Subject: Re: TURMEL: Ontario Court of Appeal Varies Probation Conditions

From: [email-masked] (John Turmel)
Date: Fri, 22 Sep 1995 21:10:23 GMT

On Friday Sep 8 1995 my application for an order staying my 

probation conditions pending my appeal against conviction in Police 
"Project Robin Hood" for keeping Canada's biggest common gaming house 
was heard before Justices Lacourciere, Labrosse and Austin of the 
Court of Appeal for Ontario. 
 
     I had been sentenced to probation with the two objectionable 
conditions:
     1) To only only gamble in licensed premises;
     2) To not associate with anyone known to have a criminal record. 
 
     1) As a professional gambler who has always played legal games in 
my home and participated in legal tournaments, I appealed the 
prohibition of this overly-broad range of legal activities and applied 
for a stay so I could play until it could be argued. 
     2) As the leader of the registered Abolitionist Party of Canada, 
a party of and for paupers, the condition not to associate with people 
known to have criminal records impeded my participation in the 
electoral process. 
     
     The Crown argued Parliament has not conferred any express power 
upon a court of appeal to stay a probation order, or to suspend the 
operation of any conditions in a probation order, pending an appeal. 
The Court has no jurisdiction to stay a probation order, or to suspend 
the operation of any of the conditions prescribed in it, pending 
appeal. The implication is that by conferring this express 
jurisdiction, Parliament did not intend to confer any jurisdiction on 
a court of appeal to stay a probation order pending appeal. 
     A court of appeal does possess the ancillary jurisdiction to make 
an order necessary to prevent the frustration of an appeal which must 
be exercised by the full court. Unless the inability to obtain the 
order sought would result in the frustration of the appeal, however, 
no jurisdiction to make the order should be implied. 
 
     Luckily, this was before a full court which chose to use its 
ancillary jurisdiction. After Justice Labrosse had pointed out:
      "There's no difference between gambling in a licenced premise 
and gambling in your own house which he's now prevented from doing:" 
 
JUDGMENT OF THE COURT:
     "We are all agreed that the two conditions of probation set out 
at p133 of the Provincial Division Judge's reasons for sentence are 
too broad in the circumstances of this admittedly unique case. 
     The condition limiting the Appellant to gambling in licensed 
establishments will be deleted and replaced with the condition that he 
not participate in any illegal gambling. 
     The condition that he not associated with anyone known to have a 
criminal record will be varied to non-association with persons know to 
have a criminal record for gambling.
     Other conditions of the probation order are affirmed."
COUNSEL FOR APPELLANT: John Turmel in person
COUNSEL FOR RESPONDENT: Alex Alvaro, Crown
FROM ORDER OF WRIGHT J. MAY 16, 1994.
      
     I informed my probation officer on Sept. 19 of the decision which 
had not yet reached her. Since information on the Canadian Police 
Identification Computer (CPIC) still hasn't been amended, she advised 
me to inform the Nepean Police that I would be starting up games in my 
home and have the court's endorsement available to prevent any charges 
under the old condition barring me from such activity. 
     This is important because my trial judge had specifically ruled 
that under his new interpretation of the law, my formerly-legal 
winnings at playing poker in my home would now be newly-illegal 
gainings. I'd expect it will be pretty tough for the Court of Appeal 
to uphold that ruling considering they specifically varied the 
condition Judge Wright had imposed to allow me to do just that. 
John "Robin Hood" Turmel