BACK TO ONTARIO AFTER QUEBEC CONVICTION
The direct contradiction between the judgments of Judges James
Fontana and Brian Lennox of Ontario who acquitted my Blackjack game
and Judge Jean-Pierre Bonin of Quebec who convicted it on the
identical circumstances may have left some under the impression that
Judges Fontana and Lennox may have been wrong. Many people think the
most powerful decision is the latest decision. This is not so. The
most powerful decision is the most logical decision so I wrote to all
the media pointing out the doubt created and wrote an article with the
legal explanation of why the Ontario judges were right. Because the
media have failed to air this explanation I've published this short
but complete story of trial of Casino Turmel in Hull to clearly dispel
any doubt. Someday, I might publish the transcript in a book.
ARE ALL GAMBLING GAINS ILLEGAL?
I graduated in electrical engineering from Carleton University
where I took Canada's only Mathematics of Gambling course from Dr.
Walter Schneider and was his Teaching Assistant for four more years.
I've been accredited by the courts as an expert witness in gambling
four times.
Some of the important decisions of case law on Blackjack is very
clear:
R. v. MACK (1960), Sheppard J.A.:
"The accused did not admit nor is there evidence that in the
games as distinguished from this one occasion he kept the bank to the
exclusion of the other players or that the place was kept for the
purpose of such games in which he was the exclusive banker."
R. v. ROBERTS (1936), McGillivray, JJ.A.:
"No conviction can be made on such a charge in the absence of
proof that a "bank was kept by one or more of the players exclusively
of the others", notwithstanding a prima facie case of keeping a common
gaming house has been shown."
R. v. HUNG GEE, Beck, J.:
"If the players have an equal chance of becoming banker from time
to time, that is, if the method of the game is not that one or more
becomes exclusively the banker, then it seems to me that chances of
the game are equal or alike favorable to all the players in the only
sense in which it was intended they should be or could be."
R. v. HING HOY (1917), Harvey C.J. (dissenting):
"His explanation of the game is far from clear, but it is by no
means necessary to learn from it how to play the game. All that is
necessary is to determine whether there is a bank which is kept by one
or more of the players exclusively of the others." Beck, J.:
"If my interpretation of Rex. v. Hung Gee is correct ...the
provisions are not directed against a game in which, though a bank is
kept, the chances of being the banker are equal to all the players."
R. v. MONROE(1971), Taggart, J:
"The rules of the game must preclude some or all of the players
from having an equal opportunity to become a banker."
In trying to find a legal way to play Blackjack, I was convicted
of running a gaming house five times between 1977 and 1989.
In 1977 where all players were allowed to be the banker against
the rest of the table, the judge ruled that it was still a gaming
house because the poorer players would not be able to afford to take
the bank and hence, not all the players did take the bank. That this
was due to their own finances and not a rule of the game was ignored
but I then decided that each player would play against me heads-on and
could bank me at stakes they could afford. Finally, in 1989, this way
was accepted as legal and I was acquitted because Ontario Provincial
Court Judge Fontana and Judge Lennox ruled:
"The advantage that is derived to any individual by reason of his
own skill and in playing the game in no way confers an unfair
advantage as contemplated by the Section."
This concurs with all other judges in Canadian legal history.
It's why playing poker without a rake-off is legal.
In 1991, Quebec Provincial Court Judge Bonin, saying he had no
doubt I'd kept the place for gain after testimony showed I had won
$64,000 at Blackjack and $20,000 at Poker, ruled that any gain through
gambling, skillful or not, was illegal.
If the Bonin interpretation were correct and I keep hosting my
weekly Poker games where I expect to gain from my skill at cards, I
would be liable to gaming house charges. That Judge Bonin is wrong and
every other judge in Canadian history are right will become evident as
you read my case.
WHAT IS A GAMING HOUSE?
Section 197 provides five possible definitions of a gaming house.
Subsection (a) states any gain on gambling not directly made from
gambling is illegal. Sales of refreshments are usually so charged.
Subsection (b) prohibits the four gains directly from gambling:
(b1): if I excluded someone from being the banker at Blackjack;
(b2): if I raked the Poker pots;
(b3): if I charged an hourly fee or admission;
(b4): if I had an unfair advantage in the game.
In a nutshell, Subs.(a) says all non-gambling gains are illegal
and Subs.(b) says four gains from the gambling are illegal.
RES JUDICATA: 1989 ONTARIO ACQUITTAL
In 1989, I was tried for keeping a common gaming house at the
Bayshore Hotel in Ottawa. They threw in a bookmaking charge, common
betting house, to pad the charge.
Before I was to be tried by Judge Lennox, I testified for the
Crown as an expert witness in gambling matters in the the trial of the
found- ins before Ontario Provincial Court Judge Fontana and got to
explain all the statistics. Judge Fontana reserved his decision for a
week.
At my trial a few days later, Judge Lennox wanted to put if off
until after Judge Fontana had ruled but I pleaded he hear the case
then. I explained that if Judge Fontana made the wrong decision, he'd
be the laughingstock of every statistics faculty in the country. If
Judge Lennox threw out the keeper charge against me first, then Judge
Fontana would be spared the possibility of making an error. Judge
Lennox agreed to let the case proceed but eventually reserved his
decision until Judge Fontana's ruling.
In his decision in the case of the found-ins, Judge Fontana
ruled:
"Common gaming house is defined in five ways.
On the evidence alleged by the Crown and accepting the testimony
presented on behalf of the Crown by Mr. Turmel, the operation in this
occasion clearly does not fall into the first four categories. That
is: a place kept for gain or for playing games where the bank is kept
by one or more but not all of the players; where there is a rake-off
to the house as mentioned in subsection (2); or where there is a fee
charged.
Clearly, none of these first four criteria apply. If the
operation on this occasion is to be caught, it must be caught with
respect to the subsection four which I quote:
"Kept or used for purposes of playing games in which the chances
of winning are not equally favorable to all persons who play the game,
including the person, if any, who conducts the game."
So Judge Fontana made it very clear. I didn't make any gain not
due to skillful gambling, I didn't exclude anyone from being the bank,
I didn't rake pots, I didn't charge a fee to play. The only question
left was whether I had an advantage that the other players didn't
have.
MUTUAL EXCLUSIVITY
The Crown's case on this point rested on the fact that I could
play with everyone and they could only play with me or my agent. The
Crown contended this gave me an advantage over the players who could
not play with each other.
This idea violates the statistical law of "Mutual Exclusivity"
which states that events that are independent of each other have no
effect on each other. Extended to gambling, it means that if you are
getting a fair game with me playing heads on, it doesn't matter what
I'm doing with anybody else, it does not affect our game.
Here is how I won the point by trapping the Crown's expert
witness, OPP Sgt. Andy Durno, into a contradiction during cross-
examination. This got really funny because I had originally objected
to his being granted expert witness status on questions of mathematics
of odds even if he was an expert on gaming houses in Canada. The Judge
ruled that he would accord him expert status but I could object when
he gave testimony as to mathematical questions out of his expertise.
First, I got him to admit that if were playing Blackjack heads on
and we both had the opportunity to be the banker, he was getting a
fair game. Then I sprung the statistical trap.
Q: If someone else came into the room and starts flipping coins
with me, does it change your odds of winning?
A: No.
Q: Let's say only I can flip coins with him and you can't flip
coins with him. Does that change your odds in the Blackjack game?
A: Not on the Blackjack game.
Q: Another person comes in and I start playing Blackjack with him
at another table, a different shoe, a different set of cards, you
can't play Blackjack with him, only I can, and I'm still playing with
you, does that affect your odds?
A: Not between you and me on the one-on-ones, rotating the banks,
no sir.
So there was the admission out of the Crown's own expert. If you
are getting a fair game with me heads on, it doesn't matter that I'm
playing with everyone and everyone's playing with only me. The Law of
Mutual Exclusivity says that if you're getting a fair game heads-on,
you're getting a fair game no matter what I do elsewhere.
When the Crown started to see where I was leading him, she
objected that her own expert did not have the expertise to be allowed
to answer my mathematical question. When the judge asked me what I
thought of her objection, I said "Well, I assumed he was accepted as
an expert unless I objected. And I'm not objecting." The judge let me
continue.
As to Judge Fontana's ruling on Mutual Exclusivity, he wrote:
"If a player exercised his right to be a dealer, then that person
played against him and not against the other players at the table.
Those other players would then go to another game which would be
played with an agent of Mr. Turmel at another table or perhaps play
among themselves. Having regard to the criteria and the definition set
out in the definition section, I DO NOT CONSIDER THIS TO BE A
CONSEQUENTIAL ELEMENT in determining the lawfulness or the
unlawfulness of the game. The wagering is between two contestants
only."
FONTANA GAMING HOUSE DECISION
So, Judge Fontana saw that whether players could play with each
other or not was not a consequential element of the game. It had no
effect. His final ruling was:
"I have examined the testimony given by both Mr. Turmel and Sgt.
Durno in their capacity as experts. As I have pointed out before,
their testimony is remarkably coincident.
The decision in R. v. Monroe, 1971, C.C.C. (2d) page 68 , where
Mr. Justice Taggart says as follows:
"After reviewing a number of decisions, it appears to me that
mere possession of the fund which constitutes the bank does not render
the possessor the keeper of a common gaming house. Two other elements
appear to be required. The bank must confer on the banker some
advantage over the players in the game. The rules of the game must
preclude some or all of the players from having an equal opportunity
to become a banker.
It seems clear on the evidence that the dealer/banker derived no
advantage over the other players by reason of his position. It seems
clear that the rules provided for the changing of the bank dealer, in
the event that a player "tapped" the bank, the opportunity to do so
was available to all players equally."
That, in my opinion, is precisely the situation that I have here
before me today, as testified to by Mr. Turmel and as evidenced by the
posters and the general evidence. While there was a small advantage to
the banker/dealer, nevertheless that opportunity to be the
banker/dealer was available to all players who participated in the
game.
I draw emphasis to the words of Mr. Justice Taggart, "advantage
over other players by reason of his position," because the position
being referred to there is the advantage derived from his position as
banker/dealer, not by his qualifications or capacity as to his own
personal skill. THE ADVANTAGE THAT IS DERIVED TO AN INDIVIDUAL BY
REASON OF HIS OWN SKILL AND IN PLAYING THE GAME IN NO WAY CONFERS AN
UNFAIR ADVANTAGE AS CONTEMPLATED BY THE SECTION."
Judge Fontana makes it very clear that winning skillfully is not
an illegal gambling gain.
One last important point was that the found-ins were tried before
the keeper. Since Judge Fontana ruled that each individual had
received a fair gamble, Judge Lennox concurred that no combination of
fair gambles for the found-ins could add up to an unfair gamble for
me. In Quebec, they did it backwards which I'm sure helped confuse
them.
FONTANA BETTING HOUSE DECISION
As for the bookmaking betting house charge, Judge Fontana ruled
that card-playing fell under private bets between individuals. That's
why there's no bookmaking with cards.
Judge Lennox concurred with him and dismissed the keeper charge
against me. They were pretty convincing wins. Both judges ruled there
was no evidence of unfair gaming and I didn't even have to put on a
defence. That the Crown did not appeal indicates that they understood
the righteousness of those decisions.
CASINO TURMEL IN HULL
So why was I convicted in Quebec? Are the laws different for
Quebec? Not supposedly. The Criminal Code applies across all of
Canada. I chose Hull to set up my games room because the Hull police
had always been very friendly when I ran my casino off the Hull pier
in 1980. They would even come on board and keep an eye on things. Even
though the QPP eventually busted me and I lost my case, I felt they
would be the force most likely to admit that I'd finally found a legal
way.
I hired a lawyer, Pierre Bourget, to alert the police and Crown
of what I was planning to do. He advised me to go ahead but tried to
cover his bases by asking for a ruling out of the Quebec bar. They
never answered.
I had a meeting with Hull Police Lt. Poirier where I left him all
the relevant documents including the judgments of Lennox and Fontana
which he passed on to the Crown. When I spoke to him a month later, he
said "If you do it the way you said in your letter, go right ahead." I
taped my calls.
So I found a nice location and applied for a business license at
City Hall. There wasn't going to be any business done but I wanted to
satisfy the most stringent requirements. I filled out the forms and
started setting up. City Hall gave me four conditions. I couldn't have
any Poker machines, no live shows, no alcohol, and they wanted a
letter from the Hull Police stating I wasn't breaking the law. How
many other enterprises have to get a letter from the police saying
their bar or restaurant is not illegal? I never got the letter but I
made sure to abide by the other three conditions before going ahead.
I wrote to Lt. Poirier to inform him of my opening and told him:
"As promised, I am now filling you in on the details of how my
private Blackjack and Poker casino room will work. The concept behind
people legally earning their living is established by the fact that
many people already earn their livings dealing cards at other forms of
legal gambling.
All Blackjack staff will be agents hired by me to either deal,
play, or supervise Blackjack in my stead and will be paid a minimum of
$5 per hour and receive a share of tips. Such agents are not employees
but are independent contractors. All agents who are not Blackjack
agents of John Turmel work solely for tips with a base of $5 paid by
the tip pool. The remainder of tips is divided on an hourly pro-rated
basis among all casino agents.
Agents who are not Blackjack agents include waitresses, doormen,
attendants, cleaners, drivers and Poker dealers. Since gamblers are as
likely to tip a waitress or doorman as a Poker or Blackjack dealer, it
should be possible for a Poker pit to create jobs and sustain any
expenses without costing me any money. I don't mind offering people a
service without necessarily profiting from it. With no rake-off in it
for me, I have nothing at all to do with Poker other than making sure
that it is properly and honestly organized.
All Blackjack players will be allowed to play only upon
completing the following requirements.
1) Provide suitable identification for free registration;
2) Take a turn at the U-bank table for as long as they wish at
any stakes they might wish;
3) Sign a enclosed declaration that they have not been excluded
from taking the bank, have taken the bank and understand that they
have an open invitation to take the bank at any time they wish at any
stakes they wish.
Upon completion of these requirements, a Blackjack player may
participate in play with me or one of my agents.
I reserve the right to decide who I will gamble with and if I
ever refuse entry to someone for any reason, they are always free to
invite people to go gamble under their own auspices."
I opened in late May with my yearly Canadian Open Hold'em Poker
Championship. There were 47 entrants and $18,000 in prizes, a big
success.
I had four Blackjack tables and four Poker tables though there
were rarely more than two Poker games going at once. The Poker tables
were operated without a rake-off to me but it generated enough tips to
create several permanent jobs for the dealers. The Blackjack tables
were run by my agents and anyone could go to another U-bank table if
they wanted to play the banker side of the game. Many people did. Some
pooled their resources to take the bank against me.
The only way I made money was by winning it and I thought I had
all my definitions covered. If I could do it legally, small
neighborhood casinos could start up in thousands of small towns across
Canada giving people without jobs a chance to cater to people with
jobs. Small casinos also had the advantage that the jobs wouldn't be
restricted to just a few large cities but would be spread out evenly.
Another benefit of small town casinos would be that the money would
stay in the area.
MUNICIPAL BY-LAWS
I must admit that I did wave a big red flag in their faces. I put
up a 16 foot sign CASINO TURMEL over the front door. In early June at
a Hull council meeting the alderman for my ward, Ghislaine Chenier,
complained about the casino. She was worried about noise and the type
of people who would be attracted there. Andre Jolie, CJRC reporter,
came and did an interview. I told him there was no noise. It wasn't
like big casinos with noisy slots, bells and sirens. It was the quiet
clicking of chips and subdued conversation where 90% of the players
knew 90% of the other players, more like a social card club than a
noisy casino. There had been no complaints and would never be. And the
people who were attracted were actually the right type of people.
But the politician started the ball rolling. Soon, the papers,
radio, television started doing stories. Some headlines:
910614 Citizen: JOHN TURMEL'S SURE THING?
It explained the politician's complaint, how I operated without
a rake-off and with no exclusion of the bank.
910615 Le Droit: HULL HAS QUEBEC'S 1ST CASINO; A PROJECT NOT
MAKING HAPPY
It started by saying Quebec politicians and businessmen who were
vying to start casinos had been trumped by my opening. Francois Gagnon
did a lot of research and impressed me with the depth of coverage. The
article explained the loopholes and quoted the "directeur general
adjoint Jacques Filiatrault who admitted that "Turmel doesn't need any
particular permit to legalize the activities of his casino."
I heard radio stories with the police pleading that they had
investigated and there was nothing they could do through the Criminal
Code and that the city was looking for municipal by-laws to shut me
down.
On the night of July 3, Sgt. Baizana showed up to serve me with a
letter from Rejean Martineau of the Hull permit department ordering me
to apply for an occupation permit within 24 hours or to be out. There
were copies to the Chief of Police, the municipal tax officer, several
other people including Jean Pierre Chabot, the city's assistant
general manager and Paul Tanguay but their boss Mr. Filiatrault, the
directeur general adjoint who had said I didn't need a permit, was not
sent a copy. Isn't funny how the junior execs were given copies but
the boss who had already made a statement on the subject was not? How
objective could their discussions have been when they excluded the
boss who had contradicted them in the first place?
It said that no one may occupy a lot of construction without an
occupation permit. This is usually the case for new buildings but I
doubt it applied to buildings that had already been accepted as
permissible by the city.
It further said that I should cease occupation within 24 hours so
they could evaluate if the rules have been respected. It ended
ordering me to comply within 24 hours or legal action would be taken.
I paid my rent. Why didn't they just come and check? I was
prepared and was sure I'd have passed since I'd observed the
commercial regulations. They wanted me to stop in case something was
wrong. Shouldn't they have been finding a reason to shut me down and
not shutting me down until they could find one. Why should I shut down
and lose my rent money? The landlord certainly had no legal reason to
return it to me. Such prior restraint has potential for error. If I
had properly complied with the rules, I would have been shut down for
no infraction. So it boils down to whether one needs a permit to rent
a large room for private non-commercial purposes.
On the CJRC radio news, Mayor Michel Legere was quoted saying
that though they didn't do any research, "he has no permit. There are
no rules permitting such an operation." But are there any rules
against it?
I started using the analogy of someone who liked to play Monopoly
with 50 other people on a huge gameboard. He rents an old restaurant
with the proper capacity and soon he and the 50 others are playing the
game. The mayor goes by one day and sees all these people playing
Monopoly through the window. He is not pleased and wants it stopped.
Though there is nothing preventing the game from being played, he
points out "there are no rules permitting such an operation." So what
is not not illegal is still not legal with his permission. He
essentially wanted me to get his permission to do something that was
not illegal. I think the general rule should be that "what is not
proscribed is legal," as opposed to "what is not proscribed is legal
only with permission." Though government seems to be moving to the
idea that one needs a permit for everything, it doesn't seem very
democratic.
The important question is whether or not an individual has the
right to rent a hall and do what he pleases that is legal without a
permit. Since I already had another permit application on the go, I
didn't bother applying so they could turn me down. Nothing happened.
910704 Citizen: HULL AIMING TO PULL PLUG ON TURMEL CASINO
It mentioned that the city said I needed an "occupation permit"
and they would seek an injunction in court. Paul Tanguay, the city's
man behind the scenes said they wanted me to close for an inspection
to ensure I did meet all the by-laws but I responded that what went on
in private was none of their business. He also said "all occupants of
public buildings must apply for the permit." This wasn't a public
building, it was private. Anyone may enter a public building but only
those invited by me could and I could throw anybody out to prove it.
They keep using this terrible picture of me from several years ago
when I was 40 pounds heavier than I am now. It shows me with a
laughing face and I look like Batman's Joker. They really love that
picture.
Le Droit: CASINO TURMEL MUST GET PERMIT
It mentioned that I hadn't applied for the permit and they were
going to pursue me in court. It mentioned how city hall had told me I
didn't need any other permit once I had applied for my business
licence.
Le Droit used recent pictures which came out good and even the
older ones they used were good ones. What I look like today is not the
same as the person pictured in the English papers.
On Thursday July 4, I heard on CHOT-TV that they were looking to
serve me with a summons to appear in court on Monday. I found it
premature for them to announce a Monday hearing when I still hadn't
been served. And it just so happened that I was just taking off for a
few days rest at the cottage. I wasn't going to wait around for the
bailiff so they had booked their hearing for nothing. I wouldn't make
it.
910705 Sun: TURMEL TALKIN' TOUGH
It mentioned that I'd prove my place was a private premises by
throwing out any city officials who tried to enter uninvited. They've
got this lousy picture of me from a political meeting wide-eyed with
my mouth agape.
On Friday July 5, Sgt. Baizana showed up looking to serve a one-
hour ultimatum to get out or he'd be back. From the cottage I
instructed my managers to obey if he came back with an injunction or a
search warrant but to ignore him otherwise. And hour later, he
returned. Not with more police but with a summons. Some people had
originally been scared by his threat but I thought it was a bluff. He
must have been steaming.
Yet, they had put pressure on my landlord. They had served him
with a summons for allowing me to rent his premise without an
occupation permit. He was storing some stuff in the upstairs unit and
didn't know he needed a occupation permit to use his own building. So
much for his property rights if he can't use use his own premises
without a permit. It seems that Pierre Tanguay threatened to have him
charged with gaming house. Not wanting any trouble, he gave me my one
month's notice according to our lease. He would lose a tenant during a
recession making him the only loser in all of this.
Pierre Bourget took the summons to municipal court and had the
hearing on the by-law violation put off several months. I felt pretty
good. Not being able to use the Criminal Code, they had resorted to
Municipal Code and had been stymied.
BIG RAID
I guess that with the failure of the Municipal Code, all they
could do was go back to the Criminal Code and pull a raid. They called
it "Operation Blackjack" and invited media from all around. I was
playing poker when the police started streaming in. They cordoned off
the street and made a huge production of carting off everyone and
everything, including my sign. They didn't have to take everyone in
and they didn't have to take the money from their pockets and purses
but they did anyway. They paraded everyone before the cameras into
their paddy wagons and generally made sure no one would ever want to
be found gambling there again.
And yet, they refused to say how I had broken the law. I had
always stressed that the police themselves only weeks before had said
their investigation showed I was not breaking the law. What had
changed since then to cause my game to suddenly start breaking the
law. It is evident that the only thing that could have changed was
their interpretation of the law.
It became quite amusing when radio reporters would press them.
CBOF radio's Cathi Saumure reported that the Hull police remain vague
on how they were going to prove I was gaming house and taped Baizana
saying they had proof but it couldn't be revealed. At no point would
they say how it was I was supposed to have broken the law and I kept
challenging the media to find out.
910718 Citizen: POLICE ARREST 22 IN RAID ON HULL CASINO
It included my quote "They can't prove I excluded anyone from
being the banker and they have to do that to prove gaming house
charges." Sgt. Baizana was quoted calling the clients regular guys,
"not hardened criminals." The police chief Lorrain Audy said that the
case was different from the one in Ontario but wouldn't say how.
Sun: COPS BUST CASINO BOSS IN HULL RAID
Le Droit: JOHN TURMEL ARRESTED AND HELD; RESIDENTS DIVIDED
It got the quote right too. The Crown had participated in the
decision to raid. They weren't going into this with their heads down.
It also included quotes from residents who had not been bothered at
all and who thought the money could be better spent policing the bar
section of town.
I was manacled and sent to the Hull jail for the night. The next
morning, Pierre Bourget told me that the Crown, Michel Swanston,
agreed to have me released if I agreed to stay out of Hull except to
visit my family or lawyer or to end casino operations. It's a
condition they impose for the release of prostitutes or others they
want to get out of town. If I objected to the condition, the Crown
would ask for the weekend to prepare their case against my release. So
I allowed myself to be coerced into accepting being chased out of
town. I was brought in manacles before the court and released until my
plea in a few days.
I was charged as follows:
Count 1: "John Turmel between May 24 and July 17, 1991, at Hull,
did keep a common gaming house committing a criminal act contrary to
Section 201(1) of the Criminal Code."
Count 2: "John Turmel between May 24 and July 17, 1991, at Hull,
did keep a common betting house committing a criminal act contrary to
Section 201(1) of the Criminal Code."
Notice that Swanston forgot the address.
At disclosure, Swanston presented Pierre with a statement from
the one he claimed was his expert witness who had attended the game
and who had concluded that because he could not play with the other
players, it was a gaming house. I wondered how any gambling expert
could fail to understand Mutual Exclusivity and what credentials he
had which would allow such a statistically erroneous conclusion.
Certainly no credential to match mine or the expert witnesses I was
going to present.
Pierre also indicated the Crown was going to contest divulging
the particulars of which game they thought was illegal and which
definitions of a gaming house were supposed to be violated. How could
I possibly defend without this information. If they had evidence of a
roulette wheel, I would have pleaded guilty. With evidence of craps,
I'd plead guilty. With evidence of someone charging a rake-off or fee,
guilty again. But without this information, how could I ever know what
I should plead.
AU REVOIR QUEBEC, HELLO ONTARIO
I announced that I was going back under the auspices of the two
Ontario judges who had acquitted my style of game until the question
was decided for Quebec. My partner Pauline put up large letters on the
front windows saying "Au revoir Quebec, Hello Ontario." They were torn
down within days. We had a goodbye party but Pierre advised me to keep
out of Hull. Within three weeks, I was back in operation out of the
party room in my home from where I had already operated for two years.
910719 Citizen: TURMEL PLANS OTTAWA CASINO; WIDELY-KNOWN GAMBLER
UNDETERRED BY RAID IN HULL
It mentioned I was moving back to Ontario. Ottawa Alderman Darrel
Kent said "As long as the activity is legal, we should not be moving
against him." I thank him for speaking his mind.
Sun: HULL OWNER CRIES FOUL AS COPS CLOSE CASINO; PLANS MOVE TO
ONTARIO
They used the same lousy picture again.
Le Droit: TURMEL WANTS TO GO AFTER CITY
It mentioned that they compared my case to Dr. Henry
Morgentaler's case where he was repeatedly charged even though he was
always acquitted. It mentioned my interview with Lt. Poirier. It
quoted Sgt. Yves Martel saying "the proof will be presented at trial,
without however specifying what would permit them to overturn the
Ontario judgments."
910722 Citizen: CASINO OR SPACIOUS REC ROOM?
It quoted Department of Justice Donald Pigaroff saying "Private
betting, privates games are fine as long as the person who is
operating the game is not getting some extra benefit out of it and the
odds are not in favor of the house." He mentioned "Even the fact you
were buying drinks in a place, and therefore the place is making money
out of the fact that you were there, makes it illegal." That's the (a)
subsection which I wasn't doing. There were no sales.
910723 Sun: CASINO ON ITS WAY
They used the same picture again but this time reversed so that
I'm now looking from left to right. It makes people think there are
two bad pictures of me.
MOTION TO QUASH
On July 24 before Provincial Judge Tache the Crown made a motion
to amend the indictment to add the address which they had forgotten to
include. Pierre Bourget objected. Then Pierre made a pre-plea motion
to quash the counts on the lack of specificity.
He cited the WIS decision at the Supreme Court of Canada which
stated that where a crime can be committed in several distinct ways,
it is "BAD IN LAW" not to specify the way.
Pierre relied on Section 581 of the Criminal Code which mandated
that "a count shall contain sufficient detail of the circumstances of
the alleged offence to give to the accused reasonable information with
respect to the transaction referred to."
He cited the BINGO decision at the Manitoba Court of Appeal which
ruled that because a gaming house has five different definitions, the
count must specify which of the five definitions applies or it is "BAD
IN LAW." BINGO also suggested that WIS applied to bookmaking betting
houses charges.
The Crown relied on the MILBERG decision at the Ontario Court of
Appeal which ruled WIS did not apply to bawdy-houses because there
were not several distinct possible activities. For the same reason,
they did not agree with BINGO that WIS applied to betting houses
because bookmaking is basically just one activity.
The Crown then relied on the BIBEMATIC decision at the Quebec
Court of Appeal which concluded that since MILBERG disagrees with
BINGO on betting houses, it must also disagree on gaming houses. Yet,
MILBERG does not say it disagrees with BINGO with respect to gaming
house, MILBERG only says it disagrees with BINGO as to betting house.
Though I agree that bookmaking and prostitution are one inherent
activity, the fact gaming house includes five puts it in a class by
itself and BINGO was right all along. Perhaps the French judges of the
Quebec Court of Appeal misread MILBERG and jumped to the wrong
conclusion. Judge Tache reserved his decision.
The Crown rushed out of the courtroom and I followed. A media
scrum stuck all sorts of mikes in my face as I shouted "You said you
wouldn't make the same mistakes as in Ontario but you started out with
a beauty of your own. Go back to school."
910725 Citizen: CASINO OWNER FIGHTS CHARGES
It cites Pierre saying that we object that "the charges don't say
how he broke the law."
Le Droit: A REAL JUDICIAL BOONDOGGLE
It mentions the fight over lack of address, that Swanston claimed
the lack of information was not cause to quash and that the Crown had
no intention of giving any other particular details.
I did not want to win on the grounds the Crown failed to include
the address. I wanted to win on the grounds the Crown failed to state
a violation of the Criminal Code. Otherwise, all the pain and
embarrassment were for naught. I wanted to win on the merits. Just
like Judo, I wanted my lawyer to give a little but end up throwing the
Crown really hard. And I wanted everybody to know that he threw him,
not that he tripped. So, just as a chess expert might sometimes let a
truly inferior opponent take back a truly inferior move, I persuaded
my attorney to withdraw his objection to the Crown adding the address
because an address didn't give him much more to work with anyway.
TACHE DECISION
On Aug. 20, Judge Tache ruled that despite BINGO, he agreed with
BIBEMATIC that simply stating the words used in the statute, without
mentioning the game in question or which definitions were being used,
provided sufficient information for me to identify the transaction
referred to. He put off my plea until the 23rd.
There had been a mix-up over the time of the delivery of the
decision. Pierre had told me 9:30a.m. and I was in the cafeteria
downstairs at the courthouse at 9:15. When I got to the courtroom,
Pierre told me that the hearing had been slated for 9:00 and though
Pierre had told Judge Tache that I would be there at 9:30 due to an
error in communications, he would not wait and read his decision
without me. Finally he put out a bench warrant on me before leaving.
Pierre had to go before the next judge and get it lifted 15 minutes
later.
910821 Le Droit: INDICTMENT UPHELD AGAINST JOHN TURMEL
It mentioned I called it Alice in Wonderland justice. It also
mentioned the judicial comedy of the bench warrant and that the
confusion over the time was due to the judge changing the hearing time
at my last appearance.
Citizen: NEPEAN POLICE INVESTIGATE CASINO OPERATED IN HOME
It says the Nepean Police are investigating and alderman Rick
Chiarelli said "If it is legal, it is only because he found a loophole
in the law. The intent of the law is it should be illegal." It
mentioned "Swanston said there is evidence against Turmel. But he
refused to discuss his case before it comes to trial."
SPECIAL PLEA "AUTREFOIS ACQUIT"
On Friday, Aug. 23, Pierre pulled out and I took over my own
defence. There was a slew of different moves I was going to use to
harass the Crown and it was not financially feasible for it to be done
by a lawyer. I had won my own defence in 1989 and I thought I could
win again. Poor Swanston. He thought he was going to have a nice
gentlemanly trial with Pierre in French and now he had a dog-fight
with me in English.
The Criminal Code provides a little-known and little-used special
plea against the abuse being re-tried on the same set of conditions
called "autrefois acquit" meaning "formerly acquitted"
When Judge Nicole Gibeault asked how I wished to plead, I stated
"Autrefois acquit" and cited Section 607(3) which states "The plea of
"autrefois acquit" shall be disposed of by the judge before the
accused is called on to plead further.
Swanston objected stating it was a motion I should make at my
trial. I pointed out Section 607(4) which said "When the plea is
disposed of against the accused, he may plead guilty or not guilty."
The judge, being a brand new judge, checked the Code, saw that I had
her pinned, and agreed to hear the plea.
Section 607(5) states "Where an accused pleads "autrefois
acquit," it is sufficient if he a) states that he has been lawfully
acquitted and b) indicates the time and place of the acquittal." I
stated I had been lawfully acquitted, indicated the time and place of
acquittal and gave her the Lennox's decision fulfilling those
requirements.
The Crown produced some jurisprudence showing that "autrefois
acquit" only applied to cases arising out of the same time and place.
I guess they didn't envision any cases where time and place were not
relevant.
I countered "autrefois acquit" was the only available remedy to
prevent an abuse of the judicial process. I used the analogy of
Wayne's Wonderful Weiner Wagon, doing a good business on a street
corner.
One day, the mayor gets indigestion after eating one of Wayne's
Wonderful Weiners and has him charged with having more than 50% fat in
his weiners. His wagon is impounded until his trial.
Six months later at his trial, he produces his recipe registered
with Consumer and Corporate Affairs and an affidavit from his butcher
who prepares his Wonderful Weiners attesting that there's only 48%
fat. Wayne is acquitted and gets his wagon back but he's almost
ruined.
He finds another street corner and starts up again. One day, the
mayor gets indigestion again and has him again charged with having
more than 50% fat in his weiners. Again his wagon is impounded.
If he waited six months for his trial when he would once again
produce a defence of the recipe and the butcher's affidavit, he would
surely plead the special plea of "res judicata" which means the
"matter already adjudged." But there had to be an avenue in Canadian
legal jurisprudence for Wayne to avoid a ruinous second wait for trial
and since "Res judicata" was not a special plea and could not be
raised before trial, "autrefois acquit" was the only way. In
actuality, it was the recipe which was acquitted and not Wayne. And a
recipe is independent of time and place unlike Wayne.
GIBEAULT DECISION
Despite my argument that time and place were of no substance in
whether an ongoing game is a gaming house or not and pointing out that
the address was so unimportant that the Crown had even forgotten to
include it. Judge Gibeault ruled that "autrefois acquit" applied only
to offences stemming the same time and place.
STANDING MUTE TO PLEA
Judge Gibeault now asked me to plead and I tried another rarely-
used move. In the WILSON case, it was found that when he stood mute to
the charge, he was deemed to have not yet pleaded for the purposes of
making pre-plea motions. So, as I had several more pre-plea moves to
undertake, I told her "I stand mute pursuant to 606(2)." The section
states that when an accused stands mute, it's up to the judge to enter
a plea. Judge Gibeault checked and then told the clerk to enter me as
not guilty. I was now free to keep making pre-plea motions.
Then we had to pick a date for the trial. Swanston had agreed
with Pierre to an early date in October. When she asked for a date, I
said that I was happy with the Oct. 22 they had already decided upon.
Swanston said that an early date was fine but there was the
possibility he might be in an important murder case and it might have
to be put off. I still insisted on that date. Though it was in the
Crown's interest to use delay to keep me out of action for as long as
possible, by the time I was through with all my motions, I figured
he'd be happy to get it over early.
At one point, he complained that I was arrogant. Later, I
accosted him and said "If I was saying I was good, that might be
arrogant. But I was saying you're bad. That's not arrogant."
On CBOT-TV that night, I was quoted saying "They have nothing
against the Poker so the big game's on for tonight."
910824 Le Droit: JOHN TURMEL GOES ON ATTACK; ACCUSED OF KEEPING
AN ILLEGAL GAMING HOUSE IN HULL
Le Droit's Francois Gagnon did a great big story of my going on
attack with a bunch of unusual moves. Le Droit mentioned there were
three other Crowns in on the case and that once acquitted, I'd be
going after all those responsible.
The Citizen reporter who had covered it and also found it very
interesting told me they had decided to stop coverage until I came to
trial because I had lost and it could go on forever. Just when I took
over. They like to show me on defence, not offence.
I had started threatening to go after the people who had
perverted the use of the Criminal Code. If I won my case, I was going
to walk over to the Justice of the Peace and lay an Information
against those who prosecuted innocent people under Public Mischief and
Conspiracy sections of the Criminal Code.
CONSPIRACY: Section 465(1)(b)
Every one who conspires with anyone to prosecute a person for an
alleged offence, knowing that he did not commit that offence, is
guilty of an indictable offence and liable to less than five years.
PUBLIC MISCHIEF: Section 140
(1) Every one commits public mischief who, with intent to
mislead, causes a peace officer to enter on or continue an
investigation by
b) doing anything to cause some other person to be suspected of
having committed an offence that the other person has not committed;
c) reporting that an offence has been committed when it has not
been committed.
MOTION TO QUASH OR SEVER BOOKMAKING CHARGE
On Sept. 6 I made my next motion before Judge Gibeault to quash
the bookmaking "betting house" count on the grounds there was no
evidence of bookmaking and only evidence of gaming with cards and
therefore, the indictment had a defect on the face apparent thereof.
When Judge Gibeault asked if she even had jurisdiction, Swanston
said I could do the motion only with leave and otherwise, I had no
right to make my motion until my trial. I pointed out I didn't need
leave because of the WILSON case. Swanston argued that if WILSON
applied, all defence lawyers would be using it. I answered it wasn't
my problem if they weren't using all their options.
She reserved her judgment on whether she had jurisdiction but
agreed to hear arguments though warning me it might be wasted time if
she eventually ruled she didn't have jurisdiction. Yet, since she
could grant leave and have jurisdiction, how could she not have
jurisdiction with a person who doesn't need leave? I cited the PILON
decision by the Court of Sessions of the Peace, Montreal, 1920:
"If these parties are to play an active role in the event; that
is to say, if one of them who shall be the author of the event is to
be the winner, there is gaming; on the contrary, if the event be
independent of the will and actions of the parties, there is a bet."
I stressed that if the betting is on an event like a horse race
or a prize fight, that was betting. I submitted that since all the
wagering was on the turn of a card, there was only gaming going on. At
all times, how the players played their hands made them the authors of
the event to which one was a winner and therefore gaming took place.
I further submitted that the betting house charge was thrown in
solely to disguise the weakness of the gaming house charge and
confound the issue. Blackjack and Poker have always been successfully
prosecuted under the gaming house laws and never successfully
prosecuted under the betting house laws.
I further asked that the counts be severed on the grounds that
the bookmaking charge, being based on a different definition and
without betting slips, taped bets, odds lines, could not stand alone.
Judge Gibeault accepted jurisdiction but was not convinced the
ends of justice would be served by quashing or severing the bookmaking
betting house charge.
910907 Le Droit: JOHN TURMEL FAILS A THIRD TIME On Sept. 12, CJOH
had a story of with Hull Sgt. Yves Martel excusing the lack of action
on a murder case due to being swamped with the casino closure. A man
reproached him for using manpower to close a casino when killers are
running loose and wanted to know what they were doing about the
murder.
FIRST MOTION FOR AMENDMENTS OR PARTICULARS
On Friday Sept. 13, I had written a motion for an amendment to
the counts to include the name of the game and the subsections
creating the offence or for particulars of the definition subsections.
The motion came before before Judge Somers and was put off until the
afternoon. Knowing it was my last provincial motion, I still asked
Swanston "In the future, should I book these for 2p.m.?" That set him
off as he told me I had all the time I wanted to make motions at my
trial. I shrugged and he stormed off.
The Crown argued that I had only given him 2 days notice when I
should have given him 2 clear days notice which is actually 3 days
notice. I argued that he was up on the matter and there would be no
prejudice to the Crown's case if it was dealt with. Judge Jerome
dismissed it on that technicality.
CBOT was there and reported that Swanston was exasperated by all
the motions that I was making. They showed him huffing off down the
hall.
911014 Le Droit: TURMEL MOTION REJECTED BY THE COURT; FOURTH TRY
TO AMEND THE CHARGES AGAINST HIM
SECOND MOTION FOR AMENDMENTS/PARTICULARS
I tried again with the same motion slated for Thurs., Sept. 19 at
9:30a.m. but Swanston was busy in another courtroom on an important
case. Judge Tache was presiding again. The case was postponed until
Swanston became available. At 12:20, he became available and went to
his office to get the file. I alerted the Crown in our courtroom that
Swanston had gone to get the file and was on his way. Just then Judge
Tache asked if there were any more cases. The Crown mentioned that
Swanston would be there in minutes but Judge Tache decided he wasn't
going to wait and recessed until 2p.m. Swanston was again occupied in
the other court for the rest of the afternoon and at 4:10p.m., Judge
Tache put off my motion until 9:30a.m. the next day. I approached and
mentioned that I couldn't make it for that time and Tache said it was
too bad. I mentioned to the Crown that I would be able to make it for
the 2p.m. session. When I arrived at 2p.m. the next day, I found out
that Judge Tache had called my case and despite being advised by the
Crown that I would be present at 2p.m., he dismissed it anyway.
THIRD MOTION FOR AMENDMENTS/PARTICULARS
Again I filed the same motion for amendments or particulars for
Sept. 26. Judge Allard was presiding. I argued that there were five
defences possible for me to counter Section 197(1) of keeping a place:
a) kept for gain on the sale of drinks and food to which people
resort for the purpose of playing games; or
b) kept for the purposes of playing games where
1) I excluded someone from being the banker at Blackjack;
2) I took a rake-off at the Poker;
3) I charged a fee to play either Poker or Blackjack;
4) I had an unfair advantage others did not in either Poker or
Blackjack.
I pointed out how at my 1989 trial, I had asked Judge Lennox for
particulars of which subsection the Crown was going to prove. He
simply told the Crown to answer and she chose (b)(1) and (b)(4).
The Crown argued that the court was bound by BIBEMATIC and that
simply stating the count in the words of the offence identified with
reasonable precision the act charged in order for me to prepare my
defence accordingly.
Without giving me a chance to rebut BIBEMATIC, Judge Allard
agreed with BIBEMATIC and dismissed the motions for amendments to the
counts and for particulars.
It was not going to be as easy for me to get the particular
subsections as it was in Ontario where I simply asked for them, the
judge granted it and the Crown stated it. Here I was asking for the
same thing in order to focus my defence, something almost summarily
granted in Ontario, and the judge said no. It didn't look good.
MEDIA DIES OFF
At this point, there was no more printed press. I did fax them
about every move but they must have realized it was going to be a
weekly thing. CKCH and CJRC would usually call after a motion and tape
a comment on what happened. They certainly gave the best coverage.
On Oct. 16, because they'd received lots of calls about my case,
CKCH decided to invite me to a talk show. But I was barred from Hull.
They contacted the Crown for some sort of special dispensation but
couldn't get it. So they had Bell run a special line into the casino
room in my basement. Bell had to have the Nepean police stop all the
traffic along Baseline Rd. so they could string across their wire.
It was an interesting show "directly from Casino Turmel in
Nepean." A couple of callers were negative but eventually people
warmed up and it ended up 17 to 3 for casinos with most for my type of
small personal casinos. I'd explained how large casinos are impersonal
and don't care if people get hurt while small personal casinos would
have a greater stake in making sure regulars don't get hurt.
SUPERIOR COURT MOTION FOR PARTICULARS
My next step was to go up to the Superior Court to appeal these
decisions in some way. The problem is that the usual way to object to
the violation of a right is to do it in the appeal after conviction. I
know the average criminal is happy to be released because his rights
have been violated but that wouldn't have proven my point about my
game being legal.
The system was violating my right to prepare a defence by
refusing to focus in on which definitions they were attacking me with.
So I decided to go for an Order of Certiorari by claiming that there
has been a breach of the rules of natural justice to get a higher
court to look into whether there was something fishy going on.
On Oct. 3, I appeared before Superior Court Justice Orville
Frenette. It was on short notice, half a day's notice, and Swanston
objected. I pointed out I only had 3 weeks until my trial and I still
might have to appeal. Justice Frenette agreed to hear the motion in
the afternoon. Swanston was saddened.
I pointed out that this was a fascinating case due to the
contradiction between BINGO and BIBEMATIC. Frenette let me give him
the whole story for particulars. At one point, Swanston said "Even if
there are some errors in BIBEMATIC..." Justice Frenette said he'd put
it very delicately if he ruled my way. Pierre had also told me that
Judge Allard had been slated to hear my case. I explained my worry
that since Judge Allard had found no information sufficient for me to
defend against, he might find no evidence sufficient for conviction. I
concluded that I didn't know how he should fix things but that if he
found something wrong, it was his problem. He reserved his decision.
As we were leaving the courtroom, Swanston told me that he might
not be able to make it for the trial date on Oct. 22. I said that
might be good as I needed more time to go to the Quebec Court of
Appeal. "I've got lots of stuff left to do."
FRENETTE DECISION
In his decision, Justice Frenette wrote:
"When an analysis is made of the Applicant's motion, it can be
summarized as a complaint against Judge Allard's ruling because he
refused his request for particulars from the Crown in order to prepare
his defence. There is no doubt that in both the Wis decision and
Service Central de Reservoirs v. Attorney General of Quebec, that IN
OFFENCES OF SUCH A GENERAL NATURE, IT IS FAIR TO OBLIGE THE CROWN TO
GIVE PARTICULARS to the accused, in order to face the charge against
him.
In fact, the only appellate decision specifically concerning a
gaming offence was the one of R. v. Bingo. The Manitoba Court of
Appeal held therein that a charge MERELY USING THE WORDS OF THE
OFFENCE IS NOT MERELY DEFICIENT BUT IS BAD IN LAW, where the offence
includes a number of separate and distinct acts.
"Such a charge does not lift the description of the offence from
the general to the particular. Particulars cannot cure such a defect
of substance."
The Manitoba Court of Appeal relied upon the decision of the
Supreme Court of Canada in R. v. Wis stating that the circumstances in
both cases were identical.
The charge did not meet the mandatory requirements and was
therefore ab initio vitiated. Article 197 describes "common gaming"
house" and states that such an offence can be committed in five ways.
It therefore follows that PARTICULARS SHOULD HAVE BEEN ORDERED IN
THE PRESENT CASE.
The only real basis that the applicant advanced to attack Judge
Allard's decision refusing particulars of the charge was denial of the
rules of natural or fundamental justice.
However, none of the facts that he advanced to justify his motion
fall within any of the exceptional conditions enumerated previously
which could permit this court to intervene.
I therefore must conclude that I cannot intervene, even though I
PERSONALLY BELIEVE PARTICULARS SHOULD HAVE BEEN GRANTED as requested
in this case.
WHEREFORE THIS COURT DISMISSES the motion for Writ of Certiorari
WITHOUT COST."
Even though Judge Frenette couldn't help, I am thankful for his
giving the Crown a solid hint they were violating my right to
information.
When Pierre heard what Justice Frenette had written, he said it
would be grounds for appeal that I hadn't been given enough
information to properly defend myself. He suggested going for Charter
relief now that there was such a good case for a Charter violation.
CASINO ROBBERY
We were playing poker at my Nepean gaming room when four mn burst
in, some with guns. Two came upstairs to the Poker room and guarded us
while the two others went downstairs and took the cash box from the
casino cage. Then they were gone. They must have been surprised at the
small haul. Since we use mostly cheques and virtually no cash, they
got $15,000 in cheques and only $700 in cash. Nothing's safer than not
having cash on the premises! We called the police who came to take our
statements and start an investigation. I faxed out the facts to the
media but only the Sun reported the casino robbery.
911011 Sun: HUNT'S ON FOR 4 WEST-END BANDITS
It said "four armed bandits burst into a home in the Baseline-
Woodroffe area after a woman answered a knock at her door. One of the
gunmen pointed a handgun at the woman's head and ordered her to the
ground while the other men ran upstairs. Several other people in the
house were also ordered to the ground.
I hope ordinary Nepean home-owners don't start worrying about it
happening to them. My casino room was a much more lucrative target.
Isn't it amazing that while the other print media didn't report the
casino robbery, the Sun report omitted that it was the Turmel Casino
that had been robbed leaving the impression it was just another random
robbery? The Citizen had the excuse that they had decided not to cover
my case anymore.
SUPERIOR COURT AGAINST FIRST THREE DECISIONS
Before going after my Charter rights, I wanted to get the first
three motions appealed through the Superior Court so I'd be able to
take them all to the Court of Appeal. So I wrote three separate
motions for Certiorari and filed them. On Oct. 15, Justice Frenette
agreed to hear them.
The first one was against Tache's refusal to quash the charges. I
argued he had erred in denying the needed specificity to deal with the
multi-faceted nature of the gaming house count and why BINGO was right
and BIBEMATIC was wrong.
At one point, I castigated the Crown for not providing the
particulars after Judge Frenette had taken the time to indicate in his
first decision that they should have been granted. I pointed out there
had been no indication that the Crown would be providing the requisite
information despite his startling recommendation that it should be
done. He noted that the Crown still had time to correct the problem.
The second was against Judge Gibeault's refusal to allow
"autrefois acquit." I explained Wayne's Weiners to show the injustice
of insisting on identical time and place when time and place were not
relevant.
The third was against Judge Gibeault's refusal to quash the
bookmaking "betting house" count on the grounds there was no evidence
of bookmaking going on and only evidence of gaming with cards going
on. I cited jurisprudence which said:
"It cannot be said the justice acted withut jurisdiction unless
he commits the accused "without any evidence at all, in the sense of
an entire absence of proper material as a basis for the formation of a
judicial opinion that the evidence was sufficient to put the accused
on trial."
Once again, Justice Frenette ruled he did not have jurisdiction
and had to dismiss all three without costs.
CHARTER MOTION
Now was the time for the Charter motion. With only days left
before the trial, it was evident that the Crown was intent on not
giving me my Charter-guaranteed information and so it was up to a
court of competent jurisdiction to protect my rights.
On Monday, Oct. 21, the day before my trial, I presented a motion
before Superior Court Justice Plouffe on short notice for an Order
under Section 24(1) of the Charter for remedy as the court considers
appropriate for violations of the following Defendant's Rights and
Freedoms: Sections 11(h), 2(c), 2(d), 6(b), 7, 8, 9, 11(a).
Part I: Section 11(h)
Any person charged with an offence has the right, if finally
acquitted of the offence, not to be tried for it again.
Part II: Other Sections
I submitted that violation of my right to not be tried twice for
the same offence had ipso facto violated several other of my rights
and freedoms:
Section 2(c): freedom of peaceful assembly;
Section 2(d): freedom of association;
Section 6(b): right to pursue the gaining of a livelihood in any
province;
Section 7: right to security of person and the right not to be
deprived thereof except in accordance with the principles of
fundamental justice;
Section 8: right to be secure against unreasonable search or
seizure.
Section 9: right not be arbitrarily detained or imprisoned.
Part III: Section 11(a)
Any person charged with an offence has the right to be informed
without unreasonable delay of the specific offence.
Judge Plouffe asked for submissions on his jurisdiction to hear
the motion. Swanston said I needed to show exceptional circumstances.
I pointed out that the Ontario judgments and Justice Frenette's
judgment were exceptional circumstances. Swanston said I was wasting
the court's time. I pointed out it was his refusal to specify the
charges which caused all the wasted time. The judge accepted
jurisdiction, heard our arguments and dismissed the motion promising a
written decision.
I argued that if I were to be tried without knowing which of the
five subsections created the gaming house offence or the name of the
game alleged to have contravened that subsection, it is evident that
my right "to be informed without unreasonable delay of the specific
offence" pursuant to Section 11(a) of the Charter will have been
violated. I didn't want to end up complaining they had violated my
rights, I wanted them to not violate my rights so I could defend
myself and it had to be remedied before the trial to avoid the
violation.
I submitted that the unreasonable delay could be acceptably
remedied in the following ways:
a) order the particulars;
b) amend the indictment;
c) quash and re-file the indictment.
PLOUFFE DECISION
Justice Plouffe, dismissing the motion without costs, ruled that
as a general rule the trial court should be preferred with regard to
the presentation of Charter motions and in this case, it was more
suited to the trial judge than him. I disagree since once it got to
the trial judge, there'd be no way to correct the unreasonable delay.
TRIAL DAY ONE
On Oct. 22, the trial took place. They sent in Associate Chief
Justice Jean Pierre Bonin from Montreal to hear it instead of Judge
Allard. Maybe my complaint to Frenette paid off. The first thing I
noticed was that Swanston had called Andy Durno of the OPP as his
expert witness. There's no way Swanston could have known about Durno
without having read the transcript of my 1989 trial. And I had only
ordered the transcript within the last month for use in my defence.
The Ontario court reporter told me that the Quebec Crown had ordered a
copy just recently. He was letting his original expert advisor hide
out in Montreal and letting Durno take the heat.
I started by moving for the particulars. Remember how easy it was
in Ontario to have the Crown focused in on the subsections they were
relying on. It wasn't easy here. Even though I pointed out Justice
Frenette had indicated that I should have been granted particulars,
Judge Bonin refused. The first bad vibe. When the judge wants to keep
the charges as vague as possible, it couldn't be good for the defence.
The first Crown witness was the undercover Hull police officer
who testified to everything I had told the police in my letter. When
he had arrived, he had been made to try the bank, had been told that
he could be the bank anytime against me or one of my agents, had
signed a statement to that effect and had seen others exercise their
option of taking the bank. He testified it was the only casino he had
ever been in where he had been able to take the bank but that he felt
that because he couldn't play with the other players and only with me,
that wasn't fair and therefore he thought it was a gaming house.
As it was evident he had never learned statistics or Mutual
Exclusivity, I caught him in the usual contradictory trap. Once he had
agreed he was getting a fair game with me alone, I forced him to agree
that he was getting the same fair game whether I was playing with
others or not and whether he could play with them or not. And I wasn't
stopping him from inviting any others he wanted to play with to go to
his place.
I further asked him if he had been charged for refreshments, if
he had been excluded from being the bank, if there had been a rake-off
at poker, if there had been a fee to play or if I had any playing
options he didn't have. To all questions he answered no. None of the
only five definitions applied!
The next witnesses were a couple of my dealers. They testified
that they worked for tips and as my agents. I asked them if they saw
anything which fit any of the five definitions to which they
repeatedly answered no.
The next witness was Sgt. Baizana. He answered no to all the
definitions too. When I asked him what had prompted the police to
change their mind about criminal violations considering their previous
statements saying there was nothing they could do, he said he didn't
know. He said he was new on the case and hadn't spoken to any of the
other police who had previously indicated to the media that there were
no laws being broken. Yet he had the same documentation I had sent. It
seems they got rid of Poirier and called in someone of a different
mind. I asked him why he got this hot potato and tried to find out
what had changed their minds. I asked him why he had even bothered to
try using the municipal code if he had the Criminal Code all along? I
didn't get an answer.
I did get out of him the name of their so-called expert who had
advised that I be charged but who was staying in Montreal. I
complained to the judge about not being able to face my initial
accuser. Swanston then stated that he had been responsible for
deciding it was a gaming house. And he's not even a mathematician.
Their next witness was from the RCMP who had studied my
accounting records. He had produced the Income statement and other
information which showed I had won $64,000 playing Blackjack and
$20,000 playing Poker. I asked him if the records had been well kept.
He indicated they had been. I'm glad it came out there was nothing
hidden or fraudulent or tax-evasive that went on.
The next witness was Sgt. Durno. I went over same series of
questions as in Ontario and he didn't disappoint me. He'd learned his
lesson on Mutual Exclusivity and came to the same logical conclusion.
I doubt Swanston consulted with Durno because he would have probably
been able to explain Mutual Exclusivity and advise him against the
charge.
The next witness was Sgt. Villeneuve, of the Montreal Morality
Squad. He had been the one Swanston originally referred to as his
"expert" who had previously made the supposedly "expert" statement
that my game was a gaming house. Yet, when I started leading him into
the Mutual Exclusivity trap, Swanston objected that his own former
"expert" was not qualified to give his opinion on mathematical
questions. And this is the guy whose advice he had been taking all
along? He too fell into the Mutual Exclusivity trap. We adjourned
until the next day.
911023 Citizen: SHORT-LIVED CASINO TURNED TIDY PROFIT; TURMEL
POCKETED $64,000 BEFORE POLICE RAID, COURT HEARS
It stressed the money made and pointed out that "Swanston offered
no proof that the poker games were illegal. All the testimony dealt
with Blackjack." It quoted the police officer saying "to make the odds
even, players should be allowed to be dealer to a table full of
customers, not just staff members." It mentions how I pointed out I
was convicted in 1977 because the judge had ruled the poorer gamblers
couldn't afford to bank the whole table and and pointed out it was why
everyone played with me at stakes they could afford to bank but it
failed to mention how he fell into the Mutual Exclusivity trap, my
strong point.
Le Droit: PROFITS OF $64,000 IN NINE WEEKS; START OF THE TRIAL OF
JOHN TURMEL ACCUSED OF KEEPING A GAMING HOUSE
It stressed the same things but also that everyone had been
forced to be the banker.
TRIAL DAY TWO
The next morning, the Crown rested his case. At that point, I
made a motion to dismiss the bookmaking betting house charge. I
pointed out that there was no evidence of bookmaking at all. No
betting slips, no taped phone
bets, no odds lines, nothing. Judge Bonin dismissed the motion
and I now had to put on a defence against no evidence of bookmaking! I
don't know what evidence he thought he saw but he didn't let me know.
When he mentioned that he could only convict me on one or the other,
gaming or bookmaking, I realized he was just keeping all options open,
no matter how ludicrous.
Sensing something wrong, I once again moved for particulars. I
pointed out that I had asked every witness if there had been a rake-
off in defence against no evidence of rake-off. I'd asked every
witness if there had been a fee in defence against no evidence of fee.
I'd asked every witness about whether there were any sales in defence
against no evidence of sales. I'd wasted a major part of the last day
in discussion of points that are not relevant and asked the judge if
he'd like to stop having me waste more of our time by repeatedly
having to ask about all five subsections when the granting of
particulars would have allowed us to focus on those the Crown claims
are backed up by the evidence. Judge Bonin again refused to specify
the charges and though he might have been insulted at my noting how he
had made me waste our time, I thought it was imperative to stress that
point. Why would an experienced trial judge want to spend so much time
talking about things like rake-offs which did not happen? Why the
absolute refusal to focus in on which of the five definitions I should
defend against?
My first witness was Jack Edmondson, a top North American
Blackjack expert and an Ottawa computer programmer. After detailing
his credentials he explained that Blackjack was a game of skill and my
rules were some of the most generous in the world. Swanston's cross-
examination served to show that he was right when he said he didn't
know very much about gambling. He certainly didn't have the
credentials to have made the decision to raid me.
Then I called Lt. Poirier. I asked him about the attitude of the
police up until Sgt. Baizana had taken over the case and started the
municipal action. He was non-committal. I asked if he remembered our
conversation where he had told me to "go right ahead." He didn't
remember. I later was allowed to play the tape. I brought it up to a
microphone and it came across loud and clear: "Go right ahead."
Then I called Mr. Canuel from the city licence office and got him
to detail the status of my application for a business licence. It
hadn't yet been fully processed.
Finally, I put on Dr. Walter Schneider, professor of Mathematics
at Carleton University who has been an expert witness on gambling
several times before. He taught me Engineering Mathematics and the
Mathematics of Gambling. I got him to explain Mutual Exclusivity for
the court. He pointed out that if we had a bet on a fight, it didn't
matter what else I did, nothing could affect that bet. Seems simple
enough.
Then the Crown tried to get him to admit that because others
could only play with me and I played with all of them, there was a
difference. Dr. Schneider pointed out that though I might be playing
for more money than the others, that didn't mean I had a bigger edge.
It just meant I took bigger gambles.
I closed my case and now came arguments. Like the special plea of
"autrefois acquit," I raised the special defence of "res judicata"
which means the matter has already been resolved between the same two
parties. I handed in the decisions of Judge Fontana and Lennox.
Then I handed in all the older case law. I pointed out that it
was this case law that had convinced them to acquit me.
I repeated the statement from the Roberts decision several times,
even backwards. "Notwithstanding a prima facia case has been shown,"
tables, cards, chips, croupiers, tellers, doormen, "no conviction can
be made in the absence of proof that the bank was kept exclusively of
the others."
Several of others I repeated several times to make sure it was
getting through. I again pointed out how Fontana and Lennox had relied
on these and had noted that it was not illegal to win money gambling
skillfully. The judge didn't like my constant referral to the Ontario
judges as if he was qualified to decide for himself. Res judicata may
not have been one of his favorite defences.
Then I pleaded that I could not have had mens rea, criminal
intent, since the police had okayed what I was doing. How could I have
had criminal intent when I truly believed Lt. Poirier was right?
When judge Bonin settled in on the fact that I seem to have made
a gain, I explained to him as best I could how subsection (a) referred
to gains not referred to in the (b) subsections. I challenged the
Crown to produce even one case where subsection (a) was ever used for
anything other than non-gambling gains like sales. Of course, he had
none.
On that note, Judge Bonin said he'd recess for 15 minutes to make
his decision. There's no way he'd have had the time to read all the
case law I had given him so I hoped it was a good sign that I'd won
the case easily. No such luck.
BONIN DECISION ON GAMING HOUSE
He came back 15 minutes later and found me guilty. He simply
ruled that since I was paying rent, I expected to make a gain against
subsection (a) but he did not differentiate between gain from gambling
or gain from non-gambling. I would always pay rent expense if I could
win another $20,000 playing Poker. Though I had repeatedly pointed out
that there were no cases of subsection (a) ever being used against
gambling gains since the (b) subsections were there for that, the fact
I made money was all that mattered to him, not how I made the money.
He stated I had made money by gambling which was illegal.
If any gain is an illegal gain, why would the legislators have
even put in the (b) subsections relating to illegal gambling gains?
Either they were redundant in specifying which gambling gains were
illegal if all gains were illegal or Judge Bonin's interpretation goes
against historical jurisprudence. The mere existence of the (b)
subsections implies that the (a) subsection deals with non-gambling
gains and Judge Fontana was right when he said that it is not illegal
to win money skillfully.
Though everybody said they gotten a fair game, the Quebec judge
found that I still ended up with an unfair gain. As I had told Justice
Lennox in my previous trial, a wrong decision would make that judge
the laughingstock of every statistics faculty in the country. With the
direct contradiction between Judge Fontana and Judge Bonin, we'll have
to leave it up to the mathematicians to decide which of the two judges
is the statistical laughingstock.
Judge Bonin is the first judge to interpret the Code in a way
where the (a) subsection on sales is applied to skillful gains in
gambling making me probably the first Canadian to suffer under the
Bonin misinterpretation. In all my previous gaming house charges, I
was never charged with subsection (a), let alone convicted. This was
quite a precedent.
Judge Bonin's ruling means that if a person has a no-rake poker
game at his home and if he's a consistent winner expecting to make a
winning gain, that makes it a gaming house. But if a consistent loser
hosts the game, then he doesn't expect to gain and that's not a gaming
house.
Judge Bonin's assertion that any gain makes my game illegal flies
in the face of wiser judges who have always ruled that skillful gain
is legal and does not constitute the illegal gain as contemplated in
the (a) subsection regarding non-gambling gains.
BONIN DECISION ON BETTING HOUSE
Judge Bonin found me not guilty of the bookmaking betting house
charge. Not because there was no evidence of bookmaking. That would
have been an admission that he had been wrong all along in not
dismissing it when I pointed out there was no evidence. Instead he
acquitted me of bookmaking because he couldn't convict me on both! I
believe him. If he hadn't been able to successfully misinterpret the
gaming house section and make me the first Canadian convicted of gain
from skill at cards, I'm sure he would have been able to successfully
misinterpreted the betting house section and make me the first
Canadian ever convicted of bookmaking with cards!
To really appreciate the flaw in his reasoning, imagine that
Judge Gibeault had granted my motion to sever the two counts and my
bookmaking trial had taken place before my gaming house trial.
Swanston would have closed his case without presenting any evidence of
bookmaking. I would have moved to dismiss the charge for lack of
evidence. The judge would have dismissed the motion and made me
present my defence to no evidence and then convicted me because there
hadn't been a gaming house conviction. All without any evidence of
bookmaking. And I thought the Pilon decision explained the difference
between gaming and betting so well. It's almost funny if it weren't so
sad.
As to the sentencing, the Crown wanted jail. I pointed out that
there had been no criminal intent and the Crown had effectively chased
me from Quebec anyway. Judge Bonin, pointing out I had already done
two weeks once and three weeks another time and following the
principle of increasing sentences, condemned me to four ....... months
in jail and two years probation. I asked if it could be put off while
I filed an appeal. He said no and that was it. Case closed. I guess
the fact the police had okayed my operation didn't factor in.
911024 Citizen: TURMEL GETS JAIL TERM
It mentioned my playing of the tape of Poirier telling me to "go
right ahead." It quoted Judge Bonin saying "the sole purpose of the
casino was to make money by gambling, which is illegal." It quoted me
saying "It is not a crime to win money gambling." And therein lies the
crux of the whole case. Is making money by gambling illegal or not?
Sun: REGION CANDIDATE GUILTY; TURMEL GETS 4 MONTHS FOR RUNNING
ILLEGAL GAMING HOUSE
Le Droit: TURMEL SENTENCED TO FOUR MONTHS DETENTION; GUILTY OF
KEEPING A GAMING HOUSE
It mentioned how statistical laws had been violated and said I
would appeal.
OFF TO JAIL
I was cuffed and taken to the Hull jail and put through the
process. Though the guard at the jail threateningly put on his plastic
glove as he escorted me into the back room to change, he didn't check
me. I guess he figured there wasn't much chance of my hiding a deck of
cards up there.
Each prisoner had his own cell. After a week, I was transferred
to a wing for those who had already been sentenced. Cells were opened
at 7a.m. and closed at 10p.m. Meals were were served at 7:30, 11:30,
and 4:30. The food was good and substantial. We could sleep, read,
watch TV, play games. Once a day, we could either go outside for an
hour or go to the weights and billiards room. They had a small library
with plenty of interesting books. Pauline could visit for half an hour
three times a week. She missed once representing me at a political
meeting and another time when she was guest of honor at the 60th
Anniversary Ottawa Neighbourhood Services banquet.
POLITICAL PROBLEMS
At the time, I was running for Ottawa-Carleton Regional Chairman.
Being in jail was not conducive to good electioneering. There were
still several all candidates meetings coming up before polling day.
Fortunately, I was running on the platform of a computer program,
the Local Employment Trading System (LETS) barter system that uses
Greendollars and is spreading all over the world. The software can be
used on any database, municipal, provincial, federal, global. I was
the only candidate with my answer in my hand on a disk. But what is
neatest of all is that a LETS operates like a casino bank issuing
Greendollar chips in exchange for collateral. If the casino chips we
use to liquefy our assets make our gambling exchanges possible, they
could also make our economic exchanges possible and the growth of
barter systems proves that. My goal is to get government to join and
open a LETS account and save tax-payers the interest.
I'd written a poem about how the system worked which the Sun's
reporter Susan Sherring called my "ditty." A few excerpts:
When you were little, did you ever dream of printing cash?
Of filling up your wallet with some money in a flash?
Creating money accurately means HAVING THE PLATES,
The stamping of some paper into notes best demonstrates;
Or stamping metal into coins; or blips computerized,
Into your bank account deposits, checks now authorized.
But others would object if you could print it up to spend,
But what if government would let you print it up to lend?
If you could print and lend a thousand out at ten percent,
You'd make a hundred interest on printing that you lent.
But if you could print up and lend a million out you'd get,
An extra hundred thousand dollars for your fee on debt!
If government stops using its own plates and comes to you,
A billion printed nets a hundred million revenue!!
With everybody being taxed to pay you interest,
Of all the scams in history, HAVING THE PLATES is best!!!
Though governments in days of old mandated Treasury,
To operate the money plates and pay no usury,
Most governments today to banking industry have lost,
Control of money plates so interest is now a cost.
In nineteen ninety, Canada did budget the request,
For forty thousand million dollars paid in interest.
We're taxed over a hundred dollars each per month to pay,
For interest to holders of our plates they gave away!!!
We, Abolitionists, would get the plates back from the banks,
Have Treasury create the money only for our thanks.
The interest we save could be split up, I recommend,
For each to get a monthly hundred dollar dividend.
As if you owned a share of the incorporated state,
An income guaranteed for life, no question, no debate.
Would you agree control of money plates by banks should end,
With interest diverted to your monthly dividend?
The program that we'd use to track our Treasury accounts,
Is known around the world as LETS. To barter it amounts.
"Local Employment Trading System" is the name it got,
To run the banks' computers right, a way once vainly sought.
Greendollars are the currency used in a LETS account,
Without the interest that forces growth of due amount.
A member who was spending could go negative at will,
A positive went to the one who made use of his skill.
And though they used no money, they had found a way to trade,
A giant step in the reform of money had been made.
A butcher bought some pastry at the bakery one day,
And called the LETS exchange recorder. He was heard to say:
"Please debit 20 dollars Green from my account for cake.
A credit to account of baker, you, in Green, should make.
The baker took his family to the restaurant one night,
And called the LETS exchange recorder and was heard to cite:
"Please debit 20 dollars Green from my account for meal,
And credit the account of restauranteur in this deal."
The restauranteur, needing meat, had Green with which to buy,
And called the LETS exchange recorder to so testify:
"Please debit 20 dollars Green from my account for meat.
And credit the account of butcher. Circle's now complete!"
Some didn't like to call for every deal they wished to make,
And so agreed each other's check in Green they all would take.
The butcher went to bakery to buy some loaves of bread,
And used a check on which "Worth 20 dollars Green" it said.
The baker took his family out to dine and eat their fill,
And used the butcher's $20 check to pay the bill.
The restauranteur paid for time he spent in dentist's chair,
The dentist used the $20 check for car repair.
The check from the mechanic paid for caring of a nurse,
He plumber gladly nodded when she took it from her purse.
The plumber's children's music teacher, for the check was keen,
Because he knew his seamstress happily took all his Green.
To her account the check was duly credited at last,
And 20 dollar debit to the butcher was amassed.
But had she spent the check back at the butcher shop, we'd see,
Completion of the circle meant the trades were all for free.
The LETS can be adapted to most any database,
Municipal, provincial, federal. In any case.
In yesteryear, only the rich got dividends to spend,
With LETS and plates, "the same for all" our party does intend.
"Plates for the People?" is the question rising cross the land,
Its answer "Dividends for All!" 's the minimum demand.
"Plates for the People" will result in "Dividends for All,"
So candidates with disk in hand, you must help to install.
No need to understand the simple program for we know,
Computer pros at City Hall can surely make it go.
The Party of the Abolitionists of interest,
Will fight the Keepers for the plates, to that we all attest.
Heck of a ditty, eh? The beauty of the LETS is that anyone could
carry the disk because the integrity of the program was in the
software, not in the candidate. So Pauline picked up the disk and took
my place in most of my remaining meetings. She was barred from the big
live televised meeting at Ottawa Cable and though she found it easy at
meetings with her hi-tech answer on her disk to out-class the other
lo-tech candidates who wanted to get elected only to take a look, her
performances got no mention at all and her only live exposure was
refused. How Ottawa Cable satisfied the CRTC requirement to give my
platform equitable time is an interesting question.
The media had some fun with a candidate in jail. Susan Sherring
wrote about a meeting where I read the first 32 lines of the election
ballad I had written:
"For the time being, John "I'm a gambler" Turmel will have to
give his election spiel behind bars. At a recent meeting, he had most
of the audience laughing out loud. During Turmel's act, one man
whispered to his buddy: "He's a Carleton grad. No wonder we're 44th."
And of course, they used the same lousy picture again. After
repeated complaints, they finally chose to use another picture for
their last report on the election campaign.
Despite no mention of the LETS program by the Citizen and a
couple of short ones in the Sun and no live ones on television, I got
over 3500 votes, my all-time high and probably a record for anyone in
jail.
MOTION FOR RELEASE PENDING APPEAL
I re-hired Pierre Bourget to file my appeal and a motion for my
release pending appeal. The Crown was going to oppose my release
unless I agreed to their condition that I not gamble until then. Not
wanting to be the only person in Canada not able to buy a lottery
ticket or to go to the track or other legal activities, I had to
refuse what I thought was an unreasonable demand. I had always been
released pending appeal in Ontario and it's usually not denied to
people convicted of non-violent crimes so why should I give up
activities which are legal for others?
911028 Sun: TURMEL CHOOSES PRISON OVER BAN
It mentioned the Crown wanted me to give up gambling and I would
not, that I would choose prison over such a ban.
Pauline went with Pierre to the hearing on Tuesday, Oct. 29
before Justice Mailhot of the Quebec Court of Appeal in Montreal.
Pierre prepared his case law showing that the public interest is
served by keeping the appellant in jail for "serious crimes with
violence." The whole purpose of a release pending appeal is to make
sure that if the person wins his appeal, he won't have already served
the sentence and only when there's a danger to society is release
pending appeal denied. Despite my non-violent history and the non-
violent nature of my crime, Justice Mailhot decided the public
interest would not be served by my release pending appeal.
What was interesting was that Pierre had told Pauline that we
were the first case on the docket. Yet, after some discussion between
the judge and the clerk, my case put to the bottom of the pile and
called last after the court had been emptied of any possible
witnesses.
When I heard the bad news, something again felt wrong. Why would
a judge change jurisprudence by adding the keeping of a gaming house
to serious crimes with violence? Formerly, only serious crimes with
violence were the reasons for continued incarceration to protect
public interest. Now it's serious crimes with violence or keeping a
gaming house. It's nice to think my case set precedents by the special
interpretations they accorded me but it's no fun being a victim, even
if a famous victim.
911030 Citizen: JUDGE REFUSES TO RELEASE TURMEL
Le Droit: TURMEL MUST STAY IN PRISON; JUDGE REJECTS MOTION FOR
RELEASE PENDING APPEAL
It mentioned that the Crown had argued that it was not in the
public interest for me to be freed.
The only good news was a hilarious Le Droit caricature of me
sitting behind bars in striped prison garb with cards in front me
thinking "There's nothing to do now but to play solitaire." It was by
far the best caricature ever done of me.
Several weeks later, Pierre told me that the Quebec Court of
Appeal had just released someone convicted of murder pending his
appeal!
SPECIAL CONSIDERATION?
On Nov. 7, I sent a letter to Chief Justice of the Supreme Court
of Canada Antonio Lamer wondering if there was something he could do.
I told him I intended on taking the case all the way to the top as he
knew I could since he had sat on the panel in several of my nine
former cases to the top. It didn't seem fair I serve my sentence
before then.
I pointed out the interesting appeal questions like the
contradiction between BINGO and BIBEMATIC over WIS, a decision Justice
Lamer himself had written. I mentioned my three grounds:
1) Res judicata, the two Ontario judgments that had acquitted me
2) Denial of particulars, very unusual
3) No mens rea.
I pointed out it looked like the Quebec Court of Appeal was
changing the law protecting public interest by including "keeping a
gaming house" along with "serious crimes with violence."
Since a judge always has the power "to do anything which is just"
and since I was going to make it to his court with a strong case,
would he order me released pending that appeal?
On Nov. 29, a letter was sent to me from Justice Lamer's Senior
Legal Counsel to whom it had been referred. She pointed out that I
still had the option of having my lawyer go back to the Quebec Court
of Appeal before getting to the Supreme Court of Canada. That's true
but I had better things to do with my money than pay Pierre to go back
to Montreal and walk into a stacked deck. I was asking for special
consideration given my evident innocence.
OUT OF JAIL ON PASS
In Quebec, one is eligible for a pass from the jail after doing
one sixth, 20.5 days in my case. On the lucky 21st day of November,
after 29 days, I was granted a weekly pass. I have to be home every
evening and can't travel more than 50 km from my home. I should be
free of all conditions in January 12, 1992. I would like to thank the
many people who sent cards and letters of encouragement. Mail time had
always been my favorite time of the day.
911122 Sun: TURMEL FREE TO GAMBLE AGAIN
911125 Citizen: JAILED CANDIDATE GOES FREE
THE FOUND-INS
My game was pronounced clean in two well-reasoned Ontario
judgments. It was put through the Quebec legal system and came out
dirty. Had the found-ins been tried first, and each of them had stated
that they'd won or lost at gambling fairly, they might have been
acquitted because there were no illegal flows of money. But by trying
me before the found-ins, the obvious fact that no combination of fair
gambles can result in an unfair gamble for me was not as apparent to
Judge Bonin as it was to Judge Lennox.
Fearing for my friends who will be going in clean and probably
coming out dirty, I decided to give the Crown the win in Quebec and
abandon my appeal if he dropped the charges against the victims of my
"crime." He agreed. 911220 Le Droit: CASINO: CROWN STAYS PROCESS
AGAINST CLIENTS; TURMEL ABANDONS HIS APPEAL
It mentioned that several hours after I had abandoned my appeal
the charges were stayed against the found-ins and that Swanston was
staying discreet as to his reasons.
Citizen: CHARGES AGAINST CLIENTS DROPPED
It mentioned that the charges were dropped "because the clients
were drawn into Turmel's store-front casino believing it was legal."
Wasn't that nice of the Citizen to make Swanston look like such a
great guy and ignore the true reason, the abandonment of the appeal?
WHERE DO I STAND NOW
So where are we now as to the legality of playing cards with me.
Judges Fontana and Lennox, as well as every other judge in Canadian
history, have ruled that it is allowable to make a gain if it is
through skillful gambling. One Quebec judge has said that any gain is
illegal, both the prohibited gambling gains in the (b) subsections and
all gambling gains not prohibited in the (b) subsections.
Right now, it's two equally-ranked judges in Ontario versus one
equally-ranked judge in Quebec. If I went to the Quebec Court of
Appeal, I'd have had to ask them to admit that they were wrong in
BIBEMATIC. Fat chance. By abandoning my appeal, I avoid the
possibility of losing at the Quebec Court of Appeal which would put
the power of the two provincial court Ontario judgments in danger. I
doubt any Ontario authorities will attempt to over-rule two Ontario
judges by only one Quebec judge of identical jurisdiction but they
might get tempted if it were the Quebec Court of Appeal, no matter how
ludicrous the reasoning they might use.
By not appealing, it's still two to one my way. And I'm coming
back under the jurisdiction of the two Ottawa Carleton judges where I
doubt the police would want to be arguing that the Quebec judge is
right and they are wrong. It becomes especially evident they are right
and Bonin is wrong by the quality of the decisions. While Judge Bonin
made no mention of the specific definition he thought applied to my
game and actually made sure the charges were as vague as possible,
Judge Fontana's superior analysis was far more precise and dealt with
each of the five specific definitions. The most interesting point in
all of this is these two different approaches taken by the judges.
Which judge tried the case properly, the one who opened the Criminal
Code and considered the definitions or the one who refused to look at
the definitions. Should a judge open a code and look at the definition
of a crime or should be be able to go on how he feels about it. I
believe that in comparison to Judge Fontana's handling of the issue
and his decision, it is fair to say that not only was Judge Bonin's
decision bad in law but the process he used to arrive at that decision
was bad in law. Did these judges go to different law schools, or what?
Having contrasted the imprecision and ambiguity of the Quebec
decision with the clarity and thoroughness of the Ontario decisions, I
hope you agree it is safe to gamble with me in the Ottawa-Carleton
region as long as those wiser judges are still sitting here. Those who
have grasped the legal points raised should now know that we are safe
gambling at skillful Poker and Blackjack in Ontario since the OPP's
Sgt. Durno will undoubtedly be consulted before any problems arise.
I'd point out that in Nepean in 1979, I had booked the Nepean
Sportsplex to run a game and they canceled my booking. I went to a
Nepean City Council meeting where the newspapers quoted mayor Ben
Franklin saying that Chief of Police Gus Wersch had said that they
were going to leave me alone as long as I stayed within the loopholes
in the law. Though the mayor would not permit me the use of public
facilities, he said I was welcome to rent any private hall in the
city. Except for those few months in Hull, I've operated my game out
of my Nepean home for the last two years and every ever since the Hull
raid. I see no reason to believe that the Ottawa Police or municipal
authorities should feel any differently as long as the games stay as
problem free as they were demonstrated to be in Hull and as long as I
declare my winnings as a professional gambler, there should be no
problem with government. The major advantage to playing in Ottawa-
Carleton is that the Crown Attorneys who handled the case probably
learned a lot more about gambling from the Fontana interpretation than
Swanston will ever learn from the Bonin misinterpretation. Since it
always boils down to whether winning skillfully is an illegal gain or
not, subsection (a), I'd bet the Ontario Crowns will be able to set
any police straight on why Lennox and Fontana are right and Bonin's
wrong.
Finally, if it ever got down the a legal fight, I'd be pointing
out the misinterpretation of MILBERG by Quebec's BIBEMATIC to the
Ontario judges who wrote MILBERG and who will know best that they were
disagreeing with BINGO on bookmaking, not on gaming house. Pointing
out the Quebec court's error to the Quebec court certainly could not
go over as well.
I believe it is safe for me to pursue my plans to create jobs for
people without work to serve people who have work.
After reading this, I hope you agree there was a miscarriage of
justice that befell me in Quebec. All the judges violated my right to
the information which is BAD IN LAW. Though I've given up on the Court
of Appeal, this is my appeal to the Court of Public Opinion. It's what
I would have argued in my appeal. Perhaps someday when gambling has
long been legalized a Justice Minister will reopen the case and have
another look at what went on. In the meantime, I'm going to start
creating jobs in Ontario as fast as I can and give the communities a
chance to keep the gambling entertainment dollars in the community.
NEW OTTAWA GAMES ROOM
For all these reasons, I have chosen to open my new Games Room in
Ottawa on Friday Feb. 28, 1992 at 1141 Baxter Rd. between Woodroffe
and Greenbank at the corner of Iris St. There will be Blackjack tables
with a permanent "U-BANK" table where those wishing to play will have
to bank me at least once every night. There will be several Poker
tables for Hold'em and Fourty-Four. Of course, there will be no rake-
off and any activity within the five gaming house definitions will be
scrupulously avoided.
The most fitting ending would be for all the Quebec gamblers to
start bringing their entertainment dollars to the Ottawa-Carleton
region. I told them I didn't mind moving the jobs to Ontario and now I
will.
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