Subject: TURMEL: Another gaming house trial going on

From: [email-masked] (John Turmel)
Date: 24 Jul 1996 09:16:52 GMT

TURMEL: Another gaming house trial going on
 
Recap:
 
     In 1989, I was of acquitted of keeping a common gaming house 
after a judge in the trial of those accused of being found in my game 
had ruled that they had not parted with any money in any of the five 
illegal ways and my judge had to rule that I therefore hadn't come 
into any money in any of the five illegal ways. 
 
     In 1993, when I was charged once again but the Crown did not lay 
any found-in charges to prevent another judge looking into the clear-
cut legality of the losings. I was I was convicted contradicting my 
first acquittal. 
 
     When another Turmel-style gaming house was charged in 1993, I was 
appointed agent for 9 found-ins since summary conviction offences 
don't require lawyers. After several pre-trial hearings, the Crown 
gave up and withdrew the charges against all found-ins. So the 
opportunity to once again prove that Turmel-style gaming house found-
in losses were not illegal.
 
     Last year, another Turmel-style Blackjack game was charged in 
Hull. One of the players charged as found-in, Tasso Paliovarkas, was a 
player who had been acquitted in the 1989 Bayshore raid as well as one 
of the keepers, my brother Ray Turmel, who had also been acquitted in 
the Bayshore raid. 
 
     I had prepared motions to challenge the charge on the grounds 
that Tasso had been formerly acquitted, "autrefois acquit" and another 
for particulars of which of the five sections the Crown was relying 
on. 
 
     On July 4, 1996, Tasso let his lawyer go and appointed me his 
agent but Judge Chevalier wasn't sure that I was allowed to represent 
Tasso and asked me for more proof. I pointed out that "Section 800(2)" 
state: 
     "A person may appear personally or by counsel or agent, but the 
summary conviction court may require the defendant to appear 
personally." 
 
     Judge Chevalier checked Section 800(2) and then asked if it was 
permissible for an agent to appear in court and question witnesses. I 
argued that I had in Ontario. He asked if it got to trial, if I had
questioned witnesses? I had to admit that it had been won before 
trial. He booked a hearing for Friday June 7 and told me to bring my 
authorization to question witnesses. He told me to call the Quebec Bar 
and find out. The judge warned me I could be charged if it wasn't 
allowed. I hadn't yet found Section 802(2) which said:
     "The prosecutor or defendant may examine or cross-examine 
witnesses personally or by counsel or agent." 
 
     On June 7, 1996, I could only argue that when section 800 said 
that the Defendant could appear in person or by agent, it must have 
meant that the agent could act in the capacity of the defendant and 
question witnesses. I was still not aware that Section 802 
specifically mentioned that the agent could question witnesses.
 
     Unfortunately, the judge ruled that though I could be his agent, 
I could not address the court nor could I advise Tasso during his 
defence. "No ventriloquists," he said. 
     Then he made Tasso try to argue 
the special plea of autrefois acquit and dismissed it. 
     Then he made Tasso try to argue the the motion for particulars 
and despite a decision of Superior Court Judge Frenette stating that 
it would be fair for the Crown to specify which of the 5 sections were 
being used, he put off his decision to July 2.
 
     On July 1, 1996, going over the Criminal Code, I come across 
Section 802 which specifically stated that an agent can examine and 
cross-examine witnesses! It now seemed a cinch that the judge's first 
decision on my agency was wrong. I prepared a new Notice of Motion and 
Affidavit pointing out this new cinch section 802(2): 
     "The prosecutor or defendant may examine or cross-examine 
witnesses personally or by counsel or agent."
 
     On July 2, 1996, Judge Chevalier dismissed the motion for 
particulars even though Judge Frenette had said it wasn't fair not to 
provide particulars. 
 
     Tasso asked if he could bring Judge Chevalier's attention to this 
new Section 802(2). Chevalier, thinking we were bringing up Section 
800(2) again said it had already been decided and wouldn't be 
discussed again. As Tasso was leaving, I told him to go up and ask if 
he could file his motion for Section 802(2) with the court. Before he 
would take it, the judge asked him what it was about. When Tasso 
couldn't explain, the judge said "I'm not going to accept to read 
something from Mr. Turmel that you don't even know about." 
 
     So the judge missed the chance to see that I had mentioned both 
section 800 and section 802 and he might have seen that the Criminal 
Code specifically permitted the agent to examine after he'd ruled that 
the agent could not. Now the only way to enforce section 802 was to go 
for a Superior court order of Certiorari to force the court to obey 
section 802 of the Criminal Code. 
 
     On Tuesday July 23, 1993, our motion for my agency was heard by 
Quebec Superior Court Judge Jean Dagenais. 
 
#                 ------------------------------------
#                 NOTICE OF APPLICATION FOR CERTIORARI
#                 ------------------------------------
#
#    TAKE NOTICE THAT on July 23, 1996 at 10:00a.m. at the 
#Courthouse in Hull will be heard the motion for an Order of Certiorari 
#permitting me to make full answer and defence through John Turmel as 
#agent in my stead pursuant to Sections 800(2), 802(1) and 802(2) of 
#the Criminal Code.
#     The grounds of the Application are that the failure of Judge 
#Chevalier to obey Section 800(2) and Section 802(2) of the Criminal 
#Code is sufficient to shock judicial conscience as:
#     1) an excess of jurisdiction;
#     2) an error of law on the face of the record;
#     3) a breach of the rules of natural justice in that the defendant 
#is being denied:
#          a) the right to be represented by agency of his choice;
#          b) the right to plead his position;
#          c) the right to make the best representation;
#          d) the right to best cross-examine witnesses;
#          e) the right to procedural justice and fairness.
#
#                 ------------------------------------
#                 PALIOVARKAS AFFIDAVIT FOR CERTIORARI
#                 ------------------------------------
#     I, Tasso Paliovarkas, residing at 2-88 Glebe Ave., Ottawa, 
#Ontario make oath and say as follows:
#
#     1. On Feb. 23, 1988, I, Gene Lo and Dave Booth were charged with 
#being found-in a gaming house for playing Turmel-style Blackjack at 
#the Bayshore Hotel in Ottawa with John and Ray Turmel or one of their 
#agents. 
#
#     2. On April 3, 1989, after evidence that Turmel had given us a 
#fair game which resulted in none of the five unlawful gains other than 
#legal winnings for Mr. Turmel, Ottawa Ontario Provincial Court Judge 
#Fontana acquitted us after ruling Turmel-style Blackjack rules did not 
#violate any of the five definitions of gaming house or a betting 
#house.
#
#     3. On Oct 21, 1993 Gene Lo was charged with being found-in a 
#gaming house kept by Dave Booth. Gene Lo and 8 other found-ins 
#appointed John Turmel as their legal agent. After several pre-trial 
#hearings, the Crown withdrew the charges. 
#
#     4. On Mar 10, 1995, I was charged with being found-in a gaming 
#house kept by Ray Turmel. On July 4, 1996, I appointed John Turmel as 
#my legal agent too. 
#
#     5. Section 800(2) of the Criminal Code states:
#     "A person may appear personally or by counsel or agent, but the 
#summary conviction court may require the defendant to appear 
#personally." 
#
#     6. Section 802(1) of the Criminal Code states: 
#     "The Defendant is entitled to make his full answer and defence."  
#
#     7. Section 802(2) of the Criminal Code states: 
#     "The prosecutor or defendant may examine or cross-examine 
#witnesses personally or by counsel or agent."
#
#     8. On June 7, 1996, Judge Chevalier ruled that my agent would not 
#be permitted to examine and cross-examine witnesses; not be allowed to 
#address the court and not be allowed to advise me during the conduct 
#of my defence. 
#
#     9. As my friend, Gene Lo, was permitted to successfully make his 
#full answer and defence through John Turmel, this Affidavit is made in 
#support of an Order of Certiorari permitting me to similarly make full 
#answer and defence through John Turmel as agent in my stead pursuant 
#to Sections 800(2), 802(1) and 802(2) of the Criminal Code.
#
 
     The case was not on the list but I was told by a clerk in the 
registrar's office that it had just been sent up. It was obvious that 
the judge hadn't read it yet so he asked Tasso what it was about. 
     Tasso spoke very well and said that his affidavit explained why 
he wanted me as his agent to speak and question witnesses for him. 
     The Crown argued that Judge Chevalier had already ruled on 
section 800 and it was obvious that he hadn't noted that we were now 
arguing section 802, not section 800 again. Could it be that the Crown 
didn't even read it yet?
     I approached the Court and mentioned that it was not section 800 
which we were relying on but on section 802. Judge Dagenais 
immediately checked it out and asked the Crown what they were relying 
on to deny Tasso my agency. 
     The Crown argued that the Quebec Lawyers Association said that 
only lawyers could represent people. Judge Dagenais asked him: "What 
if he's got a right to have Mr. Turmel according to the Criminal 
Code?" 
     Then the Crown tried to argue that I had a conflict of interest 
because it was my brother who had been charged with keeping the game 
of which I had been the designer of the rules and I had a vested 
interest in proving my gaming structure was legal through Tasso's 
case. I kept thinking to myself: "So what?"
     Judge Dagenais asked him if I was a defendant in the case too. 
"No, it's his brother." 
     The judge asked: "Is he going to be a witness?" The Crown said 
"yes" as I shook my head. There was no indication of who would be our 
witnesses because I was hoping to win this without having to present a 
defence though it is likely I would have givne a statement as Tasso's 
expert witness. But I've worn two hats before, defence and witness.
     Judge Dagenais asked if Tasso had any case law to back up section 
802. As he didn't know, I approached and once again mentioned that my 
own agency in Ontario was our only case law. 
     My approaching was kind of scary because I'd had less than 
friendly dealings with Judge Dagenais in another case and I was 
worried he might slap me down. But he seemed to appreciate my short 
points of clarification and was courteous throughout. 
 
     He gave the Crown 2 days to come up with some Quebec case law to 
show that section 802 had been found not to apply in Quebec and then 
he'd hand down his decision. As I doubt the Crown is going to find any 
judge anywhere on the record saying that section 802 doesn't apply in 
Quebec, there's a very good indication that I will be allowed to take 
over and redo Tasso's defence. 
 
     One final interesting note is that Judge Chevalier forgot to get 
Tasso's plea after he dismissed the special plea of autrefois acquit. 
Tasso hasn't had the chance to plead guilty and get it all over with 
as the Judge simply assumed that it was going to be defended. It would 
have been Tasso's chance to stand mute but either way, he has not yet 
pleaded and I can once again raise the issue of Autrefois Acquit and 
go for particulars because it was evident that the last presentations 
by Tasso were not the best defence pursuant to Section 802(1) that 
"The Defendant is entitled to make his full answer and defence." Since 
Tasso argued I could do a fuller job and he did not get to present 
that full defence, he has the right to try for that full defence once 
again.
     And that will be when the real war begins with those two motions 
once again with plenty of time to appeal and appeal before Tasso's 
December trial. And you'd be surprised how high you can get when you 
work fast enough to file your appeal the day after the decision. 
Appeals from lower court can be filed in Superior Court and heard 
within 2 weeks. Appeal can be filed in Quebec Appellate court and 
heard within 4 months and appeal filed in the Supreme Court of Canada 
before Tasso's December hearing. 
     I've done minimal-time appeals to the top before and it'll be 
interesting to see if I can do one again. 
     Of course, if Justice Dagenais rules later this week that I can't 
represent Tasso, I'll be filing in the Court of Appeal next week which 
would make me take even money on getting into the Supreme Court of 
Canada before Tasso's December trial!
--
John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada
111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739
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