue estoppel, autrefois acquit arguments, into the defensive plea of res judicata, stating that the issue of whether sales are the only determinant of A or not has been ruled on by Judge Fontana, has been accepted by Judge Lennox, and of course accepted by every other judge in Canadian history. And I did not charge or sell anything. Every dollar I came into possession of I won at the turn of a card, and on the basis that Judge Fontana's decision is good, I would say that Section A does not apply in this case and that these charges should be dismissed. Now, well, there's the crux, Your Honour. We've known we were going to face this from the start. You either go with the Frenchman or you go with Judges Lennox and Fontana. You either become the only judge in English Canadian history to rule that winnings are gainings, or you - put it this way, Your Honour: What you rule today is going to be in a movie script at some point, and whether you're a good guy or a bad guy is whether you decide to side with the French or the English. And given that this trial was held in English and you can't plead the same kind of linguistic ignorance that the other judge could plead by coming down with a decision in French, I believe that your decision must be predicated upon the decision of Judge Lennox and Fontana, and the opinions I was given that they are correct. And on that basis, I would ask you to dismiss these charges, even though I still think, unfortunately, that this is not your jurisdiction to be having to deal with another set of charges like this. So, not wanting to take more of the Court's time, I stand on the statement that Judge Fontana was correct when he said Section A dealt with only sales and that the Crown is wrong to imply that Section A deals with winnings at cards. Otherwise all winnings at cards would be illegal, which means that poor Mr. Sagle can never run a blackjack game in his home again, because he knows how to count cards. He's an expected winner. And if he hosted a game, Mr. Marin could say, "He's keeping a place because he's good and he's going to win, and we don't allow that." It might also say that my winnings at poker - I can't run another poker game anymore. If Your Honour rules that all winnings are gainings, and "We only have the B section, just in case we want to nail him in a different way, but we can always nail everybody anyway, on A," well, then we have a problem, of course, and I think that the Crown's submission that they picked A, and they're trying to tell you that winnings are gainings, well, I think the flaw in that reasoning is best shown by how many linguistic situations arise where the word "gain" does not apply and the word "win" does. So I state, finally, that I was in the business of gaining, I kept the place for "win," that every dollar I made was won or lost on the turn of a card, there were no Section A GST-able transactions, and I do wish to point out that Section A and B can be delineated in several simple ways: One might point out that all Section B violations come out of dealings with chips, poker chips, taking a rake-off, charging a fee to get in the game, an edge of the table, exclusion of the bank.... All those B sections, those gains, those wins, those winning gains, are done with chips. Now, you'll notice, throughout all of history, all the A section conventions were always transactions done with cash, people buying something at a cash register. You don't put poker chips in a cash register. So there's one simple way to delineate between Section A, gain, and Section B, win: Chips. Also the fact that one is GST-able, one is not. At no point was I ever called upon to pay or collect GST, because all the transactions were over cards. If there were any GST-able transactions, then I could understand why they could say that I made money out of the place. Now, the Criminal Code definition of Section A works fine. A little hard to understand if you're not good in grammar, I suppose, but it does say that it's a gaming house to keep a place for a game to which persons resort for the purpose of playing games. Now, what kind of a place is kept for gain and what kind of gainings are made in a place where people do not resort for the purpose of playing games? If the crime is to do this activity where people resort, what is the activity in a situation where people do not resort? Now, if we go back to historical jurisprudence, we see sales of tobacco; that was a constant one. In many cases available, sales of tobacco products were the reason they were convicted of Section A. In other situations, it was refreshments. Now, notice in today's world, since the GST law has come in, all of these transactions are GST-able. Any service, or goods, or earning, or profit, or benefit, or commercial you gain is GST-able, and therein, therefore, lies another simple distinction between gaining and winning. So, keeping those two simple things in mind, that's the reason, when I had found-ins, I told them - and I had several Asian found-ins who had difficulty with the language - and I simply told them, "All you have to say is, 'We banked, we played, no rake-off and no fee, we won, we lost, we tipped always with chips, no GST.'" So that basically, I think, explained all the sections of the Criminal Code. "We won, we lost, no rake-off and no fee." Well, that accounts for two of the B sections. "We banked, we played." Well, that accounts for the other two B sections. "We tipped, no rake-off, no GST." And there's the A. So because the Crown's restricted himself strictly to the A, and because I think it's - unfortunately or fortunately - I think it's a trivial issue, I'm going to sit on the basis that Judge Fontana was correct in ruling that Section A dealt with only sales, and I don't believe - I mean, Your Honour, I can go through 20 or 30 cases to show that historically Section A is sales. You know, and I could probably find another hundred cases to show that historically, never anything but sales. And without even looking at those people who were convicted and pleaded guilty, probably all sales, and those people -look at all the situations of cases where there were acquittals. If Mr. Marin and Judge Bonin are right, all of these acquittals are wrong. If you're keeping a game where you expect to win, that's too bad; that's a gain; that's illegal. Now, if this is true, all this case law is wrong. So it's kind of unbelievable to be in this position, and I know that - you know, it may seem like it's a big issue, but think ten years in the future for a moment. Ten years in the future, there are going to be casinos everywhere - little private halls, clubs - and this issue is going to be nothing but a folk story. And I'm saying that what happens here by giving me the ruling that Judge Fontana was correct does nothing more than legitimize the underground industry that's out there. Sure, all sorts of mom and pop little poker games are going to pop up into life and people are going to start paying their taxes and hiring people, just in general, and of course they'll be policed. So what we're discussing here is whether or not - what I think is "Some unusual judicial moves need to be made to prevent John Turmel from upsetting the politicians' casino cart," you know, because they want to have a few big ones in a couple of towns instead of thousands of little ones everywhere. They want all the jobs in town instead of a lot. And I'm saying, what would happen if you came back with the Fontana decision instead of the Bonin decision? Nothing much would happen except a whole bunch of small games that are already out there in every small town would probably have the right to pop forward, apply for a license, go get registered. And frankly, I don't think the trauma to the political system would be such that it would make this kind of legal procedure necessary. So I'm saying the stakes are not that high by allowing me to have found a loophole to allow me to operate exactly what they want to operate, but in a smaller and more efficient way. So taking into account not only the past historic law and how they dealt with this, but also what's at stake, we see here that convicting me is going to - what? I think it's going to be a splotch on the reasoning of the judiciary, I think, and an ugly chapter, perhaps, when at stake is nothing more than what's coming anyway. You know? I mean, if you convict me, I might end up on 60 Minutes, and if you acquit me, I might end up in the Financial Times, but the point is, either way, this is going to end up an important story because it's the end of an era. I mean, in ten years, no one's ever going to be charged with operating a gaming house again. No one's ever going to be charged with operating a betting house again when they have betting parlours and blackjack casinos all over the place. This really is the end of an era. And it's a choice of having me go out on a successful note and opening competition. And I do believe that I've shown that the small operations do not exhibit and do not suffer from the same ugly practices or problems that the bigger ones do. I mean, it's very difficult for someone to try and sell you drugs when granny's sitting at the table beside you. You know? And it's very difficult for someone to broach prostitution when someone's at the table beside you. You know, it's small; everybody knows everybody. The problems that we fear or that we're told arise just never arose in any of the games that I ran, because it seems that "small" happens to take care of itself. People help each other, watch out for each other. It's just not the same as a big, impersonal casino. So, I think that this issue isn't important enough for Your Honour to come down with the decision and the reason that Mr. Marin wants. You know, Mr. Marin's French. He has an excuse, like Judge Bonin did. But I'm English; I understand the two words. Judge Fontana did, Judge Lennox did. I think it's your responsibility to deal with two words and to accept that the B sections were to deal with people who kept a place for "win" illegally and the A sections are for people who kept the place for "gain" illegally. And given the easy distinctions, I think that I'm not going to - unless there's something else raised or any questions - I think I've spent enough of the Court's time on this issue, and I can only urge you to stay with the English, with the linguistically more powerful English language, and certainly reject the argument that Judge Fontana was incorrect when he stated that Section A was only sales, because at that time in 1989, it was, and it only ever changed in 1991 due to serious misunderstandings and perhaps other irregularities which were mentioned. So, on the basis that I sold nothing, did not charge a penny, did no GST-able transactions, everything I won was due to a gamble, I claim the protection of the Fontana decision on the basis that my game had not changed. His judgment was correct and should be followed in Ontario, as former Judge Young said in his letter to me. So, on that basis, I thank Your Honour. THE COURT: Thank you, Mr. Turmel. Mr. Marin? MR. MARIN: Yes, Your Honour, thank you. Just on the final points raised by - well, first of all, as a general opening to my submissions, Your Honour, the accused sort of intertwined facts with various submissions and, in my submission, although I could take issue with it at this late stage, and I did indicate that if it arose I would reserve on it. I see nothing really that is relevant to the point that I should object at this stage and create further legal difficulties. What I intend to do in my submissions, Your Honour, is to cover three areas. I have a response to Mr. Sagle's submissions on the last day. I have a response to Mr. Turmel's submissions of today. And thirdly, Your Honour will recall that I made quite extensive submissions on the last day, and I would invite Your Honour to consider those with equal attention as those I make today, as I know the Court will. I certainly do not want to repeat everything I said almost two months ago, but simply invite Your Honour to consult your notes on that. THE COURT: I can indicate, Mr. Marin, I have made extensive notes of the submissions made by everyone. MR. MARIN: All right, thank you. THE COURT: Both by yourself and Mr. Sagle, and by Mr. Turmel. MR. MARIN: All right. THE COURT: And I will not decide today. I will be going back to review the submissions which have been presented over a number of weeks and to review all of the authority, so you need not repeat any of your previous submissions. MR. MARIN: All right, thank you, Your Honour. I will not do that, then. In response to Mr. Turmel's submissions of today, Your Honour, starting with the last ones he's made, he's made submissions about the conviction - or if you would be so inclined to dismiss the charges, it would not cause trauma to the political system and the stakes are not high and that he doesn't pose a risk to the community if he's dismissed, if the charges are dismissed, and the ugliness of his operations, and so on and so forth... THE COURT: I think it was the ugliness of other people's operations. MR. MARIN: Yes, or lack thereof in his. Quite simply, Your Honour, those are all submissions which would more appropriately be done at the sentencing stage, if and when we get there. Those were valid sentence submissions, but they're not valid trial submissions. Whether he was operating under an air of legitimacy because he had received legal advice that it was legal to do what he was going to do, and so on, these are all valid sentencing submissions, Your Honour, but should not in any way interfere with the Court's decision. If we have the independence of the judiciary, it's to insulate the Court, the judges, from being influenced by the impact of their decision on the political system. It would be nonsensical to then use it to the advantage of any party in rendering the appropriate decision. Of course, in assessing the protection of the public, and so on, at the sentencing stage, different considerations apply. Therefore, in my submission, Your Honour should not give any weight to those submissions at this stage. Concerning, Your Honour, the 19-or-so points raised by the accused in his submissions, he's indicated that he modelled and framed the facts exactly on purpose to make them like the prior trial, and so on. "I perfectly modelled them word-for-word, except for the address and the dates," is what he's told the Court, in relation to the admitted facts in this trial and the admitted facts somewhere else. My submission on that, Your Honour, would be that that's not where it ends. The accused has presented defences of autrefois acquit, issue estoppel, which, in my submission, is identical to the res judicata, although he's labelled it a different motion. It's the same motion. I have, for example, a record of proceedings dated back to August 16th, 1993, in front of your brother Judge Nadelle, where these were brought as pretrial motions in front of Judge Nadelle, and brought back in front of Your Honour. Your Honour will recall that the Court has ruled, I believe, March 23rd, on the issue of whether the Crown was estopped from proceeding with this trial because of the prior one. So the issue has been decided in that respect. Now, there is a fundamental difference, in my respectful submission, to the accused taking conveniently 19 points which match prior 19 points, and so on, and saying, "Well, that's the end of it." The onus in bringing such an application as res judicata, as the accused knows by now, is very high. Your Honour has already made a ruling on that, the points to cover it. And I have here the Canadian Criminal Procedure by Mr. Justice Salhany, 6th edition, 1994, Canada Law Book, 6.2181-6.2450. It deals with the issue of res judicata, Your Honour. I don't want to relitigate, in a sense, an issue which Your Honour has already made a ruling on, but in support of Your Honour's prior ruling, in my submission, support for Your Honour's prior ruling lies in the excerpts of Justice Salhany's new book, just published, and the accused has a copy of it because I presented it to him in high court when we convened on the motion in front of Justice Millette. Needless to say, Your Honour - and I only have one copy here, but I'll be handing it over to the Court as I quote the more salient portions. For example, at 6.2240, there's a quote highlighted there, Your Honour: "Before issue estoppel can apply, the Court must be satisfied that the issue sought to be estopped has been clearly and unequivocally decided by the Court in the first proceeding with a fundamental step in the logic of the decision." Furthermore, at 6.2260, "The theory advanced by the Crown at the first trial may assist the Defence in establishing that the issues are identical." If I may pause here for a moment, Your Honour, the theory advanced by the Crown in both the Lennox trial, as it's been called, and the Fontana trial, as it's been called, are different and no particulars were provided, no evidence of gain was led. It's wholly different from the issues involved in this case. Finally, Your Honour, at 6.2340, "The Crown is not entitled to relitigate the issue by tendering the same evidence available at the first trial." Again, we're dealing with a different situation. I'll leave the matter at that, Your Honour, because the Crown's submission is that Mr. Turmel has had this matter ruled on prior to trial, in the middle of trial, at the end of trial. He's brought it over again in final submissions. The issue has been hashed out. There are a number of rulings in existence, whether they're called res judicata - and by the way, that's Latin for issue estoppel; perhaps it's my French background that allows me to see that, Your Honour; I would enlighten Mr. Turmel in that direction -so whether you call it what you want to call it, it's the same motion. And certainly, by labelling it something different than what it is doesn't change the subject matter. So I'm providing an excerpt from Salhany's 6th edition. Two further points, Your Honour, in Mr. Turmel's submissions: Whether Sergeant Fotia investigating another location, which is not the subject matter of these charges, investigating another location at another time period, notes that he had no grounds to believe a criminal offence was taking place, again is of limited assistance to what this Court has to decide. It's purely the opinion of an officer that he had insufficient grounds to lay charges in another operation. Making reference, I may add, to poker. Here we're dealing with blackjack. And so, again, Your Honour, it's of little assistance in assisting the Court. And, I would say, so is the fact that the accused is not making GST-able remittance to the government or that he hasn't been asked to make one. Basically, it's neither here nor there, with dealing with the issues. One final note on the preceding decisions, Your Honour, and I'll move on after that: In the decisions of - the prior decisions, referred to as the Fontana and Lennox decisions - if I may refer Your Honour briefly to the Lennox decision, dated April 7th, 1989 - I don't know if Your Honour has that; I think Your Honour does have it - but it's at page seven, and I simply want to clarify a misconception that, in my submission, can be seen from the submissions of Mr. Turmel: That is, the charges were dismissed on a directed verdict, as I understand Judge Lennox's decision, not an acquittal, but dismissed on the directed verdict. They were dismissed under directed verdict because there was an absence of evidence, and if I may quote from page seven of his decision at line 19, Your Honour, "I understand that it is common ground that the evidence called and the purpose of that proceeding..." Referring to the preceding Fontana decision, "...for all practical purposes are identical..." All right, so Judge Lennox is facing an identical set of facts, "...to the present matter and that any argument that would have been advanced in this matter was already advanced before His Honour Judge Fontana." So you have Judge Lennox, who has identical facts, identical submissions. So he concludes, "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." So that's the position of Judge Lennox in the prior decision. And he concludes by adopting the reasons of Judge Fontana and by saying, "For those brief reasons, and, more particular, for those set out by His Honour Judge Fontana, the motion for a directed verdict is allowed. The charges...will be dismissed." So, in my respectful submission, Your Honour, he is faced with identical facts, identical arguments. He says, "One judge found there was insufficient evidence; how can I disagree; it's the same scenario and time frame," and so on. And so Judge Lennox took that decision. Now, Your Honour will recall that Your Honour has previously commented on Judge Fontana's decision by stating that the evidence presented in Judge Fontana's decision was different from the one in this case and the Crown here has proved - has focused entirely on Section A, has led much evidence to substantiate the legal arguments made that Section A would apply. Again, Your Honour has indicated on a previous ruling that Judge Fontana's attention was not directed to Section A, as it was in this case, and that I had argued, Your Honour, that looking at Judge Fontana's decision, that it was clear, from the reading of it, that his attention was focused on the B section, although it's mentioned passing the A. And Your Honour's ruling is to that extent. So I would simply indicate that, faced with that, that's how Judge Lennox decided, and that it does not change the outcome of this trial. As Mr. Turmel has indicated, he had argued at some length both decisions in front of Judge Bonin in Hull. Your Honour, those are the extent of my submissions in reply to Mr. Turmel's submissions this morning, Your Honour. Now, dealing with the submissions made by Mr. Sagle on the last date, one of his arguments, one that he seems to put forth, Your Honour, with the most conviction, or strength, is the argument that the Crown is inviting Your Honour to interpret "gain" by giving it its natural, plain meaning. And his argument was that, historically, courts have not interpreted "gaming" and "keeper" by giving them their plain, natural meaning. He argued, Your Honour, that the Supreme Court of Canada, and the later decisions he indicates, have given it somehow a meaning which is foreign to its natural meaning, as I understand his argument. Now, the - I'm handing over to Your Honour the Black's Law Dictionary, 1968, 4th edition - and the argument of Mr. Sagle was that the courts, in interpreting "gaming," have read into it an element of winner or loser which would not be part of its sense. That was the argument by Mr. Sagle. The argument for "keeper" is that the courts have added the requirement that the Crown show an element of control over the place. Well, as one can see, Your Honour, though the definition of "keeper" and the definition of "gaming," as found in the versions of Black's Law Dictionary, both conclude that in the meaning "keeper," for example, is defined as someone having the care, custody, management of anything or place, has or holds possession of anything. So there is a sense of custody, care, management that has been classically defined as being a part of being a keeper. Similarly, Your Honour, for "gaming," the aspect of winning and losing which Mr. Sagle says is not part of its natural meaning, is found in the straight definition of "gaming." It's defined as an agreement between two or more persons to play together at a game of chance for a stake or wager, which is to become the property of the winner, and to which all contribute. So again, the notion of winning or losing is found within the definition of gaming. So my respectful submission, Your Honour, is that in fact the courts have given the plain, natural meanings to these words, as we can see from the classic definitions found in Black's Law Dictionary. So for "keeper," there's active participation, control, whereas as "gaming," an issue of winning and losing can be found. My second point, Your Honour, responds to Mr. Sagle's submission - and again, this also ties in with Mr. Turmel's submissions today - which submission seems to be that, if Your Honour gives a definition under A, which covers gains as being gains from the games, that Your Honour would be - how shall I put it? - would cause an affront, or would contradict massive amounts of case law to the contrary. Mr. Turmel's nodding, so I've put that correctly, I understand. MR. TURMEL: M'hm. MR. MARIN: So that's the interpretation that seems to be the bottom line of the Defence position. Now, the Crown's position, Your Honour, is not that it would cause an affront, but if one looks carefully at ancient or historical case law in the ones filed before the Court, the reason why gains from the game are not to be seen in those cases is that the facts don't show the accused as making direct gains, directly out of the games, but they show the keeper devising ruses to get around getting money directly from the game. And courts, instead of having to address gain out of the games, have had to address those ruses in saying, "Listen, you're still caught under A," and that's how courts say it. They're very careful in not saying that "A means;" what they say is, "A will include," or "A will capture," or "A will extend to..." So Your Honour, by hitting it right on the head, and saying "A also covers obviously the direct gain of the games," you're not being an affront to case law; what you're doing is giving it the most direct meaning that all the gamblers have stayed away from. I point Your Honour to Tab Two out of the Crown's case book, R. v. James, p. 200. Actually, the bottom of page 199: "'Gain' is that which is acquired or comes as a benefit, profit or advantage, and it may be derived indirectly as well as directly." So what the Court is doing in James is not saying that - and we've covered the facts the last time, Your Honour, and I won't belabour the point - but the gains in James, which were not out of the games, are gains which are captured indirectly by the wording of A. So the question begs, what then would be direct gain? And so the gain, in my submission, would be the direct gain out of the games. Again, Your Honour, the case of Karavasilis (ph), under Tab Three of the Crown case book, page 536, there is a quote by the Ontario Court of Appeal from the decision of Riley, Cherry and Long, and the final paragraph of that quote, at page 536, is the following: "The revenue from the fees charged the members, as well as the revenue from the sale of refreshments and from the billiard table and cards, constitute keeping of the premises for gain within the definition laid out in James." So again, we're faced with a situation where the Court doesn't say "A means this..." They say "A captures that," or, "The conduct falls within A," or, "The conduct reflects indirect gains which are captured by A." None of the many cases that are before Your Honour on A, in my submission, none of them, Your Honour will find constrains or limits artificially the meaning, under A, to cut out the direct gain from the games, because that's what the purpose of the provision is. Now, the fact that we don't have a litany of cases under A, showing direct gain from the games, is simply because the keepers have camouflaged their actions, they've taken up ruses to make money elsewhere from the games, because it was so clear that it would be captured under the provision. And that, in my respectful submission, is the finding of Judge Bonin, in Hull, that had substantially different issues and evidence before that court than had Judge Fontana and Judge Lennox. Bonin's decision happened after, and Bonin's decision happened after, and Bonin's decision - and again, I referred to it at length the last submission and I will not do it this time, Your Honour - I'll invite Your Honour to look at my submissions on that decision, but there was evidence of expectation of profit, expectation of gain, the fact he was leasing the premises, and so on. Much different evidence than was before the Court in Fontana and Lennox's decisions. And so it's my respectful submission, Your Honour, that that is the interpretation to give to the A section. Now, finally, Your Honour, on the submissions made by Mr. Sagle, the final point I have in relation to that is that again Mr. Sagle also made submissions which, in my submission to the Court, would be more appropriately done at the time of sentencing, if the Court got to that stage. He read out, made reference to the possible sentence, and so on, if this would be a jury there would be an automatic mistrial. It is not the province of this court to be concerned with sentencing at this stage in the proceedings. If they do have mitigating factors, they do have factors to raise to mitigate the situation on sentencing, I'm sure the Court will be more than pleased to afford them every possibility to make those submissions to the Court. It's my submission that it is improper to raise them at this point in time, Your Honour. Now, if I can just be given one moment to review my notes, my submissions are done. .......... Yes, Your Honour, those are the Crown's submissions. THE COURT: Thank you. As I'd indicated, I'm not going to come to a decision today; I'm going to take some time and review all the cases that have been provided and review all the submissions that have been made over the several appearances. I would think..... MR. TURMEL: Your Honour, do I get a rebuttal at this stage? THE COURT: Is there something else you'd like to say? MR. TURMEL: Well, yes, a few points were... THE COURT: Yes. MR. TURMEL: ...raised that I wanted to - can I do that now? THE COURT: Certainly, yes. MR. TURMEL: Well, Mr. Marin made the statement that Judge Bonin dealt with substantially different issues, and could he give us one? MR. MARIN: I have no further submissions to make, Your Honour. MR. TURMEL: Well, then I would point out that his statement is unsupported by any evidence, okay? I mean, the issues were identical, the same witness was there, gave exactly the same testimony, so I'd point out that the Crown's statement there is unsupported by any facts whatsoever. The issues were identical, the rulings were different. You just have to read the judgment to see that it's the same situation; just the rulings are different. MR. MARIN: That's what I was referring to. MR. TURMEL: So that's the point: Same facts, different rulings. Which, frankly, if he'd been a little more respectful towards Judge Fontana, he shouldn't have done that. But anyway..... Now, umpteen times Mr. Marin tells us that the res judicata defence is the same thing as the issue estoppel pre-plea, and that can't be so, simply because certainly the legislators created the different pleas over history for a reason. I mean, there must be a discernible reason why issue estoppel is a pre-plea and why res judicata is a real plea, and I wish to avail myself of that point, saying that it's true: Issue estoppel is raised before the plea, before any evidence has been heard, before any evidence has been seen. Res judicata raises the same issue after all that evidence has been heard and seen. To sit back now and say that, "Listen, you ruled this way before I gave you all the evidence; why don't you rule this way again now?" doesn't take into account the difference between the two pleas inherent in the separation of those two pleas in the laws. So I would point out that you should not simply dismiss the res judicata plea on the grounds that the issue estoppel plea had been previously dismissed, simply because you have a lot more evidence upon which to base your decision now, a lot more evidence with which to compare and see if the 19 facts were identical, because when you did make your original ruling on autrefois acquit and issue estoppel, the Crown had assured you they had ten areas of gain to show. At trial, you realized they showed none. They showed a few areas of loss, but no areas of gain, short of the area I admitted in the facts, that I am a winner at the games themselves. So please, Your Honour, understand, I hope, that res judicata is certainly, though it's the same double jeopardy issue, is raised on a whole different set of criteria. One before the plea, one after the evidence. And I'm saying now that the evidence is in, I'm raising res judicata at the time when it should be, in its proper context, and the Crown has no right to say that it should be dismissed because you dismissed issue estoppel earlier when you didn't know the facts you now know. So I say that issue estoppel is no reason to deny this res judicata here. Now, he made the statement that no evidence of gain was led before Judge Fontana, and of course, whether the Crowns went to different schools or not, the Crown in 1989 had an admission from me that I was a winner, that I was playing money to win, and didn't have to prove it. Needless to say, with an admission, you don't have to lead evidence. And the fact that Mr. Marin chose to try to lead evidence, even though I had admitted it, simply shows the different techniques between the two years. But there was evidence of that gain led before Judge Fontana, and the mere fact that the officer - by the way, do you have a copy of the transcript of the Fontana trial? MR. MARIN: Your Honour, I think he's out of order. MR. TURMEL: Oh. MR. MARIN: I don't have to answer any questions from him. MR. TURMEL: Okay, in the transcript of the Fontana trial, which has never been raised at this point, which I will photocopy and leave for Your Honour's perusal, if that's no problem, as an authority, in the transcript of his trial, you have the same evidence offered by Officer Durno (ph) that you offered by Joe Fotia here, with respect to the sales, with respect to the Section A. Of course, Judge Fontana didn't need to look at more than the sales issue to consider that he'd done his job properly in ruling on A. Now, if Mr. Marin is right that he didn't do his job properly, well, I'm in trouble, and that'll come up at sentencing. If he did do his job properly, well, then the statement stands. He checked out the sales, he asked Officer Durno (ph) about it, the officer said, "No evidence of that," and then he dismissed it. Oh, by the way, Your Honour, I'm French too, so I just had to mention that I'm at no disadvantage with respect to Judge Bonin's decision, other than the fact that I can do my thinking in English as well. Okay. Now, it says here that Judge Fontana and Judge Lennox dismissed it on directed verdicts. Now, Mr. Marin seems to think that that's not an acquittal. I seem to think that that's stronger than an acquittal because it certainly wasn't the judge directing himself to hand down a verdict of conviction. It was a directed verdict of acquittal. Okay, now, how he can say it's not an acquittal when the case was in, all the facts were in, and a directed verdict is asked for, eludes me. Unless I'm all wrong about what directed verdicts mean. But I would assume that a directed verdict is actually stronger than a statement of acquittal, which insufficient evidence shown; this is a question of no evidence shown. And that's why I think that it was an actual acquittal, even stronger than an acquittal, by a directed verdict. So the statement that a directed verdict is not an acquittal and the issue estoppel arguments and res judicata arguments do not apply, I hope are false, or you and I have wasted a lot of time discussing these issues in past motions. Now, Your Honour has stated - oh, no - the Crown stated that it's different because His Honour Judge Fontana's attention had not been directed to that point. Again, I must rebut. Judge Fontana did spend the requisite amount of time on Section A. He determined there were no sales; that being the historical, only criteria, he then went on. Now, the Crown has repeatedly said he wants to give this a plain meaning. Common sense interpretation again. I mean, we've got 100 years of historical interpretations limiting it so you can't jail everybody in town, and now Mr. Marin is saying, "Forget history; let's do like Judge Bonin, and just forget history and just go with the common sense words." Why isn't he pulling out case law, like Mr. Sagle did? Why is he pulling out a dictionary that has nothing to do with any historical interpretation of the word "gain"? You know, I think it's a pretty weak ploy to pull out a dictionary when you've got no case law. So we produced the case law to show that all Section A gains were convicted under sales, and all he does is pull out a dictionary and say, "Let's go with the general interpretation." Well, Your Honour, if judges followed that advice and threw away their history and pulled out their dictionaries, we'd have chaos, as evidenced by, hopefully, this case. And that, obviously, I think, should not be the case. I know Mr. Sagle spent a lot of time going over the history. To him it means something. I mean, to Mr. Marin, it seems not. So the question is, is history going to matter to Your Honour? We have the Defence saying, "Go with the rest of history," and we have Marin saying, "Chuck it; go with the dictionary." Well, I say Mr. Sagle, on that point, was absolutely correct. History has always played a major part, case law, in the determination of law, and for the Crown to stand up and say, "Ignore all these cases and just go with the dictionary," I think is the height of presumption. Okay. Now, the James case, because he brought it up..... I know I filed, I believe, five or six of these cases in an earlier motion, which I hope is in the record, but I mean, because - I mean, this is amazing that the Crown would be referring to what I think is the strongest case in my history book here. It says, again - and this is, what is gain? What is "keeping for gain?" Right in the obiter. You know? Point one - sorry, point two. It says, "This is the case of the keeper of a cigar store." Typical. Back to GST-able sales. Point three, "...and the question was whether the receipts of his business were increased by sales to persons who resorted to the store for gaming." Well, I'll ask the same question: Were the receipts of John Turmel's business increased by people who resorted to gaming in such a way that his gain would not have been so much if they had not come. Now, if they had not come, there would've been no gain. That's my point. My point is that if the people do not resort for the purpose of gambling, I was making no other kind of gain which could then become illegal once connected with the prerequisite that the game now arrives. I mean, this is English grammar. You know? I mean, it's a shame we have to be going into grammar at this stage. So anyway, on page 198 of the James decision, last paragraph, it says, "The Crown contended that the profit made out of the sale of cigars alone was sufficient to constitute 'for gain.'" All right, and here it is, on page 200: "It was an adjunct to his usual business of a cigar dealer." Now, I think the word "adjunct" is important here, because if the game is an adjunct to your regular business, well, that's how historically Section A has always been interpreted. "When the game becomes an adjunct to the business and adds to the business..." Not creates the business, but adds to the business, ..."the profits of that business were increased by the sale of the goods in which he dealt, the question of what is keeping for game ought not to be embarrassed by the amount." And the last line of the second-last paragraph says, "The question for the jury is whether he keeps a place for gain and they may be properly told that the increased profits of the business derived from the sale of the defendant's goods to the persons who resort to his room for the purpose of play is some evidence of keeping it for gain." And it says on page 202 that, "An actual substantial profit need not actually be made, just the expectation of that profit." I would further point out - I believe it's in the Pilon case, which was handed in -that the judge specifically says that "gain" represents the profit that the man expects to make by the vending of the goods to the purchaser. So the words "vending" and "purchase" do take place repeatedly - and actually, there's another perfect delimitation (sic) between A and B. "Vending" and "purchasing" are the names of the transactions that take place under A, and "winning" and "losing" are the names of the transactions taking place under B. And of course, Karavasilis(ph), another example of sales and refreshments being illegal. And my final point is, if Mr. Marin - second- final point - Mr. Marin's contention that the Section Bs are just helper definitions to allow you to more precisely understand the complete scope of Section A, I can only say, why have there been so many acquittals in Canadian history? Every one of those games acquitted, where the guy was running the game but he let the bank rotate, every one of these games where people were acquitted for gambling, if Mr. Marin is right, why weren't they convicted? Now, of course, we know he's trying to change the law with the French judge, you know? And I just hate belabouring what I think are trite points, you know, and stuff that's grade nine grammar, and it's - anyway, the point is, this wasn't a case of them using Bs to prevent these tricky guys from their ruses of hiding it. You know? I mean, A sections have always been very clearly delineated and made and charged and convicted, and I don't think that this court, unfortunately, or Judge Bonin's court, has the right to change definitions at this stage of the game, and what a sorry story it would be to pull a definition change at the end of this era. So on the basis that the game was identical at all times for the last ten years - these are the same rules I've been playing for the last ten years everywhere - it's evident that the facts must be the same. The Crown has shown not one difference between any of the games in Hull and Ottawa in 1989, or Ottawa now. Not one. Claimed some, but never actually produced one. And on the basis that these issues have been litigated by Judge Fontana and Judge Lennox completely, on their merits, on that basis, I still suggest that the defence of res judicata should now apply, now that I've been forced past the plea period point, and that it should be given serious consideration, that the evidence shows. So, on those final points, I rest my case on the one statement that Section A deals only with gains by commercial sales, gains in business, and that Judge Fontana was correct in only looking at evidence of sales when he contemplated my acquittal under Section A. Thank you. THE COURT: Thank you. Now, as I had indicated, I intend to take some time so that I can review all of the lengthy submissions, as well as all of the materials that have been filed. I have not gone back and reviewed the cases since we were last in court. I intend to do that. MR. TURMEL: Your Honour, may I submit, as an authority, the transcript of Judge Fontana's trial of the found-ins, upon which everything is based? I went and got that done a while ago... THE COURT: I have a copy of the Fontana decision. It was... MR. TURMEL: No, not the decision. You don't have a copy of the evidence he looked at. You asked several times, what did he turn his mind to. I've got the trial transcript; they don't. THE COURT: If you have that, you can file it. MR. TURMEL: Okay, thank you. I'll get it in by tomorrow, or by Monday. I'll have it photocopied. MR. MARIN: Is it an official transcript or a Turmel transcript? MR. TURMEL: No, Your Honour, it's an official one I ordered, and you'd think they'd know about these transcripts, but it's official. It'll be on your desk by Monday, and I'll serve one on the Crown, too. THE COURT: Thank you. The 16th of May, Mr. Turmel? MR. TURMEL: A Monday? MR. MARIN: That's good for me, Your Honour. THE COURT: All right, I'll put this matter over, then, to Monday the 16th of May, in Number Three Court at nine o'clock in the morning, for decision, hopefully. ********** C E R T I F I C A T I O N: THIS IS TO CERTIFY that the foregoing is a true report of the proceedings transcribed herein to the best of my skill and ability. N. PAUL WARBURTON (Certified Court Reporter) ********** 940516 @TITLE = TOPAZ TRIAL DECISION @COURT = ONTARIO COURT (Criminal Division) @STYLE = Crown VS John Turmel @JUDGES = Judge Wright COURT: Are we ready to speak to the Turmel matter? MARIN: Yes, Your Honour. COURT: Mr. Turmel, I've received a copy of the notice of the appeal in respect of the decision of Mr. Justice Desmarais. I'd like to hear first from the Crown as to their position. MARIN: Perhaps, Your Honour, if I may just inquire very briefly with Mr. Turmel, I'm not sure whether he's asking that the matter be deferred or not. That would help in deciding whether or not to argue.. COURT: Well, I make that assumption, but perhaps, Mr. Turmel, could you indicate? TURMEL: Well, Your Honour, I would have expected the Court of Appeal to have requested the file forthwith which is their duty, and that happened on Friday when I filed around noon. So that I do believe that as this court's jurisdiction was suspended for the prerogative remedy, it continues suspended while it goes through the Court of Appeal, and I don't see any prejudice to the Crown's case in your hanging onto your decision until I'm back from the higher courts. COURT: You don't want to proceed today though? TURMEL: No, Your Honour, I don't. COURT: All right. If I could hear from the Crown then? MARIN: Yes, Your Honour. I'm filing a case book, Your Honour, that I'll be referring to in my submissions. I would like to indicate, Your Honour, that I was served with the application Thursday afternoon at the end of the day, and so I had the one day advance notice of it. TURMEL: Your Honour, the court said we didn't have to serve anybody at all. MARIN: I'm just stating a fact, Your Honour. I'm not reprimanding Mr. Turmel. I'm just stating it. Now of course the question that should occupy or is occupying the court right now is whether or not the appeal of Justice Desmarais' decision refusing the certiorari freezes the jurisdiction of this court to proceed with the decision in this matter. In my respectful submission, Your Honour, the answer to that is no. What I suggest that we first do, Your Honour, is contrast the nature of both applications and I have case law to the effect that an appeal of an extraordinary remedy does not in effect cause the proceedings to halt in the effective jurisdiction, in the effective court. Now if one looks at the basis of what a regular type of application for extraordinary remedy, there can be no doubt in my respectful submission, Your Honour, that that freezes the jurisdiction of an inferior court. The allegations behind extraordinary remedy are very serious. They allege jurisdictional error, excessive jurisdiction and so on by an inferior court, and because of the nature of that application, the rules in the general division, because that's the source of the freeze, it's not because everyone wants to be respectful of the general division, it's because you're ordered by the general division pursuant to the rules to halt the proceedings, and it's for that reason, Your Honour, and for ease of reference I have included Mr. Turmel's original application dated April 20, 1994. It's under tab 1. If Your Honour looks at the second page of that application, the last paragraph, there's a notice here. That's not invented by Mr. Turmel. That's a notice that's required in these types of applications, and what the notice does is that it orders the provincial division to forward true copies of all indictments, informations, exhibits, papers in this matter up to the general division. So as soon as the notice is filed, your whole file theoretically goes up to the general division. That's to prevent inferior court judges from, the theory being, proceeding in a detrimental course with the case. It freezes, but as I've indicated, that notice there is not of the penship of Mr. Turmel. It's a notice that's included in the rules, and rule 43.03 of the rules in the general division, and the real name would be -- just for the purposes of the record, I will provide the full name of those rules -- the Criminal Proceedings Rules, and rule 43.03 indicates that the warning that you have on that notice appear on the notice. It's part of the prerequisite. So the rules dictated that wording ought to be there, and if it's not there, theoretically they don't even accept it in general division. That wording has to be there, and secondly, there's a rule called the -- the number of the rule, Your Honour, is 43.03(4), and it indicates that subject to rules 5 and 6, the documents listed in the certificate under subrule 3, and subrule 3 includes, Your Honour, this mention in the application, okay, together with any transcript of the proceedings filed by the applicant shall have the same effect in law as a return to a writ of certiorari. In other words, this is the provision that freezes your jurisdiction. So if the notice is included on the notice of application, the notice that I've just read and of the notice to the court services manager, if that's included in his notice, as soon as he files his application in the general division, it's the end of the ball game for the provincial division proceedings, and that is because of that rule. That's the source of the freeze. Now it's so draconian as I've indicated that you lose theoretically your information. You can't even adjourn it. If we have to reconvene on a subsequent date, we all reconvene in court with no materials. So Your Honour can't even adjourn the matter, can't even touch it. So it's that serious an implication and that's because of the rule that I've just pointed to the court. Now Mr. Turmel served such an application on April 20th to the Crown and to this court, and as Your Honour will recall, the next day the Crown, or the very same day, the Crown brought a counter notice application, it's under tab 2, and without this notice of application Your Honour could not have proceeded on April 22nd clearly. So there's no argument there. That's for the reason why the application was brought, the ex parte application, to have the matter dismissed, and Your Honour will recall under tab 3 the matter was dismissed, the motion. So Your Honour was again vested with jurisdiction. So for that twenty- four hours or so, Your Honour lost jurisdiction, but because there were no court proceedings, it was not apparent, but like all the materials went up and then they went down again, and on April 22nd we had Justice Desmarais' decision and jurisdiction is reinstituted and that's it. The application's dismissed, and suffice it to say at this stage, Your Honour, in the grand scheme of things, the inferior court has allegedly excessed its jurisdiction and the superior court, the court having a supervisory function over this inferior court, has reinstated power to the provincial division. So we have had a pronouncement from the superior court as to the legality of the proceedings in the inferior court. That's the nature of the beast, if I can put it that way. Now on April 22nd we convened and we made further submissions, and as we now know, Mr. Turmel waited from April 22nd right up until Friday in the afternoon of the last business day, the last hours of the last business day prior to this continuation to launch notice with the Court of Appeal of an appeal of that decision. In my respectful submission, there's absolutely no rule in the Court of Appeal rules that is of the same effect as we have in general division rules. Now why would that be? Quite simple, Your Honour, because a superior court has already rendered a decision on the excessive jurisdiction in the inferior court. So why should a superior court review a superior court? It doesn't make any sense. So there is a rationale for the non- existence of that rule. The case of McNamara is under tab 5, and that case, Your Honour, stands for the proposition that if the application falls beyond the rules that freezes the notice of motion, then the application does not affect that freeze. These rules must be strictly interpreted. In McNamara, Your Honour, the defence had brought a prohibition, an original prohibition motion, and under the old rules it did not freeze jurisdiction of the inferior court to bring a prohibition application. So the Court of Appeal of Ontario ruled that because it's beyond what's aimed by the provision, then the prohibition does not affect the freeze the same way as a certiorari would, and the decision is a little difficult to read, Your Honour, but if one looks at the head note, the second paragraph of the head note, it's under tab 5, the second paragraph of the head note: Extraordinary remedies prohibition procedure, accused bringing application for prohibition during county court jury trial because of conduct of case by trial judge. Application brought on third day near conclusion of trial, Ontario Criminal Rules providing the judge to to return all documents to Supreme Court only upon receipt of motion to quash. All right. So if I may just pause there for a moment, Your Honour, the freeze would apply only on a certiorari, not on a prohibition, and that's the prohibition here is what was launched. So the head note continues, Your Honour: Since accused's application not joined with motion to quash nor requesting order demanding return of record, trial court's jurisdiction not suspended by mere service of notice of motion. Continuation of trial in such circumstances also not inconsistent with judicial dignity. A long interruption of a jury trial to await prohibition application could pose serious problems and issues presented on application could form basis of appeal. If I may pause again here, Your Honour, the notice that you have been served with here today and filed upon the Court of Appeal last Friday afternoon does not order you to surrender all documents of the trial. It could not because it's not in the rules. So I would ask Your Honour to look at that very carefully, and that is an extremely important point, and secondly as indicated by the Ontario Court of Appeal, the rules that divest your authority must be interpreted strictly. Otherwise we would never get through any criminal trial. We would have accuseds bringing all types of interlocutory appeals and we'd never get through a day's docket, and we know that criminal trials discourage interlocutory appeals according to the Mills decision, but there is, Your Honour, a case right on point, and that's under tab 6, R. v. Butagne. That is a Court of Appeal of Quebec decision, Your Honour, but leave was refused by the Supreme Court of Canada, and the number is at the top of the page at 59 C.C.C.(3d). So it is a very authoritative decision. Now if I may provide, Your Honour, in terms of background, the facts of that case are very interesting. The Quebec Superior Court had decided as a matter of policy to ignore appeals of certioraris. So it's right on point. The prior practice was that as soon as they were served with an appeal of a certiorari, what they would do is that they would suspend all proceedings. Well, what happened is that it bogged down the system. So the judges of that court decided as a matter of practice that they would not stop trials in their superior court upon service of a notice of appeal of a certiorari. So it's smack right on point on all fours with this case, Your Honour. So what the accused did in Butagne is that he brought a two-fold application to the Court of Appeal. Number one, the accused asked the Court of Appeal to make a pronouncement on the legality of that policy. It was an affront to legality to come out of this policy of ignoring the notice of appeal of certiorari. That was the first issue to be dealt with. The second one is the accused was asking for an interim injunction by the Court of Appeal to the effect of directing the trial of the accused in that case not to proceed pending disposition of the ultimate appeal of that certiorari. So those are the two issues. Now the Court of Appeal in the decision ruled on the first point at page 243 -- pardon me, Your Honour, it would start at page 239, the paragraph right under (a) the right column. By judgement dated November 29, 1989, the superior court dismissed their application of certiorari. They then appealed this decision to this court. Pending their appeal, they asked by way of application for the issuance of an order enjoining the superior court to delay their trial until our court has decided an appeal on the certiorari application. So that was the one issue that I was referring to. So it's a type of injunction to prevent the superior court from continuing, and secondly, this application for a stay is brought before us because according to counsel for the appellants, a superior court recently decided to no longer await the result of appellate proceedings as it was in the habit of doing previously in similar cases. So those are the two issues that I've just delineated to this court. Now the argument that there would be this automatic stay or thaw by mere service of the notice of appeal is dismissed, Your Honour, at page 240(c). It's at page 240 just under (c). In certiorari matters s.784.1 of the Criminal Code provides for an appeal as of right. An appeal lies for the Court of Appeal from a decision granting or refusing the resolving proceeding by way of mandamus certiorari provision. Counsel for the appellants argued from this that an appeal as of right necessarily involves a stay of proceeding even though Parliament has not so specified. That's the position we're in this morning. I cannot adopt this position. Certiorari is essentially a discretionary remedy. It appears illogical to argue that Parliament intended that a stay itself be mandatory simply by creating a right of appeal against a decision which grants or refuses a measure of a discretionary nature. Right now if we go to paragraph (g): I am of the view that the appeal as of right set out in s.784.1 of the Criminal Code does not result as of right in a stay of proceedings at first instance. The power to stay is as discretionary as the certiorari proceeding itself. And then the court indicates how it could undermine the effective administration of justice and the normal course of criminal trials to allow this automatic stay Now in 241(d): These propositions invite us to bear in mind the requirements of the effective administration of criminal justice. I cannot believe that Parliament by creating an appeal as of right in matters of certiorari want to sterilize the action of courts in order to ensure this objective. Now that's how they dispose of the matter that seizes Your Honour. So what is an accused to do? If they want the matter stayed to await the decision of the Court of Appeal, what the accused has to do is to bring a motion to a Court of Appeal judge ordering you specifically to stay it. That's what the Court of Appeal of Quebec said. At page 242(f): Essentially a stay order is a decision in the nature of an injunction. And so at (8), Your Honour: No provision of the Criminal Code deals with interlocutory stay in matters of certiorari. And what the court does at page 243 is they adopt the test for an injunction. It's a three-fold test. First of all, it must involve a serious question. Number two, it consists in deciding whether the party who seeks an interlocutory stay would unless it was granted suffer irreparable harm. In number three, the balance of convenience test. So if Mr. Turmel sought to delay once again the criminal trial in this court, he would have had to appear before a Court of Appeal justice and argue the three-fold test and say, give me an injunction staying the criminal charges until disposition of the appeal of the certiorari. That's his recourse. You don't have that this morning, Your Honour. Because Mr. Turmel has waited until the eleventh hour to file his application as he did last time, he ran out of luck, or he didn't bother bringing his application I would assume. In any event, there's no order binding this court not to proceed. In fact, what you do have, Your Honour, is still outstanding, an order ordering you to proceed with the case, ordering the completion of the case because that was the nature of the order by Justice Desmarais if I can harken back to that for a moment, Your Honour. Justice Desmarais did not just throw out the latest application of the accused, but rather in very strong language indicated -- very unusual for a judge to do a direct order and Your Honour would have to, in my respectful submission, look at the exact nature of the order, but the general division judge found under tab 2 page 2 of his decision -- pardon me, tab 3, Your Honour, page 2 -- and towards line 11: Turmel's trial before the Honourable Judge Wright of the provincial division is now at the stage of hearing submissions by Turmel. I would say that it's even at a later stage now, Your Honour, if I may add that. The trial is scheduled to be reconvened for that purpose tomorrow, April 22, 1993. The application for prohibition, unsupported as it is, cannot be granted. It smacks of a delay tactic to disrupt the early conduct of the trial. As a general rule, prohibition should be refused unless it can be shown that the harmful consequences of the applicant clearly outweigh the delay and fragmentation of the trial resulting from the prohibition application. That's not the case here. Page 3 of that same decision, Your Honour, the direct order of the court at line 10 of page 3: The resulting effect is that the the matter should be completed before the Honourable Judge Wright, and following his decision, either party may appeal the result. So not only does he throw out the motion of Turmel in general division, but orders the completion of the matter, not do the submissions and we'll take it from there, the completion of the matter, and following his decision either party may appeal. So he's ordering us not only to conclude with the submissions, but to conclude with your decision, right, and then you appeal. So not only does Mr. Turmel have absolutely that would delay the provincial trial today from continuing, not only does he have nothing, but Your Honour is currently operating under the backdrop of a decision of the general division that has full force and effect, and it's not suspended in any way, a direct order to this court to continue with the case. Now pointing to the accused Turmel as engaging in delay tactics, in my submission if Mr. Turmel was serious about any application in the Court of Appeal, it would not have been brought at the eleventh hour as it was brought again this last time. In between the night of April 21st and the 22nd last time, we were served with a twenty page motion by Mr. Turmel after receiving mine less than twenty-four hours before or something like that. I mean, he files something that purports to be a notice of an appeal, a clumsy two and a half page document filed at the eleventh hour. Surely that cannot in law have any effect whatsoever, and that document doesn't even order you to surrender the documents. So it's absolutely of no force and effect. It's not worth the paper it's written on. As well, Your Honour, I'm wondering how serious the accused is in asking the court to delay the trial. He's quoted in Ottawa Sun as saying he expects to be acquitted today. So frankly I'm surprised to see that that's the position he's taking this morning. I prepared this case book wondering whether I'd require it or not. So in my respectful submission, Your Honour, although these motions are unusual, a close look at the law of notice of appeals in matters of certiorari would indicate that far from being of the same nature of certiorari where it falls under the strict rules of the general division, the notice of appeal does not operate at all to the same effect as an original application. In my respectful submission, there is nothing binding -here's no order -- you don't have any order. That's the first difficulty. You don't have any order from the court. You don't have it contained in the notice of motion. There's nothing directing you to stop. I've pointed to the appropriate rules in the general division that provide for it and there's nothing that provides for it in the Court of Appeal materials and that's why it's not in the notice of appeal. Therefore in my respectful submission, the fragmentation of the trial boded in Senior Justice Desmarais' decision ought not be allowed to continue. Again much as the last motion smacked of delay tactics, this one as well is to the same effect, and we should proceed this morning with the decision as we were scheduled today. COURT: Thank you. Mr. Turmel? TURMEL: Well, Your Honour, first of all, I would explain the timing because it's been raised repeatedly that I filed it at the eleventh hour. Yes, I filed it at the eleventh hour because I didn't want the Crown doing any behind my back motions to the Court of Appeal like they did behind my back to the superior court. So it was strictly to prevent Mr. Marin from being able to pull an ex parte motion that I waited until the last minute to eliminate that possibility. He's shown that he won't give me notice of his application. So I just couldn't afford to give him a chance to pull that again. My purpose from the beginning has always, and my stated purpose was, even if the media quote me as saying I think I will be acquitted, my whole purpose from the beginning, I believe I stated, was that I never thought acquittal was good enough because they could just come and recharge me a third time tomorrow. I've always pointed out that I wanted them estopped from the second charge which would estop them from the third charge and that is the reason that I have always sought to prevent the charge from proceeding rather than have a decision which might be an acquittal, and at this stage I did properly file all my motions. The issue estoppel was ruled upon, the issue estoppel was appealed on time, and as you well know, and I'm prepared to get back into how Justice Desmarais was under several false impressions given that Mr. Marin had used the doctored transcript to convince him with, so that the fact that Justice Desmarais may have been misinformed about certain things, there was nothing I could do short of bring it to the Court of Appeal where the rules clearly state that they are to demand the file forthwith from the general division who unfortunately sent it back down to the provincial division, but I would only assume that they would still want that file, and perhaps the fact that the jurisdiction was suspended upon the service of the general division motion, carries on upon an application where the file has to be sent up to the Court of Appeal. You know, I'm not quite sure how the lower courts can necessarily operate on a file if the file is gone, and certainly the rules of the Court of Appeal make provisions for the file to be called for, and I would assume that it was done forthwith, and I was kind of hoping the file wouldn't be on your desk this morning. Now over here where the Crown was pointing out the Boutagne case and he was reading one section, he only skipped one paragraph that I would like to read which says, and this is page 240 in the (f) section, and it's the one paragraph on that section he didn't read to you which is: If this were a civil matter, we would not lack examples to demonstrate that in matters of extraordinary remedies the legislator normally provides for a stay of proceedings when it so wants this pending an appeal. Now on several other -- I believe in the previous case that the Crown gave you, there was also a statement at the top of the McNamara case, and this is under tab 5, first page 406, the very last line, it talks about the long interruption of a jury trial to await prohibition. Application would pose serious problems. I also remember reading in Marten's Criminal Rules that they, too, point out that the judge does have the discretion to overrule or -- sorry, to proceed with the trial in the case of a jury trial where the inconvenience would be just too massive to warrant being able to dispense with the proceedings. Now the situations always raised in these cases are jury trials where, yes, there would be a major disruption by having these fragmented trials. Now this is a case here, Your Honour, where there was no jury, just yourself, me and the Crown, and again I don't understand how the fragmentation of the trial has seriously prejudiced his case. I would have loved to have heard how he explained it to Justice Desmarais, but that's one motion he didn't get a transcript of. So all we have is the fact that he managed to convince Justice Desmarais that this was an urgent matter. It had to continue. It had to be proceeding even though there was no jury being inconvenienced, and I'm sure Your Honour certainly didn't seem to be having any difficulty coping with the odd delays, and I'm sure that being a judge is going to be a matter of learning how to cope with delays for most other cases. So I'm saying in this case here, given that the application is a challenge to the jurisdiction of the court's right to be deciding on the issue, and frankly I think that given everything was done in proper order, taking into account the fact that it was dismissed out of the general division on pretty seriously flawed career ruining statements, I just think that at this stage there's no prejudice to the Crown's case in letting me finish my application for -- and by the way, we're not coming back to the superior court. This will all be discussed right in the Court of Appeal now. So Mr. Marin just managed to have us have skip one level of jurisdiction, and now he's saying because I managed to sneak out of that jurisdiction, this other jurisdiction now doesn't have a stay that applies to your case. Well, the fact that you shouldn't have the file and the file should have been sent forthwith may be an indication that that is not so. The rules of the court certainly seem to indicate that you shouldn't have the file right now and it should be wending its way up to the Court of Appeal. Now Mr. Marin says the whole file theoretically goes to the general division. I'm just if Justice Desmarais had a chance to see the whole file or -- by the way, did Justice Desmarais have the whole file? Was it sent up to the higher court, I wonder. Did you lose it, or did Justice Desmarais have any chance at all of seeing what this file was about other than the doctored transcripts? So again for Mr. Marin to rely so much on Justice Desmarais' decision and statements when they were based on those doctored transcripts, I think is an unfair use of that situation, and the fact that I properly appealed on time and the file is supposed to be sent to the Court of Appeal is I believe an irresolvable problem from the Crown's point of view. They're going to have to face the fact that there is a legitimate right to object to the charges on the grounds of prohibition and I have a right to present that at the Court of Appeal. Now by the way, had we gone to the general division, it was slated for maybe the 18th, two days from now. As if the Crown couldn't wait another twenty some days, it was that urgent he had to have the trial go on. I just don't think that is a true state of the facts here. I don't think that the interruption while I go to the Court of Appeal is going to in any way hurt the Crown's case as I believe you may already have your decision prepared in which case I'm basically asking you to put it aside, wait until I come back from the higher levels, and if the higher levels decide that it's a question that should be ruled on, then pull it off the shelf and hand it down, but at this stage I don't believe going to the higher courts on a jurisdictional challenge is going to in any way hurt or inconvenience the court, I would hope. Now, yes, it's true as Mr. Marin says that Justice Desmarais' reasons were in strong language. I mean, considering he called this twenty day delay a delay tactic when it was the Crown who did most of the delays for the first half of the trial. I find it hard to believe that an eighteen to twenty day delay was that important, and again I would have loved to have heard how the Crown stressed that urgency. Well, Your Honour, again the Court of Appeal does not have a directive for you to stop. You don't have to put that annotated notice to the court clerk, but then again you don't have to serve the Crown or the judge anyway. That is what the clerks do at the Court of Appeal. So, yes, the rules are slightly different at the Court of Appeal. We don't have to serve anybody. We just file it and they are the ones who are in charge of getting the files and the information from the lower courts which is not the same case as in the general division where I had to give a notice to the lower court clerk to send it up to the higher court. So, yes, if the higher court has a different set of structural rules they operate by, it's obvious that the Crown is going to point out that they're not the same. Yes, they don't have to alert the lower courts to send the file up like I did at the general division because the Court of Appeal does that automatically. So I'd say that on that basis that there is no inconvenience to I believe the Crown or the court at this stage, and as I believe I have a right to launch this challenge against the jurisdiction of the court, and considering the superior court may have thrown out the argument a little hastily based on incomplete information, I would simply ask that the court at this stage refrain from handing down a decision in respect of a possibility that perhaps the Court of Appeal may decide that the similarity in the cases from 1989 and now do merit consideration at only their level. So on the basis that the notice of appeal is filed, I've been through the Court of Appeal many times before and I don't anticipate doing anything to screw up at that level, I just would say let justice takes its course and if I'm forced to come back to this jurisdiction, then you'll have your decision prepared to hand down, and if I'm successful at the other level, well, then there's been no inconvenience or loss to anyone. So at this stage I'd like simply for the decision to be put on hold until the file gets sent back from the Ontario Court of Appeal, and if Mr. Marin thinks that my argument is as frivolous and vexatious as he says it is, he'll have an opportunity very quickly to file an application in the Court of Appeal to dismiss it as frivolous and vexatious and we could be back here in a week for your decision if he manages to talk the Court of Appeal panel into doing that. Of course I figure with me there, he won't be able to, but he still has that option. The option is always there except that he just can't behind -- I mean, ex parte. So the Crown has an opportunity if he's in a real rush and thinks it's important, he can be in the Court of Appeal next week with an application to quash the appeal and then we're back. So I don't think it's up to Your Honour to basically solve the Crown's problem for him. I think he should enjoy himself at the Court of Appeal explaining to them why we're debating the issues that should have been debated at the general division, and so on the basis that he does have a remedy if he thinks this is some kind of an abuse, I would ask that you postpone your decision until such time as the file returns from the Court of Appeal. Thank you, Your Honour. COURT: Thank you, Mr. Turmel. Mr. Marin? MARIN: Just by way of a brief reply, Your Honour, the accused seems to acknowledge, if I understand his submissions correctly, that there's no rule freezing your jurisdiction, and I certainly would agree with that. Now he seems to make a final submission for a plea as to, well, let's see what they have to say and what's the danger of waiting and so on. Well, Your Honour, I can only stress again Justice Desmarais' decision in that, and I'm directing this court to proceed, and I would also stress, Your Honour, that it's not as if this was his first application. The subject matter of the application -- Your Honour can review it -- it's been decided time and time again by you, other judges before, Justice Millet, Justice Desmarais. It's not as though these matters have not in one shape or another or like matters been disposed of. The accused admits candidly that he has not approached this motion with clean hands, if I may use those expressions used in case law, in that he has sat on his motion until the eleventh hour. It's not like he said, well, I was too busy and so on. He has purposely filed at the last second. If he wanted so dearly to have the matter postponed, there was a procedure and that procedure was to apply to the Court of Appeal to delay it. So he's basically sat on it until the last hour so that I'm not able to respond to it and deal with it ahead of time of today, and so in my submission, not having approached the matter with clean hands, this court should not view what he's done with much sympathy. I'm faulted for not having referred to a paragraph in Butagne, a paragraph which in my submission bolstered my position. So I thank him for bringing it to your attention, but it's a paragraph that indicates that: If this were a civil matter, we would not lack examples to demonstrate that in matters...that legislator normally provides for a stay of proceedings when it so wants this pending an appeal. In other words, I would add, Your Honour, that the legislator normally provides it when the legislator wants it. When it's not provided ex post facto, the legislator doesn't want matters to be stayed in criminal cases. In the decision of R. v. Mills that I don't have with me, but that I'm quite prepared to present it to Your Honour, it's clear that interlocutory appeals are not to be favoured in criminal trials, and it was not clear prior to Mills, but in my respectful submission they are unheard of, period, that interlocutory appeals are brought in criminal trials. The fact that there's no jury trial is immaterial. Either this court's jurisdiction is there or it's not. If it's there, in my respectful submission, it ought to proceed, and it is not a material factor to be decided by the court. COURT: Thank you. TURMEL: Short rebut, Your Honour? COURT: Yes. TURMEL: If Mr. Marin wants to stress Justice Desmarais' decision, I just want to stress that Justice Desmarais was operating on doctored transcripts. Again if I don't have clean hands by operating at the last minute, why do they leave last minutes available, and I thought I did explain that I did do it at the last minute to avoid Mr. Marin pulling another back room ex parte motion without me, and finally this is not an interlocutory appeal. Now he repeated this same thing to Justice Millett over and over again, I'm sure he said the same thing to Justice Desmarais, and Justice Millett did not look at the merits of this and neither did Justice Desmarais. Okay? It is not an interlocutory appeal. What it is, it's a motion for prerogative remedy of a rejection of a pre-plea motion. It's obviously right in the rules, everything I did was perfect, and it just seems that after facing this so many times, how could the Crown still be under the impression that this is an interlocutory appeal. You know, from the start it's been prerogative remedy, it's been attempting for prohibition, and so I would agree if it were some sort of a res judicata like he told the judge, I would agree I can't go to the superior court and I can't be doing this and everything else he said would be true if it were a res judicata. All those things he said would be true, but it's not a res judicata. No matter how many times he keeps telling the court it's res judicata and it's interlocutory appeal, it's not res judicata. It's issue estoppel pre-plea and I have the right to appeal, and the right is existent. Mills did it, went all the way to the Supreme Court of Canada before the file went back to his provincial court judge. So he wants to use Mills? I say Mills is the same thing. If Mills could get his prerogative remedy argued to the top before coming back, I should be able to, and if the only thing standing in my way is the Desmarais decision based on doctored transcripts, I think the Court of appeal is going to have an interesting time on that issue. So on the basis that it is a legitimate argument done on time, fulfilled the rules flawlessly even at the eleventh minute, excuse the inconvenience to the Crown, but I have a right to do it at the eleventh minute and I have my reasons and I don't want anything imputed, you know, dirty hand motives for doing this. Thank you very much. COURT: Thank you. Are there any matters that are to be spoken to briefly? I'm going to take a few minutes to read the materials which have been provided to me, probably ten or fifteen minutes. (Brief recess). COURT: This is a matter that was put over following a submission set to today's date for me to deliver a decision. Mr. Turmel has filed a notice of appeal against the decision of Mr. Justice Desmarais of the Ontario Court of Justice (General Division) dismissing an application for prohibition. Prohibition results in a stay of proceedings. The defence argues that the same should apply to an appeal in this case to the Court of Appeal. I've been referred by the Crown to a decision of the Ontario Court of Appeal in R. V. Butagne which is reported in 59 C.C.C. (3d), page 237. On page 240 of that decision, the court indicates about the middle of the page: Counsel for the appellants argue from this that an appeal as of right necessarily involves a stay of proceedings even though Parliament has not so specified. I cannot accept this position. Certiorari is essentially a discretionary remedy. It appears illogical to argue that Parliament intended that a stay itself be mandatory simply by creating a right of appeal against a decision which grants or refuses a measure of a discretionary nature. And on the next page, page 242, the court indicates that: Should an appellant not wish a matter to proceed, the appropriate course is to apply for a stay of proceedings by way of an injunction. In face of the decision of the Quebec Court of Appeal and the decision of Mr. Justice Desmarais directing that the trial continue, I propose to deliver my judgement at this time. Mr. Turmel is charged with keeping a common gaming house. S.201(1) reads as follows: Everyone who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Many of the facts before the court come as a result of lengthy admissions and agreed statements of fact filed at the outset of the trial. In summary, the admissions include an admission by the accused that he was "in the business of gaming", that he was the keeper of the premises in question, that he "maintained control of the bank accounts", that at the premises games were played of blackjack and poker which are admitted to be games of chance or mixed chance and skill. The parties agree that the Crown must prove however that the place or places were "kept for gain". By way of background, the agreed facts stipulate that between the 27th of February and the 14th of November 1992 Mr. Turmel rented a room at 1141 Baxter Road in the city of Ottawa referred to as the "Baxter premises", also called "Turmel's games room". It is further agreed that between the 13th of November 1992 and the 14th of July 1993, Mr. Turmel rented several units, in particular 102, 103, 104, 105 and 107 at 2335 St. Laurent Boulevard, Ottawa, referred to as the "St. Laurent premises" Casino Turmel. The accused's purpose in renting the two premises was to allow the playing of games such as blackjack and poker. The leases in respect of the premises were five hundred and twenty-five hundred dollars per week in respect of the Baxter and St. Laurent premises respectively. Mr. Turmel had purchased and owned professional game playing tables at both premises. Food and non-alcoholic beverages were served to the patrons free of charge. The public was invited to attend at both premises for the purpose of playing blackjack with Mr. Turmel and his employees or poker with Mr. Turmel and other patrons. Mr. Turmel and his employees would act as cashiers. The Casino Turmel and Turmel's game room were attended for the purpose of playing games such as blackjack and poker, and the court was further advised that there was no fee required to enter the premises. A patron could buy into a game at two hundred dollars. Games were played with poker chips which were sold by cashiers in denominations of two dollars fifty cents to five hundred dollars. If a player chose to become dealer/banker for blackjack, the player would leave the table if there were more than one player present, or stay at the table and all the other players would leave the table. This player would then become the dealer/banker against Mr. Turmel or one of his employees. Patrons were not allowed to bank against other patrons. Numerous bank accounts with substantial balances were controlled by Mr. Turmel. However, the tips account for employees was not controlled by Mr. Turmel. In February 1992, the accused attended at the Ottawa Police headquarters and met with senior members of the Ottawa Police including Inspector Gordon, Staff Sargeant Zuraw, Sargeant Cleary and Detective Ford. The purpose of the meeting was to discuss his intended operation at Baxter Road. At the meeting, Mr. Turmel outlined the operation of his games room and described the operation with the rules including "Ubank" as operated both at the Baxter and the St. Laurent premises. He indicated that he felt that this method would place the operation of the blackjack game within the guidelines of the Criminal Code as everyone would have the chance to beat the house and therefore everyone would have the same chance. He further advised that the poker game would be a no rake-off game and that the house would not be taking any profit from the game. Mr. Turmel was advised that the Ottawa Police were not condone the operation and that the situation would be monitored, that if activities were found to be in violation of the gaming sections, that he would be charged. The banking records and the statements which were provided to the court as exhibits show very substantial expenditures for rent, food, promotion, and even transportation of patrons from Montreal which were incurred over certain timeframes and during those timeframes very substantial incomes were in fact accrued. The games in question were monitored by under cover officers on numerous occasions. It is indicated that the premises were operated as a professional organized playing venue with all the paraphernalia such as blackjack tables, poker tables, chairs, playing tables, playing chips, cards, card dealing shoes, food, beverage, that there were monitors for taking cash and playing chips, a doorman, as well as camera and surveillance equipment. The Crown has indicated that they do not wish to rely upon any presumptions as set out under s.198 of the Criminal Code. The court heard evidence from Sargeant Joseph Fotia who at the relevant times was with the Ontario Provincial Police anti-gambling racket branch. Sargeant Fotia indicated that he attended the Baxter Road location on the 3rd of June 1992. At that time there were seven blackjack and one poker table. He cashed and received chips and proceeded to play blackjack. Sargeant Fotia testified that he noticed Mr. Turmel playing poker. He also described a big sign entitled Turmel Casino. He testified that there was no liquor, that the premises were very clean and everything was free. Sargeant Fotia testified that he was asked to be the bank, and when he asked why, he was told that it was the rule. He testified you had to bank against the house once. He further added in his evidence that this was to circumvent the law. I should state for the record that I am unclear from Sargeant Fotia's evidence which was provided to the court whether this is something which was told to him at the point when he was told he had to be the bank, or whether this was a conclusion of the sargeant. In any event, he also testified that there was a sign that patrons must be the banker. Sargeant Fotia testified that he would tip the server and the dealer. He testified that on one occasion he made a point not to tip and he was not forced to do so. He testified at blackjack one usually tips if you win. His evidence was that he had a net loss of some fifteen hundred dollars on eight or nine visits. Sargeant Fotia testified that he was reminded of a small casino in Nevada, that the game was very honest, "nothing bad about it" and that everyone seemed happy there. He also visited the St. Laurent location on three occasions, the first on the 28th of January 1993. His evidence was that the operation was much bigger than at Baxter Road, a full-fledged casino with many employees, two games of blackjack and "hold 'em", a type of poker. He estimated that there were seventy-five to one hundred people in attendance. Sargeant Fotia's evidence is that it is very difficult to beat the house. In cross-examination he testified that the long term advantage was with the bank, and that if he had persisted in wanting to be the bank, they would have thought that he was a police officer. This is an assumption that I'm not prepared to make without there being evidence of his having attempted to do so. Sargeant Fotia testified that at St. Laurent he did not see anyone bank. The Crown also heard from Ron Shefford, director general of the casino of Montreal. Mr. Shefford was also for eight years director of the casino in Manitoba, and until 1976, was with the Royal Canadian Mounted Police specifically in the area of illegal gambling. He gave evidence on the way in which casinos make money, the house advantage, specifically the player having to play before the house and as well as to the average level of skill not being very high. He testified that in blackjack the house would keep on average fifteen percent of wagers. Mr. Shefford was shown the rules of Casino Turmel, one of which was described as "Ubank", and he agreed that his casino would not allow the players take a turn at being the bank. He also agreed that certain options of the Turmel rules such as "double-down", "split" and "insurance" would constitute an advantage to the player, qualified by Mr. Shefford as a skilled player. He indicated that the casino always has an advantage, but if players took advantage of the opportunities to be the bank, then there would not be an advantage. The Crown brought evidence of profits over a particular eighteen day period which were very substantial. In fairness to Mr. Turmel, it may be completely unrepresentative of his success. Mr. Turmel has responded however that "if the purpose was to show that I made made money, I admit I made money". The Crown also called Harry Nesbitt with the Niagara Regional Police who described a meeting in February 1993 with Mr. Turmel and two associates as well as the mayor and executive officer of that city. This was in relation to a proposal to the city to open a casino at which meeting he recounts that the accused claimed income of three hundred twenty to four hundred thousand dollars per annum from a small operation. I would like to thank both the Crown and Mr. Turmel for their efforts in narrowing the issues and the evidence which I understand from Mr. Marin and Mr. Turmel helped to reduce of the time very significantly. Although Mr. Turmel had the assistance of two counsel at trial, he had, up until the calling of evidence, represented himself from time to time. Much of the evidence called did not seem to relate to the issues which fall under the (b) section of the definition of "common gaming house" which is found under s.197(1) of the Criminal Code. (b) provides as follows: (b) kept or used for the purpose of playing games (i) in which a bank is kept by one or more but not all the players, (ii) in which all or any portion of the bets on or proceeds from a game is paid, directly or indirectly, to the keeper of the place, (iii) in which, directly or indirectly, a fee is charged or paid by the players for the privilege of playing or participating in a game or using gaming equipment, or (iv) in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game;... Were the Crown proceeding under s.(b), I would find that it has not been established beyond a reasonable doubt that there was a bank kept by one or more but not all the players or in which the chances of winning were not equally favourable to all, given the signs, rules and equal opportunity to be banker/dealer, or that the accused has been shown to fall under any of the other headings as set out under (b). If Sargeant Fotia, as discussed earlier, had pressed the issue, I might have come to a different conclusion. Reference has been made to the decision of my brother judge, Judge Fontana, in R. v. Booth, an unreported decision from 1989 of the Ontario Court of Justice (Provincial Division) which decision I have read and agreed with. Were the Crown proceeding under (b), it follows that in accordance with the Booth decision, I would enter an acquittal based on the facts that are before me. The Crown proceeds today on a different definition and that is the definition found under (a) which provides that a "common gaming house" means a place that is kept for gain to which persons resort for the purpose of playing games. If the charge against Mr. Turmel turns on the meaning of the word "gain", does gain include winnings? The defence argues that it does not. The court was advised by Mr. Sagle on behalf of Mr. Turmel that there has never been a case where a Canadian court has interpreted gain as winnings. The defence contends that gambling is legal and it is not against the law to make money from gambling which the accused admits to. The decision in R. v. Pilon, a 1920 decision of the Quebec Sessions of the Peace, indicates further: The Criminal Code does not prohibit the game itself whether it be a game of chance or a mixed game of chance and skill; it prohibits the game only when it is played in a common gaming house. The defence as well argues that the decision in R. v. Dearborn, a decision of the Ontario Court of Justice (Provincial Division) delivered by my brother judge, Judge Foster, is not restricted to a determination of (a). From page 8 of the transcript: Those are the allegations the Crown is relying on for this s.201 guilty plea -- to keep a common gaming house on the basis of common gaming house definition of kept for gain for persons who resort for that purpose of playing games or other same similar mode in which the portion of the proceeds from the game would pay directly or indirectly to the keeper of the place -- both being Mr. Dearborn who benefitted from the rake from the poker game and from the edge of blackjack games. The defence argued that in many cases gain has been interpreted by the courts and may be of assistance in the determination which the court must come to in respect of the charge against Mr. Turmel. In the present case, the activities of the appellant himself in providing the accommodation and facilities and selling the refreshments made the premises a common gaming house. It may be accurately said of him that he did, to some significant extent, participate in the promotion, organization and operation of the games of rummy and, accordingly, that he kept a common gaming house. This is a quote from the decision of R. v. Karavasilis, 1980, 34, C.C.C. (2nd), 530, a decision of the Ontario Court of Appeal. This case is one of many where gain has been long established by some indirect activity such as the sale of refreshments. Similarly, a gain for refreshments has been held to be gain in R. v. Bertrand, a 1918 decision of a Supreme Court of Nova Scotia, C.C.C., XIII, 198. Likewise the business of a tavern, R. v. Irwin, a 1982 decision of the Ontario Court of Appeal, C.C.C.1(3d), 212, and at page 227 of this decision: The game contemplated by the proprietor in the present case was ordinary business profit to be derived from the operation of a tavern, a gain which nevertheless qualified the tavern as a "place that is kept for gain". However, that gain or loss was in no way dependent upon the chance involved in the sequence in which cards were dealt to the participants in the blackjack games nor on the skill of the dealers and the players participating in the game. Nor did the possible gain or loss relate to the playing of game in which the participants were engaged in gaming or gambling within the meaning of those words as set forth in the authorities to which reference has been made. And further, for the keeper of a saloon, the sale of cigars in The King v. Sala, Yukon Territorial Court, 1907, C.C.C. XIII, 198; the sale of food and coffee in R. V. LaFrancois, a decision of Quebec Court of Appeal, 1981, 63 C.C.C. (2d), 380, and at page 383 of that decision: On the other hand he also charged for the food as well as the refreshments and coffee. The appellant demands that the Crown prove that he made a profit. First, it is enough that the room was kept for the purpose of gain and it does not appear to me to be necessary that in the end there was a gain. The deficit incurred by a common gaming house does not absolve its owner of the offence committed. The defence argues that it is possible to have legally banked gains, and then suggests as a conclusion that winnings cannot be gain, which in my view respectfully does not address the issue posed by the definition under (a). The defence relies as well upon the decision R. v. Jowe, British Columbia Court of Appeal, 1950, C.C.C., a decision at page 95 dealing with (b), not (a). The defence contends that gambling is not illegal and that it is not against the law to make money from gambling, which as indicated, Mr. Turmel readily admits to. The defence here argues that because gambling is not illegal, that likewise the winnings from gambling should not face any criminal consequences. Firstly, it is important to remember that the Jowe decision dealt with (b), not with (a), and further, the issue in respect of (a) is the keeping for gain, not the winnings or the gains in themselves. Mr. Turmel is not facing charges as a result of any gain or earnings which he may have acquired, but rather as a result of the allegation of keeping a place for that purpose. The defence argues that gain has never been interpreted as gain from gambling. Given the evidence and admissions, if the place is kept for gain within the meaning of s.197(1), then the offence is made out and the accused must be convicted. The Crown argues that the court apply a common sense interpretation of the word gain, the plain meaning of the word itself. The Crown relies on the decision in R. v. Turmel, a decision from October 23, 1992 of the Honourable Jean-Pierre Bonin which coincidentally involved the same accused and involved a conviction of keeping for gain. On page 10 of his decision, the learned judge states: It seems clear to me that the premises were kept for the purpose of gain. The defence argues however that the offence was not particularized as to s.197(1), nor was the court directed as to that issue, and indeed it may not have been necessary for the learned judge to decide that particular issue given his findings with respect to (b), in particular banking. I have to ask, is there any reason why Parliament intended, as interpreted by our courts, to prohibit an indirect gain or profit through sales, et cetera, but allow a direct gain from gambling itself. From Bampton v. The King, a decision of Supreme Court of Canada, 1932, 58 C.C.C., 289, and at page 297: No doubt where it is shown that gain is the real object of the keeping of the place, you have a case within s-s.(a). But, as I have said, no such case is made out here, and I think the argument based upon s- s.(b) fails also. In The King v. James at page 199, a decision of the Ontario Court of Appeal: The place in question was a room or place kept by the defendant, and it was a place to which persons resorted for the purpose of playing games, or a game, of chance. Was it kept by him for "gain"? The Act does not define the word, or limit its meaning to gain derived from the rental of the room or share of or interest in the stakes played for. In this respect the section is very different..."gain" is "that which is acquired or comes as a benefit, profit or advantage", and it may be derived indirectly as well as directly. And further: The existence of the soccer club feature in the facts does not stand in the way of concluding that the appellant kept the premises for gain and that there is a necessary connection between steps taken by the appellant to further his purpose in keeping them for gain and the players resorting to them for the purpose of playing games. This latter quote from R. v. Karavasilis at page 534. Black's Law Dictionary defines "gain" as "profits; winnings; increment of value; difference between receipts and expenditures; pecuniary gain; difference between cost and sale price; appreciation in value or worth of securities or property". The Crown suggests that if the intent of Parliament is to prevent indirect profit only as the defence urges, then one could run a casino for profit, but only run afoul of s.(a) if charging, for example, for parking or food or refreshments. In the "gain" cases set out by the defence, the court in my view was never called upon to define or limit or give parameters to the meaning of gain, but simply to determine whether those activities in question were included within the meaning of s-s.(a). With respect, I think the example presented by Mr. Marin makes sense. Why would Parliament make it an offence to keep a place for profit derived indirectly from the business of gambling but not attach to profits made directly from winnings? It would not appear to be a significant distinction whether the income is direct or indirect. (The King v. James) (R. v. Sala). What Parliament, I believe, was attempting to do by enacting (a) was to prohibit a place from being kept for the business of gambling, the commercial purpose of the activity. An issue has been raised as to GST. There is a distinction to be made, but for the purpose of (a), in my view, the distinction is not with substance. In relation to the argument of res judicata raised on the last day, I am satisfied that the defence cannot succeed. Whatever the determination with respect to the meaning of "kept for gain", I am satisfied that it is a distinct issue and question of law from the issues which were raised in the previous cases in R. v. Booth and R. v. Turmel, Ottawa. Further, in respect of R. v. Booth, the parties are not the same persons. Although from a reading of the transcript which was provided to me, Mr. Turmel was called in that case as the main Crown witness, he was not a litigant per se in the proceedings. It would appear to me that a common element in all of the cases to which the court has been referred in respect of (a), in part a requirement of commerciality, that is the phrase "kept for gain" being interpreted by the courts in the context of a business. (Bampton, Karavasilis, LaFrancois). It should not be a great surprise that there are no other cases on point simply because the very nature of their clandestine operations, other operators, unlike Mr. Turmel who operated openly, would be prosecuted on the basis of such evidence of indirect gain as was available to the authorities. I conclude that this was a business, a commercial activity on a large scale. There is no evidence of any indirect gain or income whatsoever, only from the business of gambling directly. There is no other reason for the places to have been kept other than to produce income. I conclude that gambling income does come within the meaning of (a), and I must conclude that the charge is proven, and there will be a finding of guilty. I'm going to ask the Crown first. Mr. Marin, what are you are seeking? MARIN: Your Honour, in the event that the accused would be found guilty, I had intended to ask for an adjournment of four weeks, the purpose of which -- I have directed the investigators, Your Honour, and I'll be meeting with them very shortly, but I have directed them to investigate this. Your Honour has before the court evidence extrapolated over a period of time which would show that the accused would have made well over two million dollars in money during that time period, and I would like to consider whether I should bring -nd I will be ready to do this in a month, Your Honour -- whether to bring a proceeds of crime application. The accused has been found guilty under s.(a). He has made illegal gains, gains that are prohibited under the Criminal Code, and substantial gains as indicated by Your Honour's ruling, and I would like to look into that, and certainly that would feature as an important part in whatever sentence takes place, Your Honour. COURT: Mr. Marin, it was my understanding, and correct me if I'm wrong, that the Crown was not in a position to have access to documents other than the seventeen day period. MARIN: That's correct, Your Honour, except that Your Honour will recall as part of the exhibits the bank accounts in question and the amounts of deposits that were being made during that period of time. I don't have an answer to Your Honour as to exactly what would be available now. One of my main investigators is not present now. He's from Toronto, but I did ask him on the last occasion to look into it. He is on a course right now, and Your Honour is correct that as far as the casino itself goes, the indication was that we only had the books for that very short time period, except that we did have the records of the bank accounts and the ins and outs of that. So it would be the Crown's position that, as part of sentencing, some attempt should be made to trace some of those funds back if possible and to make it part of the sentencing disposition. COURT: Mr. Turmel, the Crown is asking for an adjournment of four weeks before sentencing. What's your position? TURMEL: I have no position, Your Honour. It's, you know fine, by me. As long as my appeal period of thirty days is after that, that's fine by me. I have no position. COURT: Your appeal period would run from the date of sentencing. TURMEL: Yes, no position. COURT: All right. MARIN: I should indicate, Your Honour, just again to add as the basis for this application, under s.462.3, enterprise crime offence, is covered by the proceeds of crime, and under s-s.(6), an enterprise crime offence means keeping a gaming or betting house includes s- s.201(1). COURT: Would the Crown not have to bring an application -- that there has to be an application before the court? MARIN: There has to be an application, Your Honour, but before I formally bring an application, I am asking for this time period to determine if there's something out there left, if I could put it in that sense. I've asked the investigators to look into it. There may be other alternatives as well available to the Crown, but that's why I'm asking for this time period. COURT: Mr. Turmel, have you ever in previous dealings had, to your recollection, a pre-sentence report prepared? TURMEL: No, never before, sir. MARIN: Your Honour, I was going to mention that as well. The Crown is alleging a number of prior convictions, not just one, and there's a record that can be filed. I don't have it right now. It can be filed at the time of sentencing, Your Honour. COURT: Mr. Turmel, I take it you're not opposing the request? TURMEL: No, Your Honour. COURT: What I'm going to do then is I'm going to put the matter over for more than four weeks so that I can request a pre-sentence report. I'm also going to ask that Mr. Turmel attend for assessment for community service -- for suitability. TURMEL: Well, Your Honour, I might tell you right now that in 1981 the Court of Appeal converted my twenty-one day sentence to playing accordion in old homes folks homes and I'd be ready to do it again. COURT: All right. Because you are an individual who again is representing himself, I don't want to preclude any options. So I'm going to order a full pre-sentence report and as well an assessment for community service, and the Crown will have more than time that it's looking for in any event. MARIN: That's fine, Your Honour. COURT: July 4th? American Independence Day? MARIN: That is suitable for the Crown, Your Honour. COURT: Mr. Turmel? TURMEL: (Nodding) COURT: All right. We'll put over then the matter of the sentence hearing to the 4th of July this year in number 7 court at 8:30 in the morning. Thank you, Mr. Turmel. Thank you, Mr. Marin. Mr. Marin and Mr. Turmel, while you're both still here, if it is anticipated that we're going to require an extraordinary amount of time with respect to the issue of proceeds, perhaps you could speak with the trial coordinator. I'm not sure at this point what a realistic timeframe is. MARIN: Yes, I will, Your Honour. COURT: Thank you. C E R T I F I C A T E I HEREBY CERTIFY THAT I have, to the best of my skill and ability, reported the foregoing proceedings by means of stenotype and CAT. Anita L. Fleice, court reporter