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Fabrikant's Trial <html><head></head><body><pre style="word-wrap: break-word; white-space: pre-wrap;">CANADA SUPERIOR COURT PROVINCE OF QUEBEC DISTRICT OF MONTREAL STAGE: TRIAL CASE NO. 01-017372-928 PRESIDING: THE HONORABLE JUDGE FRASER MARTIN, J.S.C. NAMES OF PARTIES: HER MAJESTY THE QUEEN Complainant -vs- VALERY FABRIKANT Accused NAMES OF ATTORNEYS: MAITRE JEAN LECOURS ATTORNEY FOR THE CROWN MR. VALERY FABRIKANT - ACCUSED REPRESENTING HIMSELF MAITRE GABRIEL BOUTROS AMICUS CURIAE DATE OF THE HEARING: AUGUST 4th 1993 OFFICIAL COURT REPORTER: MS. MAUREEN ROWE CLERK OF THE COURT: MS. CECILE PREVOST FICHIER NO.: 2438 BY THE HONORABLE JUDGE FRASER MARTIN, J.S.C.: I came in first of all without the jury for one reason in particular. I gather that was served, I understand there was served a motion that is presentable or was pre- sentable at nine fifteen (9 h l5) before the Court of Ap- peal this morning which in some substance asked the Court of Appeal to order me to recuse myself and in the second place asked the Court of Appeal to order that the trial continue under another presiding Judge. Am I... am I correct in substance with ... as to the con- tent of that motion? BY MAITRE JEAN LECOURS ATTORNEY FOR THE CROWN: Yes My Lord. BY THE COURT: What has happened to that? Are you able to tell me or ... BY THE CROWN: I went this morning to the Court of Appeal and they fixed the hearing of this petition at two o'clock (l4 h 00) this afternoon and we didn't receive any order to suspend the proceedings here and I submit to you that on its face, this ... this petition is frivolous because it's an interlocutory matter and the Court of Appeal already de- nied some motions from Mr. Fabrikant on the ground that it was interlocutory. BY MR. VALERY FABRIKANT ACCUSED - REPRESENTING HIMSELF First of all, he's not telling the truth. There was no motion denied on the basis that it was interlocutory. Maybe crown would quote one. BY THE CROWN: Sure. BY THE ACCUSED: All right, which one was interlocutory and it was denied for that reason. BY THE CROWN: This is the file, "Requˆte pour permission d'en appeler", it was the judgment of Mr. Justice R‚jean Paul. It was a motion in accordance with the Canadian charter and it was Mr. Justice McCarthy from the Court of Appeal who denied the motion on the ground that it was interlocutory. BY THE ACCUSED: All right. Why don't you tell them the whole truth? It was (inaud.) Mr. Hamel who asked for permission to ap- peal. If you would tell the whole truth, then it would be known that exactly the same motion was heard by the Court of Appeal when I presented it because I didn't ask for permission to appeal. That is the full truth, isn't it? Mr. Hamel, instead of presenting appeal, asked for per- mission to appeal and this is what (inaud.) do. They do something a little bit wrong, what they were not supposed to do, and judges, I mean crook judges (sic) are very glad, you know, to use that there is some kind of friend- ship between crook lawyers and crook judges. So crook lawyer does a (inaud.) work, crook judge takes it and have an excuse not to hear the motion. That was the case. BY THE CROWN: Anyway, My Lord, we didn't receive any order from the Court of Appeal to suspend the procedures here. BY THE COURT: Was the question raised with the Court of Appeal as to whether these proceedings ought to be suspended? Was Mr. Fabrikant present? BY THE CROWN: No, but the Court of Appeal could fix it this morning and they did not and there is a pending habeas corpus in front of the Superior ... the Supreme Court and we never received a direction from the Supreme Court to suspend these proceedings, My Lord. I don't see any ... any reason why we should suspend. BY THE ACCUSED: Well first of all Crown didn't answer whether my correc- tion was really what happened then. Would crown ... BY THE CROWN: It's clear, My Lord. An interlocutory appeal or petition is frivolous. The Court of Appeal has no jurisdiction. It's obvious. BY THE ACCUSED: Well ... BY THE CROWN: And I don't want to discuss the merit. I will discuss in the Court of Appeal but the case of Melser from the Su- preme Court says very clearly: "The charter doesn't provide for an appeal where none is provided by law. An interlocutory ap- peal in criminal cases has no basis in law." That's what the state of the law is, My Lord. BY THE ACCUSED: Well so you don't want to answer my question. All right. BY THE CROWN: I was not there for ... BY THE ACCUSED: All right. Now about interlocutory motions and appealabi- lity over those interlocutory motions, if you read more attentively, again regretfully I was not really provided with very much of jurisprudence but what I have here says the following: "There is an exception to general rule that in criminal matters, no appeal lies from interlo- cutory decision except ... You see, there is always "except" which crown thinks that I might miss and this except says: "... where a decision has the effect of termina- ting the proceedings." Now this is exactly the case we have here. Though you may call this decision as interlocutory but effect (sic) of this decision is that it terminates the proceedings. It terminates in effect the defence and since defence is terminated ... BY THE COURT: You're reading from what? BY THE ACCUSED: Well if you cared to ask me what I'm reading from, when I was reading the jurisprudence when Swamy was here, I would not have called you "a little old crook" and we wouldn't have the whole problem in the first place. BY THE COURT: You are reading from what? BY THE ACCUSED: I'm reading from Mills versus the Queen and I believe there is much more than just what I, you know, found by accident. This is the lawlessness of the situation. BY THE COURT: You're reading from Mills versus the Queen. What's the citation of that case and what page? BY THE ACCUSED: Yes, it is 26 C.C.C., 3-D, page 484 and on page 508, there is something which I believe also there is a need to take a look at. There is there something which is called universal de- claration of human rights which is not in contradiction with Canadian charter of rights but there is something universal there because the decision which was taken by Judge Martin is so outrageous, it is so unheard of that so far, any lawyer I spoke to, none can quote a similar case when defendant's part was just cut off because he insulted the judge which is total outrage. Now it says: "Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights guaranteed him by the constitution or by law." And after that, it says: "A remedy must be easily available and constitu- tional rights should not be smothered in proce- dural delays and difficulties." Now if you read this stuff, then it is quite clear that common sense tells that it was an extremely long and costly trial. Now the decision like this cannot possibly stand. There is no way the decision just to cut off the defence and where in the (inaudible) it's procedures when the major witnesses had not testified, when I have not testified yet, which is the most important part, this decision can- not possibly stand. Therefore what is going on is that you are trying to kind of save face and get out of the kitchen when it got too hot for you, that's all and you're doing the lawless pos- sible things which I don't ... BY THE COURT: I don't wish ... I don't wish a rehash on what you think of last week's decision. You were citing Mills and you were citing a particular part of Mills. BY THE ACCUSED: Yes. Now I'm citing page 508 and 509. Now if we read this stuff as normal human beings, then it is quite clear that this is a special case. This is an extraordinary case. It has never happened before that defence was just cut off, just like this, stop and that's it. We don't want the explanation the judge doesn't like how I address him. Well there is contempt of court for that and six months (6) in jail is more than sufficient pu- nishment for calling judge a crook. I think every normal person would consider it kind of a normal punishment and that should be it. It's for example if I kill somebody in court, my defence would not be stopped. I would be charged with another murder but this murder trial would proceed. If I slap, for example, Mr. Belleau in court, again my defence would not stop. I would be charged with an assault but that's what it is. You cannot possibly mix up one action with another. If accused (sic) commits another crime while he's in court, he should be charged with this crime and according to the law. It should not affect the current case.
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