GAMING HOUSE DEFENCE AFFIDAVIT POEM
IN THE MATTER OF REGINA vs. JOHN TURMEL ON CHARGES CONTRARY TO SECTIONS
201(1) x 2, 202(1)(e) AND 202(1)(c) OF THE CRIMINAL CODE OF CANADA
WHICH CHARGES ARE SWORN TO IN AN INFORMATION DATED THE 20TH DAY OF
JULY, 1993 BY THE OTTAWA POLICE FORCE.
Between
The Queen
Respondent
and
John C. Turmel
Applicant
AFFIDAVIT
I, John C. Turmel, who residing at two nine one eight (2918),
The Baseline Road, Nepean, do make solemn oath and state:
As only engineer electrical who specialized,
At Carleton University in course I realized,
Was given only there of all the schools across the land,
Where mathematics could be learned to draw the winning hand.
My fourth year engineering project used computer core,
To work out Poker odds and tactics never known before.
Unparalleled are my credentials in the odds of game,
Courts in Ontario, Quebec wrote "expert" to my name.
1993 CHARGES:
July of '93 saw Ottawa police compel,
The closure of the card casino run by John Turmel.
"You've kept a common gaming house, it's an illegal game.
You've kept a common betting house." The next charge to my name.
The "business of betting" was the third charge to be laid.
"Control of money from the betting" was the last one made.
But only "keeping gaming house" alleges cash for play,
While "betting charges don't apply to cards," the courts all say.
1989 BETTING CHARGES:
The PILON case in Montreal best said what made a bet,
So different from a gaming contract, "It's not hard to get.
If parties are to play an active role in the event,
If one is author of the win, it's gaming money spent.
But if event be independent of their active role,
Not gaming contract, it's a bet when they have no control."
Put cash on prize fight, football, hockey, betting is the deed,
But cash on cards or strokes of golf and gaming is the creed.
The LEWIS case explained at the Quebec Court of Appeal
Averment found essential so the betting charge to seal:
"To prove a betting house, ingredient I wish to see,
That bets have been recorded or it is a nullity."
To make a living gaming, the profession that I chose,
Is demonstratably legit, ask any Poker pros.
The government has always taxed the pros who ever win,
And never have they ever hinted skill at cards is sin.
It's gaming, it's not betting when your cash is on a card,
And yet they tried to link my cards to booking very hard.
In '89, my games of Blackjack faced a betting charge,
As were all found-ins at my game. The betting net was large.
The Crown and I agreed upon all facts. A "Stated Case."
Upon interpretations of pure law they made their case.
They even used me for the expert testimony sought,
No clearer case could judge have had to see if my game's caught.
So judge Fontana ruled that bets do not apply to cards,
He threw out all the betting charges. Found-ins waved regards.
Judge Lennox, on book-making, in the keeper trial for me,
Heard Crown withdraw the betting keeper charge submissively.
SUFFICIENCY:
For gaming house, said found-ins' lawyers, "Charges very lame,
They didn't even cite within the name of the game!
On page eight hundred twenty four, right in the Criminal Code,
On whether substance of offence disclosed of crime the mode.
In Canada's Supreme Court was the case of WIS adjudged,
From specificity of charges, they would not be budged.
They ruled that "When a crime could be committed many ways,
The charges would be "bad at law" without specific "nays."
An abstract charge does never to sufficiency amount,
You must identify transaction leading to the count.
Description of the crime must have enough to go as far,
To lift it from the general to the particular."
The BINGO case in Manitoba's high Court of Appeal,
Ruled "WIS" applied to gaming with five ways their doom to seal.
With five defences to the five descriptions of the crime,
Accused must know which of the five on which to spend his time.
Particulars cannot correct a charge that's "bad at law,"
This court finds "irreparable" the damage of the flaw."
The Bingo court opined that "WIS might overrule a lot,
Of cases like the GRISS of betting house that might be caught."
So WILSON case in Manitoba's high Court of Appeal,
Said "WIS applies to varied betting charges too, we feel."
The MILBERG case at Ontario Court of Appeal,
Contained an argument for WIS within the lawyer's spiel.
The case dealt with an "act-of-sex" illegality,
The court ruled "Bawdy house is really one activity."
Before my plea, Defence relied on BINGO, WILSON too,
But Crown cut short a MILBERG sentence to so misconstrue:
"We note respectfully the disagreement we do feel,
In BINGO with the Manitoba high Court of Appeal...."
Defence continued reading line, "`That WIS applies to GRISS,'
And GRISS does not like BINGO deal with acts of games remiss."
Since GRISS is betting house, they don't with BINGO disagree,
It's WILSON's betting house which eye to eye they do not see.
Like act-of-sex, the act-of-booking's easy to be seen,
But same for varied acts of gaming house, it doesn't mean."
Fontana ruled "Though keeper faces course of five to run,
Like MILBERG, found-ins have to face but definition one."
If first the keeper's tried and loses, automatically,
The found-ins are found guilty with no defence law can see,
But they were first to face the evidences to be met,
So same sufficiency as keeper's charges they should get.
1989 GAMING HOSUE CHARGE:
For found-ins in my gaming house, Fontana lucidly,
Considered each description of the charge so as to see:
"To gain out of a place from sale of food or drink is caught.
To charge an entry fee or take a cut out of the pot,
To run a game where odds of winning aren't the same for all,
To exclude found-ins from the bank, his game, if such, would fall.
But John Turmel, I cannot order that his games should cease,
None of these things were done to you. Go, found-ins, play in peace."
The insufficiency of the indictment's manifest,
Judge Lennox ordered Crown to "State particulars to test."
He then learned that Fontana had dismissed the charge because,
A game that's even up for all can't violate the laws.
No gaming house exists if found-ins' losses were all fair,
No gaming house exists if keeper won it fair and square.
He asked if Crown alleged another source of funds I'd gained,
Besides the legal winnings that Fontana has sustained.
Without a way to demonstrate unfair I ran my game,
"With nothing new, Fontana's right. Dismiss the charge the same."
With zero chance of overturning judgments crystal clear,
The Crown did not appeal. My legal gaming seemed so near.
1991 QUEBEC RAID:
In Hull in '91, I started card games once anew,
Police in "Operation Blackjack" laid both charges too.
SUFFICIENCY:
My lawyer argued BINGO, WILSON, all to no avail,
The Crown said "In Quebec we've ruled that MILBERG says they fail."
In BILLON-REY case heard at the Quebec Appellate Court,
To quash a gaming charge, Defence to BINGO did resort.
The court thought MILBERG also dealt with games, not sex offence,
And misconcluded "MILBERG challenged BINGO's games defence."
I moved before provincial judge "Like in Ontario,
Please order the particulars of crime. I need to know."
The judge ruled "BILLON REY court says no need to specify,
Unlike Ontario, you'll get no hint at what they'll try."
With trial looming soon ahead, no details did I know,
So writ of Certiorari is the way I chose to go,
To hear my motion on short notice, I asked Superior court,
Justice Frenette said "I will hear the plea you did report."
He ruled "With BINGO I agree though jurisdiction lacks,
Still Crown should state particulars so you have all the facts."
1991 BETTING & GAMING CHARGES:
Despite the criticisms and the urgings of the judge,
From the refusal to define, the Crown refused to budge,
And at my trial, "Particulars are sought, I wish to move,
Which definition of the five the evidence will prove?"
Again the judge refused. I faced an ambiguous task,
With every witness every definition I would ask:
"Did you see sales? Did you see rake-off? Did you see a fee?
Were you excluded from the bank or losing unfairly?"
Since each and every witness gave a "No" as their reply,
To each and every question, seems the waste of time was high.
Could not the Crown admit no rake-off and reduce the scope,
And if no fee or sales, with charge, why should I have to cope?
Nevertheless, the judge insisted that I spend our time,
And answer each and every definition of the crime.
In what would seem to be a contradictory retort,
Judge Bonin who presided in Quebec's Provincial Court,
Where once again I had the charge of gaming house to quench,
Put me in jail for near a month. It may have been the French.
And once again the betting charge was added to my list,
And once again a judge ruled betting charge should be dismissed.
In English, Judge Fontana could distinguish easily,
Between illegal "gain" and what is "winning" legally.
Unfortunately, French contains a great impediment,
Un seul mot "gain" for "gain" and "win." It was not evident.
If Bonin's right then every Poker game across the land,
Would be a target where the host oft held the better hand.
Pending appeal, my lawyer asked Quebec's Court of Appeal:
"Please grant release because he's not a public danger real.
No sentence should be served for he might be found innocent,
Denial of release is only for the violent."
The judge ruled that I was a danger to society,
Like crimes with violence, she could not set the gambler free.
With sentence served, there was no gain pursuing my appeal,
They never could replace the time and so I cut a deal.
I traded found-in charges dropped as proper route to go.
For dropping my appeal then moved back to Ontario.
Judge Bonin had made much of fact that "Though signs everywhere,
Players weren't orally reminded of their banking share."
So now there is a separate U-Bank game used by a few,
And now I offer bank right after each and every shoe.
ONTARIO PROVINCIAL POLICE :
In early '92, I opened game on Baxter Road,
A little room for cards with 14 staff to meet the load.
But little did I know that OPP had sent a mole,
Detective Joe Fotia playing skillful gambler role.
Quite good at cards, he and I played for evenings on end,
He'd have to note that no illegal monies did he spend.
Upgrading nine months later, off to Topaz went the few,
With now more than a hundred people staffing in my crew.
I also tried another game, Toronto was the site.
Despite the judgments given to police, they said one night:
"We're not impressed with what you or your court decisions say,
If you don't stop, you'll find we're going to bust you anyway."
I weighed the risk of records criminal for 50 staff,
A sorry situation, killing jobs makes no one laugh.
When I was forced to fire over 50 friends that day,
I buckled to the vigilante power many say.
LEGAL OPINIONS:
I vowed I would reopen and to start the battle right,
I sought opinions of some learned men of law to fight.
Niagara Falls had Gord McNab, a Counsel for the Queen,
He said "Fontana is correct. No gaming house is seen."
Another Q.C. in the Falls, a judge for ten years too,
His Honour Norman Young said "Here is my advice to you.
The judgment of His Honour Judge Fontana is correct,
It should be followed by the courts" is what I would direct.
If you rely on the opinions of McNab and me,
And that of judge Fontana and of Lennox, you'll agree.
You'll simply open up your game with betting on your cards.
You should enforce your rights and I'll take steps in those regards."
His letter to the OPP said "Though it may be strange,
But when a loophole found ago, the code they had to change.
I say that he as found such loophole in the law and may,
Continue playing till the legislators have their say."
LATE APPEAL:
Ontario's Court of Appeal, in March of '93,
Where Mr. Justice Finlayson heard my soliloquy.
"It seems I'm not acquitted to their satisfaction so,
I have appealed my own acquittal. Rare a move I know.
But threatening to raid what's been acquitted once before,
Is vigilante action by police and nothing more.
If they object to rulings by the judges of my court,
They should appeal, though even late, and not to force resort.
So even though appeal is Crown responsibility,
We've made it here. I will consent. Let's take it up and see."
The judge could not help out for an acquittal sealed the deal.
Too bad but only losers have right to file appeal.
1993 RAID:
In May of '93, announcing "Plans to grow won't stall.
Niagara Falls, Toronto, Brockville. Thousand jobs in all.
Unfortunately, the police had other plans in mind,
And it did not include three more casinos of my kind.
Two closely similar casinos opened up like me,
Though difference is esoteric, not easy to see.
That late appeal was option for the crown, I did exhort,
But choosing tactic of a raid, to force they did resort.
Since Saturday, with hundreds present, headaches would have made,
They picked a quiet Tuesday morning to begin their raid.
They didn't close the other games, on me their final laugh,
As they're now booming enterprise while taking on my staff.
Of other games the Crown is trying argument to sell:
"They must know how to run Turmel-style better than Turmel."
They didn't charge the staff or found-ins wanting only me.
I happened to be out of town. I thought I'd wait and see.
They wanted me to come to Ottawa so they could charge,
Me with all four offences cited. I remained at large.
A warrant issued cross the land told all police "Arrest,
And make the gambler dangerous with deck of cards your guest."
No fugitive be I for was official their demand,
Two hours later I gave up myself into their hand.
The next day at my hearing over 60 dealers came,
Protesting loss of jobs they know are legal just the same.
The Crown requested three conditions if I wished release:
"The thoughts of running games you should immediately cease;
A thousand dollars bail in cash, the next you have to face;
And keep away from Topaz Club where gaming crime took place."
I pointed out "I've never run from legal tests before.
There is no need for bail to keep me around to fight some more."
I further asked if playing Poker at my home is fine,
"Or does my running Poker game go cross the gaming line?"
When Crown could not respond the Justice of the Peace did say,
"Accused is well-known in community. No cash he'll pay;
I will not be restricting him from running gaming too;
But stay away from Topaz is the one thing he should do."
1993 CHARGES:
Again, the gaming count is framed in way the very same,
Again they didn't even cite the name of the game!
Was problem with the Poker or the Blackjack games I ran,
I haven't an idea why I ended in the can.
And once again my games of cards face charge of making book,
Not only one but three new betting charges to their hook.
With no paraphenalia for booking found to date,
The Crown says use of cards at games must betting indicate.
"Controlling betting money" is illegal all agree,
Convictions of the bookies is proof anyone can see.
But the "control of gaming money" is seen to be right,
At every Poker game occurring everywhere and night.
The "business of betting" is what makes a man a crook,
But "business of gaming" isn't even in the book.
Without essential element of "no control" to show,
The betting charge is nullity, it's "ab initio."
With people in the lurch and over hundred jobs at stake,
A legal eagle was my choice the move in court to make.
He got a date to try to quash the counts one week away,
And trial within another week, the start of legal fray.
PRE-PLEA OPTIONS:
Before I plead, I'll ask the judge, "Determine nullity.
Eliminate the betting charges. Quash them speedily."
The next move deals with gaming house though betting too applies,
It stops a Crown who won't give up and tries and tries and tries.
"Res judicata" is defence when court ruled once before,
Where parties had a judge with jurisdiction settle score.
But only at one's trial does plea "Res judicata" play,
Allowed should be another way to speed up judgment day.
Another possibility is "autrefois acquit,"
Where an acquittal once before is judged before a plea.
The same place and same time were thought to matter to the plea,
But they have no effect on many crimes you'll soon agree.
Issue estoppel's another plea that can be brought,
When issue's once before determined, no more debate is sought.
A stay of the proceedings is to stop process abuse,
When judge concludes the prosecution's has no excuse.
ANALOGOUS HOUSE CHARGE:
When Montreal charged ROTHMAN Realty, similar the case,
"You've kept illegal rooming house," the charge he had to face.
Though judge found "They're apartments and not guilty of the crime,"
The next year charge of rooming house was laid another time.
He pleaded Autrefois Acquit, "Let not the court be fooled,
There were no changes structural in house since last you ruled."
The Crown objected "Rules of Autrefois Acquit" do state,
It's always been restricted to such crimes with the same date."
Judge Lachapelle said "Then acquittals wouldn't recompense,
For situations where the date is of no consequence,
Since Crown could have him in the court anew day after day,
Though rooming house does not exist, initial court did say.
The city may prove subsequently alterations made,
For plea of Autrefois Acquit to fail to make the grade.
But for this house the Autrefois Acquit should be applied,
The structure once acquitted once again cannot be tried.
The only way the Crown has open if it's wrong, they feel,
Is challenge the original decision by appeal."
So as his structure found protection from ruling before,
So too the structure of my gambling house asks nothing more.
In CARRIER, a pamphlet was accused a second time,
Though once before a court acquitted pamphlet of the crime.
Again the judge said "Autrefois Acquit should be applied,
The pamphlet once acquitted once again cannot be tried."
INJUSTICE ANALOGY:
Wayne's Wonder Wiener Wagon case, direct congruity,
A man whose Wonder Wieners captured market solidly.
One day the mayor's indigestion rises from his dogs,
He'd wolfed down three of Wayne's most spicy Wonder Wiener logs.
Wayne's Wonder Wiener Wagon was impounded, corner lost,
With zero income while he waited, all he had it cost.
In court the mayor's allegation "Indigestion meant,
The Wonder Wieners held more fat than fifty two percent."
At trial he had an affidavit, butcher in the know,
"Those links I made with meat aplenty. My receipts will show."
The final proof his recipe fell well within the line,
The tests at Corporate Affairs showed Wonder Wieners "fine."
Wayne's Wonder Wieners were acquitted of their fatty rap,
But getting back into the business wasn't quite a snap.
Yet once his wagon opened after much financial pain,
The mayor got an indigestion. Pressed the charge again.
Again they seized his Wonder Wiener Wagon. To the mat,
He'd go broke well before he'd answered charge his dogs were fat.
Should jurisprudence not provide the innocent to say,
"I've been acquitted once before. Abort unjust delay."
PROBLEM:
I face the same predicament that's making Wayne so blue,
It was the method that I used and not my person who,
The judge acquitted when he ruled my game was fair and square.
Can it be said what's fair and square depends on when and where?
Has not a new class been created, crimes of enterprise?
Should novel use of autrefois acquit not too arise?
Most crimes of enterprise are independent of the place,
Our recipes acquitted should prevail in every case.
SUFFICIENCY:
At motion to the Judge Nadelle that charges quashed should be,
The lawyer made the case for what I thought was plain to see,
The BINGO case on gaming house says standard to be met,
"Specifically, which of the five descriptions he should get.
The same lack of precision is within their charge anew,
But WIS and BINGO say particulars should never do."
The Crown said "BILLON-REY applies and makes the BINGO fail,
Since MILBERG says that BINGO's wrong, there'll be no more detail."
The Defence stressed that MILBERG dealt was sex, not game offence,
And pointed out that BILLON-REY had missed the difference.
Yet Judge Nadelle ruled BILLON-REY said BINGO can't apply,
So that "Like MILBERG's bawdy-house, no need to specify."
Though ruling "To the charge of business of betting will,
Apply the WILSON ruling that no info needed still,"
But where the WILSON court quashed "keeping" charge as not complete,
My judge told me that "Still the keeping charge you'll have to beat."
If this is so, the Code must have a lot of lawyers fooled,
Not knowing BINGO WILSON are by MILBERG overruled.
It seems that only in Quebec, Ontario we find,
Decisions misinterpreting the MILBERG state of mind.
ARRAIGNMENT IRREGULARITIES:
But worst of all catastrophes was still to me befall,
The Crown found callous way the trial successfully to stall.
With courtroom booked and magistrate found free to give his say,
The Crown announced the prosecutors off on holiday.
So though a hundred expectations pinned on justice swift,
The Crown announced "We still have evidence though which to sift.
We've only had three weeks and look at mountain that we face:
Ten boxes of materials pertaining to the case."
You'd think that after eighteen months investigating fact,
A hundred wouldn't suffer cause together ain't their act.
Denial of swift justice must result from trial's delay,
When only reason given is "The Crown's on holiday."
At my arraignment did irregularities unfold,
When "I am taking over my defence" the court was told.
They were to ask me how I pleaded, guilty or a fight,
If I pled guilty, I'd be sent to court that sentence might.
If I pled innocent, they'd pick to have a trial a date,
But pre-plea motions must be heard before I must so state.
Yet Justice of the Peace informed me that "A date is set,
So that next month before Judge Lennox pre-trial will you get.
When Crown heard Lennox who'd acquitted me was to be judge,
The date they'd chosen as acceptable they had to budge.
I said I have a motion first before I make a plea,
Please send it to a judge to hear my "autrefois acquit."
He said "You can present your motion on the pre-trial date,
There's nothing else that I can do so you will have to wait."
I asked the Crown what happened in the backrooms of the court,
I got no notice of their application to report.
When I objected that I hadn't had the chance to make,
The plea of guilty and my punishment by court to take.
He said "That's wrong. You've had your chance to make a guilty plea,
You've been inscribed as having pled "not guilty," as you see."
"That is impossible," I said, "My "autrefois acquit,"
Is to be heard before I have my choice of guilty plea.
So having booked ex-parte pre-trial means you've stripped away,
My chance for special pleas, in order to prolong delay.
That Crown's assumed I've pled "not guilty" indicates a flaw,
They've skipped some steps and closed some options for me in the law.
I don't see how a pre-trial on assumption can be set,
When chance to even make a plea, I never yet did get!
CHARTER:
We find within the charter of our new Canadian Rights,
A list of things we may all do, a simple list of "mights."
We might associate, we might assemble peaceably,
We might pursue our livelihood employed all gainfully.
We might not suffer being searched or seized unreasonably,
We might not be detained, imprisoned arbitrarily.
We might be told, if once arrested and without delay,
Specifics of the charges that our actions caused that day.
We might not twice be tried for an identical offence,
This charter right for all acquitted as a recompense.
We might not suffer cruel or unusual abuse,
We might be treated equally. The Crown has no excuse.
These rights have been denied me and the strongest for my case,
I've been acquitted once before and nothing new took place.
This case at bar is clear injustice covering the blame,
Due to a government not qualified to run the game.
I've demonstrated that the small casinos need not wait,
And we Canadians for work need no more hesitate.
____________________________
John C. Turmel, B. Eng.,
2918 Baseline Rd.,
Nepean, Ont., K2H 7B7,
Sworn before me at the city of
Ottawa in the judicial district
of Ottawa-Carleton
on Nov. 15, 1993.
____________________________
A COMMISSIONER, ETC.
Send a comment
to John Turmel
Home