T-3-81
John C. Turmel, B.E.E. (Plaintiff)
v.
Ottawa Crown Attorney (Defendant)
Trial Division, Walsh J.—Ottawa, January 13 and
15, 1981.
Prerogative writs — Mandamus — Application requiring
Crown to prosecute large retailers under s. 186(1)(b) of Crimi
nal Code — Plaintiff previously charged and convicted under
same provisions relating to gambling devices — Plaintiff
further seeking that that charge be quashed and his conviction
expunged — Plaintiff contends. that refusal by Courts of
Ontario to prosecute based on alleged lack of jurisdiction —
Criminal Code, R.S.C. 1970, c. C-34, ss. 185, 186(1)(b) —
Federal Court Act, R.S.C. /970 (2nd Supp.), c. 10, s. 25.
The plaintiff who incorporated a transient casino in Ontario
and conducted various "black jack" games, was charged and
convicted under section I86(1)(b) of the Criminal Code. He
now seeks a writ of mandamus requiring that the Crown
prosecute certain large department stores under the same provi
sions and that the gambling devices charge laid against his
brother and himself be quashed and his conviction expunged.
Relying on section 25 of the Federal Court Act he contends
that he has exhausted every remedy available before the Courts
of Ontario all of which have declined jurisdiction to prosecute
the charges in question. He submits that their refusal to do so
was in each case based on an alleged lack of jurisdiction.
Held, the application is dismissed. The order sought by
plaintiff to the effect that the Crown prosecute certain charges
is not a matter within the jurisdiction of this Court despite the
invoking of section 25 of the Federal Court Act, and in any
event, even if it were, in the discretion of the Court with respect
to the issuing of writs of mandamus the issue of such a writ
would not be authorized as the decision of whether or not to
prosecute certain offences against the Criminal Code comes
within the jurisdiction of the Attorneys General of the Prov
inces in question and of the Crown prosecutors and are
administrative decisions. Without dismissing the fact that there
could be circumstances in which a Court having proper juris
diction might issue mandamus ordering a prosecution, this still
is not a proper case for the issuance of such a writ.
APPLICATION.
COUNSEL:
John Turmel for himself.
Richard Mosley for defendant.
SOLICITORS:
John Turmel, Ottawa, for himself.
Richard Mosley, Ottawa, for defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application for the issue of
a writ of mandamus requiring
1. that the Crown prosecute Sears, retailers of gambling
devices, for contravention of Section 186.1 b of the Criminal
Code or
2. a) that the gambling devices charge be dropped against my
brother and myself,
b) that my past conviction be expunged from my record,
c) that the Crown be reprimanded for biased and frivolous
enforcement of the Criminal Code.
At first sight it is apparent that this Court cannot
possibly have jurisdiction over this matter which
concerns the application of the Criminal Code,
R.S.C. 1970, c. C-34, the enforcement of which is
vested in the provincial authorities, the Ottawa
Crown Attorney, acting on instructions from the
Attorney General of Ontario. While applicant does
not dispute this he invokes the provisions of section
25 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, which reads as follows:
25. The Trial Division has original jurisdiction as well be
tween subject and subject as otherwise, in any case in which a
claim for relief is made or a remedy is sought under or by
virtue of the laws of Canada if no other court constituted,
established or continued under any of the British North Ameri-
ca Acts, 1867 to 1965 has jurisdiction in respect of such claim
or remedy.
It is his contention that he has exhausted every
remedy available before the Courts of Ontario all
of which have declined jurisdiction. While he con
cedes that, had they merely refused to issue a
mandamus ordering the provincial authorities,
specifically the Ottawa Crown Attorney, to prose
cute the charges which he has laid against Simp-
sons-Sears and The Bay among others he would
have no recourse to this Court, he contends that
the refusal to do so was in each case based on
alleged lack of jurisdiction. While some verbal
comments to this effect may have been made by
the various judges before whom he has appeared,
and this is not denied by counsel who represented
defendant at the hearing before this Court, no
documentary evidence was produced as to any
judgment to this effect. Moreover, although the
Ontario Courts would have jurisdiction to issue a
mandamus in a matter which justified the issue of
same, this is a far cry from saying that such a
mandamus should have been issued, and it may
well be merely a matter of semantics that when the
Courts before whom he appeared refused to issue
such an order for good reasons, the words "lack of
jurisdiction" may have been used when what was
intended was merely a statement that there was no
authority justifying the issue of such an order by
the Court. In any event I conclude that it cannot
be said that no other Court has jurisdiction in
respect of the remedy sought by defendant within
the meaning of section 25 of the Federal Court
Act which this Court must interpret.
While this disposes of the application it is of
some interest to deal with the background of plain
tiff's claim. He is a mathematician, well versed in
the theory of probability and the laws of chance
and claims that the gambling card game known as
"black jack" can be mastered by such approach
and hence is not a gambling game. His main
contention is however that since a judgment of the
Supreme Court in the Rockert case [[19781 2
S.C.R. 704] to the effect that holding a one-night
card game in a given place does not make it a
common gaming house and that habitual use of
the premises must be proven to establish that the
place was kept or used as a gaming house, section
185 of the Criminal Code has become obsolete for
"floating" gaming houses where the gambling is
conducted in a different place on each occasion.
Following this judgment he incorporated a tran
sient casino in Ontario under the name of JCT
CASINOS INC. and has conducted black jack games
in various locations in the Ottawa area. In due
course he was charged and convicted under the
provisions of section 186(1)(b) of the Criminal
Code which reads as follows:
186. (1) Every one commits an offence who
(b) imports, makes, buys, sells, rents, leases, hires or keeps,
exhibits, employs or knowingly allows to be kept, exhibited or
employed in any place under his control a device or
apparatus for the purpose of recording or registering bets or
selling a pool, or any machine or device for gambling or
betting;
It is his contention that the only equipment
required for the game in question was decks of
cards which are of course commonly sold every
where and that if he is guilty for this reason alone,
then large department stores which advertise and
sell cards are also guilty and should be prosecuted.
He argues that in the prosecution of him and his
brother they have been discriminated against and
that section 186(1)(b) of the Criminal Code
should be considered as having been "abrogated by
custom" in that such prosecutions for the sale of
playing cards are rarely if ever brought. He
appealed his conviction and by judgment of the
Supreme Court of Ontario in this appeal dated
September 8, 1978, the appeal against his convic
tion was dismissed, but the appeal against the
sentence was allowed, so as to vary it to a condi
tional discharge with probation for a period of one
year upon conditions prescribed in the probation
order attached. The order of forfeiture was
quashed and the money seized ordered to be
returned.
With respect to the charge which was laid
against him this definitively disposes of his second
demand as far as this Court is concerned as it is
evident that whether this Court had jurisdiction
over this present application or not it certainly
cannot order that the charges laid against him and
his brother be quashed and his conviction
expunged.
Since he has been unsuccessful in the charge
laid against him, and being something of a crusad
er, he wishes similar charges to be laid against
someone "big" which will be well defended by
legal counsel right through to the Supreme Court,
and hopefully, in his view, lead in future to non-
enforcement of section 186(1)(b) of the Criminal
Code in cases such as his or perhaps even to its
repeal or amendment. This argument is expressed
by him in his affidavit as follows:
Since I have been denied my only defense, my only hope is to
drag someone really big down with me. Since they resurrected
the charge against me, let them enforce it or declare it abrogat
ed by custom and give it a legitimate legal funeral.
His reference to his being denied his only defence
is with respect to a hearing before Justice L.
Coulter, Provincial Court, Criminal Division, Judi
cial District of Ottawa-Carleton, pursuant to sec
tion 626(1) of the Criminal Code with respect to
some 36 witnesses whom he had subpoenaed for
his trial. The hearing was to determine whether
these subpoenas should be issued. For example a
Mr. Funnell from Simpsons-Sears had been sub
poenaed to admit that they sold "professional
gambling cards". Mr. Gerald Bouey, the Governor
of the Bank of Canada, T. C. Bowen, the Manager
of The Bank of Nova Scotia, Paul Laurin, the
Executive Secretary of the Canadian Association
of Chiefs of Police were also sought by plaintiff as
witnesses. At the hearing Justice Coulter very
properly held that the evidence of these witnesses
would have nothing to do with his defence against
the charges laid against him and his brother.
Whether or not the charges which he had laid
against Simpsons-Sears were properly laid and
should be proceeded with was not before the Court
at that hearing, and it is trite law to state that it is
not a proper defence for a charge laid against an
accused to allege that other persons guilty of simi
lar offences have not been charged; for example a
person properly charged with driving his motor
vehicle at a speed in excess of the speed limit
cannot defend himself by saying that while he was
doing so other cars passed him going at a faster
speed and the drivers were not charged. Similarly
it is no defence against a ticket given for parking
in a no-parking area to state that other vehicles
parked in the same area were not ticketed. While
no law should be applied in a discriminatory
manner this is a matter for complaint to those
charged with the administration and not a defence
to an infraction of the law.
In view of the foregoing it is unnecessary to go
into any further details with respect to the various
attempts by plaintiff to personally prosecute Simp-
sons-Sears and others before Justice T. P. Callon
of the Supreme Court of Ontario, and before
Judge Soublière at the County Court level both of
whom according to plaintiff declined "jurisdic-
tion".
The Crown refused to prosecute these charges
and the first paragraph of plaintiff's application
for the issue of a writ of mandamus by this Court
seeks an order that the Crown so prosecute. This is
not a matter within the jurisdiction of this Court
despite the invoking of section 25 of the Federal
Court Act by plaintiff, and in any event, even if it
were, in the discretion of the Court with respect to
the issuing of writs of mandamus the issue of such
a writ would not be authorized as the decision of
whether or not to prosecute certain offences
against the Criminal Code comes within the juris
diction of the Attorneys General of the Provinces
in question and of the Crown prosecutors and are
administrative decisions. While I would not go so
far as to say that there are no circumstances in
which a Court having proper jurisdiction might
issue mandamus ordering a prosecution, this
would not in my view be a proper case for the
issuance of such a writ even if this Court did have
jurisdiction. The application is therefore dismissed
with costs.
ORDER
Plaintiff's application for a writ of mandamus
against defendant is dismissed with costs.
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