COURT OF APPEAL FOR ONTARIO
FINLAYSON, ABELLA and AUSTIN JJ.A.
Between
HER MAJESTY THE QUEEN
And
John C. Turmel
Trevor Shaw for the respondent
John Turmel for the Appellant
Heard: May 27, 1996
REASONS FOR JUDGMENT
FINLAYSON J.A.:
On May 16, 1994,
His Honour Judge Peter Wright of the Ontario
Court of Justice (Provincial division)
convicted the appellant,
following his plea of "autrefois acquit,"
of keeping a common gaming
house contrary to s.201(1) of the Criminal
Code. On March 31, 1995,
the appellant received a suspended sentence
and a three year term of
probation. The terms of the probation
required inter alia that he
perform 200 hours of community service,
that he not communicate with
any person known to him to have a criminal
record with exceptions to
be set out in writing by a probation officer,
and that he not be found
in any place where there is gambling with
cards or dice for money
except an establishment licensed for that
purpose. The appellant was
also ordered to pay a victim fine surcharge
of $2,500 within 24
months. He appeals both conviction and
sentence.
APPLICABLE PROVISIONS OF THE CRIMINAL CODE
(A) PROVISIONS RELATING TO GAMING AND BETTING
201. (1) Every
one who keeps a common gaming house or common
betting house is guilty of an indictable
offence and liable to
imprisonment for a term not exceeding
two years.
(2) Every one
who
(a) is found, without lawful excuse, in a common gaming
house or common betting house, or
(b) as owner, landlord, lessor, occupier or agent, knowingly
permits a place to be let or used for
the purposes of a common gaming
house or common betting house,
is guilty of
an offence punishable on summary conviction.
197. (1) In this
part
"common gaming house" means a place that
is
(a) kept for
gain to which persons resort for the purpose of
playing games, or
(b) kept or used
for the purpose of playing games
(i) in which a bank is kept by one or more but not all of
the players,
(ii) in which all or any portion of the bets on or proceeds
from a game is paid, directly or indirectly,
to the keeper of the
place,
(iii) in which, directly or indirectly, a fee is charged to
or paid by the players for the privilege
of playing or participating
in a game or using gaming equipment, or
(iv) in which the chances of winning are not equally
favourable to all persons who play the
game, including the person, if
any, who conducts the game.
(b) PROVISIONS RELATING TO SPECIAL PLEAS
607. (1) An accused
may plead the special pleas of
(a) autrefois acquit,
(b) autrefois convict, and
(c) pardon.
(3) The pleas of autrefois acquit, autrefois convict and
pardon shall be disposed of by the judge
without a jury before the
accused is called on to plead further.
609. (1) Where
an issue on a plea of autrefois acquit or
autrefois convict to a count is tried
and it appears
(a) that the matter on which the accused was given in charge
on the former trial is the same in whole
or in part as that on which
it is proposed to give him in charge,
and,
(b) that on the former trial, if all proper amendments had
been made that might then have been made,
he might have been convicted
of all the offences of which he may be
convicted on the count to which
the plea of autrefois acquit or autrefois
convict is pleaded,
the judge shall give judgment discharging the accused in
respect of that count.
ISSUES
There are three
issues in this appeal:
(1) Whether the
common law doctrine of double jeopardy,
encompassing the special plea of autrefois
acquit, was available to
the appellant, either on the basis that
a prior acquittal converted
the appellant's operation of a gaming
house into res judicata, or on
the basis of the common law plea of issue
estoppel.
(2) Whether the
appellant's winnings from the game of blackjack
constitute a "gain" within the meaning
of s.197(1)(a) of the Code.
(3) Whether the
sentence was fit.
A detailed analysis
of the proceedings before Wright P.C.J., and
related proceedings, is necessary to understand
the arguments on the
first two issues.
OVERVIEW OF THE PROCEEDINGS
The appellant
was charged on July 21, 1993 with keeping a common
gaming house contrary to s.201(1) of the
Code, at two locations in
Ottawa, one on Baxter Rd. (Turmel's Games
Room) and the other on St.
Laurent (Casino Turmel). The appellant's
defence was that he had been
acquitted on April 7, 1989, of keeping
a similar gaming operation at
the Bayshore Hotel on Carling Avenue in
Ottawa.
With respect
to the Carling Avenue premises, in addition to
charges being laid against the appellant
for keeping a common gaming
house contrary to s.201(1) of the Code,
charges were laid against four
other individuals for being found in a
common gaming house contrary to
s.201(2) of the Code. At the trial of
the alleged "found-ins" before
His Honour Judge Fontana of the Ontario
Court of Justice (Provincial
Division), the appellant testified for
the Crown as to the manner of
operation of the game of blackjack. Fontana
P.C.J. found that the
Carling Avenue establishment was not a
"common gaming house" within
the meaning of s.197(1) of the Code and
acquitted the four accused (R.
v. Booth April 3, 1989, unreported Ont.
Ct. (Prov. Div.)). A few days
later, the appellant was tried before
His Honour Judge Lennox of the
Ontario Court (Provincial division) on
the charge of keeping the
Carling Avenue gaming house contrary to
s.20191). Relying on the
finding of Fontana P.c.J. at the trial
of the "found-ins" that the
Carling Avenue casino was not a "common
gaming house" within the
meaning s.197(1), Lennox P.C.J. acquitted
the appellant of keeping the
Carling Avenue casino (r. v. Turmel April,
1989, unreported Ont. Ct.
(Prov. Div.)). The Crown did not appeal
the acquittal in either case.
As noted earlier,
in July, 1993, the Crown laid the instant
charges against the appellant for keeping
the gaming houses at St.
Laurent Boulevard and Baxter Road. On
the basis of his acquittal by
Lennox P.C.J. on the Carling Avenue charge,
the appellant entered a
plea of autrefois acquit. The plea was
struck by Wright P.C.J. and a
plea of not guilty was entered on the
appellant's behalf. On May 16,
1994, the appellant was convicted by Wright
P.C.J. of keeping common
gaming houses at Baxter Road and St. laurent
Boulevard contrary to
s.201(1) of the Code. It is from this
conviction that the appellant
appeals.
PROCEEDINGS BEFORE FONTANA P.C.J.
In the proceedings
before Fontana P.C.J., entitled R. v. Booth,
supra, four accused were charged with
two counts each, the first count
being that they were, without lawful excuse,
in a common gaming house
contrary to s.201(2)(a) of the Code and
the second count being that
they were, without lawful excuse, in a
common betting house, also
contrary to s.201(2)(a) of the Code. The
four accused were found in
the Bayshore Hotel on Carling Avenue in
Ottawa, in a room rented by
the appellant, where blackjack was played.
Fontana P.C.J.
described the Bayshore Hotel premises on Carling
Avenue and the mechanics of how blackjack
was played there:
"The room in question was equipped with a certain minimal
amount of gambling apparatus for the playing
of cards, including decks
of cards, a semi-circular green felt table,
a shoe. Posters were
prominently displayed in the room setting
out the rules of the game.
Mr. Turmel described the game as, "Atlantic
Twenty-one" and throughout
the course of evidence, the examination
and cross-examination,
reference was also made to the term "Black
Jack".
There were additional general rules which are, in my
opinion, of consequence in this case,
the first being that anyone
could be the bank at any time. And attendant
upon that, a player who
wished to enter the game must be the bank
at least once before
playing, and that, presumably, was so
the individual would know how to
be the banker and deal from the shoe in
order to exercise right and
opportunity to be the banker at any time...
As Mr. Turmel indicated in
his testimony, any player could be the
banker all night as far as he
was concerned...
Refreshments were available but there was no charge for
them... There was no fee to enter the
game... There was no percentage
or "rake-off" by the house on the wagering
that occurred... if a
player exercised his right to be a dealer,
then that person played
against him, that is Mr. Turmel, 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 Defence in
Booth brought a motion for a directed verdict.
Fontana P.C.J. granted the motion, and
the charges were dismissed. In
dismissing the charges, Fontana P.C.J.
stated that s.197(1) of the
Code defines "common gaming house" in
five ways. In s.197(1)(a),
"common gaming house" is defined as "a
place that is kept for gain to
which persons resort for the purpose of
playing games." In
s.197(1)(b), "common gaming house" is
defined in four other ways
according to the mechanics of how the
game is played. Fontana P.C.J.
found as follows:
"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 is
mentioned in subsection two; or
where there is a fee charged. Clearly,
none of those first four
criteria apply. If the operation on this
occasion is to be caught, it
must be caught with respect to sub-subsection
four which I quote:
"Kept or used for purposes of playing games in which the
chances of winning are not equally favourable
to all persons who play
the game, including the person, if any,
who conducts the game.""
Fontana P.C.J.
identified the main issue in Booth to be whether
the chances of winning the game were equally
favourable to all
players. He decided that, on the mechanics
of the game as played at
the Bayshore Hotel on Carling Avenue,
the chances of winning were
equally favourable to all players:
"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...
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."
The appellant
is a skilled gambler who has made large winnings at
all of his casinos. The issue before Wright
P.C.J. at the appellant's
trial on the Baxter Road and St. Laurent
Boulevard charges was whether
winnings count as "gains" within the meaning
of s.197(1)(a). The
appellant argues that Fontana P.C.J. considered
this issue at the
trial of the found-ins when he stated
that "the Carling Avenue
operation... clearly does not fall into
the first four categories.
That is: a place kept for gain..." This
passage is the basis for the
appellant's submission that the principles
of autrefois acquit, res
judicata, and issue estoppel were applicable
at his trial before
Wright P.C.J.; he argues that Wright P.C.J.
was bound to acquit him
because the issue whether winnings are
gains was decided in his favour
by Fontana P.C.J. and later by Lennox
P.C.J. who adopted the reasons
of Fontana P.C.J.
PROCEEDINGS BEFORE LENNOX P.C.J.
In the proceedings
before Lennox P.C.J., entitled R. v. Turmel,
supra, the appellant was acquitted of
keeping a common gaming house at
the Bayshore Hotel on Carling Avenue contrary
to s.201(1) of the Code.
Lennox P.C.J. explained the relationship
between the Booth case and
the case before him as follows:
"My brother Judge Fontana, a short time before I commenced
that trial, heard a charge of being a
found-in or found-ins in a
common gaming house at the same address
between the same dates...
I understand that it is common ground that the evidence
called in the course of that proceeding
for all practical purposes are
identical to the present matter and that
any argument that would have
been advanced in this matter, was already
advanced before His Honour
Judge Fontana... I am aware of the decision
of Judge Fontana and of
its result."
Lennox P.C.J.
in Turmel adopted the reasons of Fontana P.C.J. in
Booth with respect to the issue whether
the Carling Avenue premises
constituted a gaming house within the
meaning of s.197(1):
"In Judge Fontana's decision, essentially, as I understand
it is that there was no evidence that
there was, in fact, a gaming
house being kept on the premises.
I would have difficulty, because of that finding, in
rendering what would essentially be a
contradictory verdict on what I
understand to be, basically, the same
facts.
I would propose, without further specific consideration, in
view of the necessity, in my view, of
avoiding contradictory decisions
on the same matter on the same evidence,
to follow the Ruling of Judge
Fontana.
In my view, it would be an error on my part at this point in
time to consider delivering a contradictory
verdict on what amounts to
an argument at law, that being a complete
absence of evidence. In
those circumstances... I propose, simply,
to adopt the reasons, for
the purposes of this trial, of Judge Fontana
and the result."
Accordingly, Lennox
P.C.J. allowed the defence motion for a
directed verdict and the charges against
Turmel were dismissed.
PROCEEDINGS BEFORE WRIGHT P.C.J.
The proceedings
before Wright P.C.J. are the subject matter of
this appeal. Wright P.C.J. described the
gambling operations at the
St. Laurent Boulevard and Baxter Road
locations as follow:
"Mr. Turmel had purchased and owned professional game
playing tables at both premises. Food
and non-alcoholic beverages were
served to the patrons free of charge.
The public was invited to attend
at both premises for the purpose of playing
blackjack with Mr. Turmel
and his employees or poker with Mr. Turmel
and other patrons. Mr.
Turmel and his employees would act as
cashiers.
The Casino Turmel and Turmel's Games Room were attended for
the purpose of playing games such as blackjack
and poker, and the
court was further advised that there was
no fee required to enter the
premises. A patron could buy into a game
at two hundred dollars. Games
were played with poker chips which were
sold by cashiers in
denominations of two dollars fifty cents
to five hundred dollars. If a
player chose to become dealer/banker for
blackjack, the player would
leave the table if there were more than
one player present, or stay at
the table and all the other players would
leave the table. This player
would then become the dealer/banker against
Mr. Turmel or one of his
employees. Patrons were not allowed to
bank against other patrons...
It is indicated that the premises were operated as a
professional organized playing venue with
all the paraphernalia such
as blackjack tables, poker tables, chairs,
playing tables, playing
chips, cards, card dealing shoes, food,
beverage, that there were
monitors for taking cash and playing chips,
a doorman, as well as
camera and surveillance equipment...
The operation [at the St. Laurent location] was much bigger
than at Baxter Road, a full-fledged casino
with many employees, two
games of blackjack and "hold 'em", a type
of poker. He [an undercover
police officer] estimated that there were
seventy-five to one hundred
people in attendance."
The main issue
before Wright P.C.J. was the proper interpretation
of the definition of "common gaming house"
in s.197(1)(a) as "a place
kept for gain." The blackjack rules at
St. Laurent Boulevard and
Baxter Road were designed to ensure the
game fell outside the
definitions of "common gaming house" in
s.197(1)(b); no player was
prohibited from keeping the bank, no portion
of the bets on or
proceeds from the games were paid to the
appellant, no fee was charged
for the privilege of playing, and the
odds of winning, assuming equal
skill among players, were equally favourable
to all. The parties
agreed that the Crown had to prove that
the Baxter Road and/or St.
Laurent Boulevard premises were "kept
for gain" within the meaning of
s.197(1)(a).
Wright P.C.J.
proceeded on the premise that Fontana P.C.J. and
Lennox P.C.J. decided whether the Carling
Avenue casino was a "common
gaming house" by considering s.197(1)(b),
but not s.197(1)(a). Wright
P.C.J. stated:
"Were the Crown proceeding under s.(b), I would find that it
has not been established beyond a reasonable
doubt that there was a
bank kept by one or more but not all the
players or in which the
chances of winning were not equally favourable
to all, given the
signs, rules and equal opportunity to
be banker/dealer, or that the
accused has been shown to fall under any
of the other headings as set
out under (b)...
Were the Crown proceeding under (b), it follows that in
accordance with the Booth decision, I
would enter an acquittal based
on the facts that are before me.
The Crown proceeds today on a different definition and that
is the definition found under (a) which
provides that a "common gaming
house" means a place that is kept for
gain to which persons resort for
the purpose of playing games. If the charge
against Mr. Turmel turns
on the meaning of the word "gain", does
gain include winnings?"
The Appellant
Turmel assumes that by not charging players for
food or drinks, or for the privilege of
gambling, he kept his
operations outside the s.197(1)(a) definition
of common gaming house
as a place kept for gain. He states in
his factum on appeal:
"As long as I didn't violate one of the four (b) definitions
in the subset [i.e. s.197(1)(b)] of illegal
ways of winning chips out
of the games by taking a rake-off from
pots, charging a fee to play,
excluding anyone from being the banker
or having some advantage others
did not have "and as long as we didn't
violate the (a) definition by
playing where someone's cash register
was gaining money, I was never
perturbed when the police came in to my
private halls to check out my
games..." [Emphasis added.]
It is not disputed
that the appellant is an exceptionally skilled
professional gambler who supported his
establishments and paid his
employees out of his large winnings. Because
he is exceptionally
skilled, the rule prohibiting players
from banking against anyone but
him or an employee of his helped him make
large winnings. But he
argues his winnings are not "gains" within
the meaning of s.197(1)(a)
because he earned them by skill, the odds
being equally favourable to
all players.
However, Wright
P.C.J. interpreted "gain" in s.197(1)(a) to
include winnings:
"I conclude that this was a business, a commercial activity
on a large scale. There is no evidence
of any indirect gain or income
whatsoever, only from the business of
gambling directly.
There is no other reason for the places to have been kept
other than to produce income. I conclude
that gambling income does
come within the meaning of (a), and I
must conclude that the charge is
proven, and there will be a finding of
guilty."
The appellant
argues that his gambling operations at St. Laurent
Boulevard and Baxter Road were the same
as his operation at Carling
Avenue impugned in the earlier decisions
of "Booth" and "Turmel." He
contends that with no evidence of any
change in the gambling
operations, Wright P.C.J. was precluded
from convicting him by
interpreting the word "gain" in s.197(1)(a)
of the Code differently
than did Fontana P.C.J. and Lennox P.C.J.
In rejecting the
appellant's argument that the principle of "res
judicata" applied to bar him from interpreting
"gain" differently than
did Lennox P.C.J. and Fontana P.C.J.,
Wright P.C.J. held as follow:
"In relation to the argument of res judicata raised on the
last day, I am satisfied that the defence
cannot succeed. Whatever the
determination with respect to the meaning
of "kept for gain", I am
satisfied that it is a distinct issue
and question of law from the
issues which were raised in the previous
cases in R. v. Booth and R.
v. Turmel, Ottawa. Further, in respect
of R. v. Booth, the parties are
not the same persons."
ANALYSIS
ISSUE (1) Whether
the common law doctrine of double jeopardy,
encompassing the special plea of autrefois
acquit, was available to
the appellant, either on the basis that
a prior acquittal converted
the appellant's operation of a gaming
house into "res judicata," or on
the basis of the common plea of issue
estoppel.
The meaning of
the plea of "autrefois acquit" is explained by
Dickson J. for the Supreme Court of Canada
in R. v. Riddle (1980)
S.C.R. 380 at p385:
"One of the fundamental rules of the criminal law is
expressed in the maxim, nemo debet bis
vexari pro una et eadam causa,
no person shall be placed in jeopardy
twice for the same matter. By
the special plea of "autrefois acquit,"
founded upon that maxim, the
accused says simply that he has been previously
acquitted of the
offence with which he is now charged;
that offence is res judicata,
i.e. it has passed into a matter adjudged.
A second prosecution is,
therefore, not open. In the case at bar,
the respondent says that the
assault alleged in the first information
has become converted into res
judicata or judgment.
The classic statement of the principle is found in Hawkins'
Pleas of the Crown (1726), Bk. II, c.35,
p368:
"That a man shall not be brought into danger of his
life for one and the same offence more
than once. From whence it is
generally taken, by all the Books, as
an undoubted consequence, that
where a man is once found "not guilty"
on an indictment or appeal free
from error, and well commenced before
any court which hath
jurisdiction of the cuase, he may by the
common law in all cases
whatsoever plead such acquittal in bar
of any subsequent indictment or
appeal for the same crime.
In short, when a criminal charge has been once adjudicated
by a court having jurisdiction, the adjudication
is final and will be
an answer to a later information founded
on the same ground of
complaint."
The appellant
relies on two decisions to argue that the plea of
"autrefois acquit" is available to him:
R. v. Carrier (1951), 104
C.C.C. 75(Q.K.B.) and City of Montreal
v. Rothman Realty Ltd (1963),
41 C.R. 372 (Mtl. Mun Ct.). In "Carrier,"
the appellant appealed his
conviction of publishing false news contrary
to s.136 of the Code on
the grounds that he had previously been
acquitted of publishing a
seditious libel contrary to s.134 of the
Code. The court, in
overturning the conviction on the principle
of "autrefois acquit,"
found that although the appellant was
charged with two different
offences, because the impugned pamphlet
was the same in both cases,
the outcome of the seditious libel case
was determinative for the
purpose of deciding the false news case.
The court stated at p.84:
"In the first indictment it was said: "The document contains
a seditious libel and in the second it
is said: "The document is of a
nature to occasion injury or mischief
to the public interest." This
second charge forms part of what the Code
calls "seditious offences."
Nowhere does the Code define what is understood
by the words "whereby
injury or mischief is occasioned to any
public interest." But read in
the context the Court believes that if
this document was not seditious
it could not have the effect of causing,
criminally, such injury or
mischief to the established authority.
The court held
that the applicability of the principle of
"autrefois acquit" depends on whether
the first matter on which the
appellant was arraigned was the same,
in whole or in part, as the
second matter on which it is proposed
to prosecute him. If, by making
the necessary amendments to the indictment,
the accused could have
been convicted of the second charge, the
principle applies and no
prosecution should lie.
The appellant
argues that in "Carrier," the impugned pamphlet was
the same on both indictments. The indictment
in the seditious libel
case could have included the false news
charge: only the charge and
the date and location changed. In the
case on appeal, the charge
before Wright P.C.J. was the same as the
charge before Lennox P.C.J.,
as in "Carrier," the date and location
had changed. The appellant
submits that the "Carrier" case should
be taken to mean that changes
in the date and location of an offence
are insignificant, therefore,
Wright P.C.J. should have applied the
principle of "autrefois acquit."
However, in "Carrier,"
the content of the pamphlet was the most
important part of the both cases; Drouin
J. of the Quebec Court of
King's Bench applied the principle of
"autrefois acquit" because the
pamphlet in the false news case was identical
to the pamphlet in the
seditious libel case. Similarly, in "City
of Montreal v. Rothman
Realty," supra, Lachapelle Mun.Ct.J. dismissed
the charge of operating
a rooming house on the grounds that the
accused had previously been
acquitted of the same charge in relation
to the very same building.
The appellant relies on "Carrier" and
"City of Montreal" as precedents
for his plea of "autrefois acquit," but,
on principle, these two cases
are better reconciled as applications
of the doctrine of "stare
decisis."
In the case under
appeal, while it is true that the blackjack
rules at the Baxter Road and St. Laurent
Boulevard casinos appear to
have been much the same as the blackjack
rules at the Bayshore Hotel
on Carling Avenue, it is clear from the
reasons of Wright P.C.J. that
the features of the premises at Baxter
Road and St. Laurent Boulevard,
including their size and location and
the scope of the gaming
operations as a whole, were important
considerations in his conclusion
that the premises constituted places "kept
for gain." The appellant
argues that Fontana P.C.J.'s finding that
the Carling Avenue casino
was not a "common gaming house" constituted
a finding that blackjack,
wherever played in accordance with the
rules testified to by the
appellant, will survive scrutiny under
s.197(1) of the Code. While not
expressing himself in these terms, the
appellant apparently treats the
judgment of Fontana P.C.J. as a judgment
"in rem" converted into a
judgment "in personam" when adopted by
Lennox P.C.J. The appellant
submits that he can never be prosecuted
for an offence arising out of
the playing of blackjack as long as it
is played in accordance with
the "Turmel rules," on the grounds that
his version of blackjack has
been found not to contravene the Code.
He arrives at this conclusion
by arguing that Fontana P.C.J., in acquitting
the found-ins in R. v.
Booth, vindicated the appellant's version
of the game; that Lennox
P.C.J., in adopting Fontana P.C.J.'s judgment
acquitted the appellant
because his version of blackjack did not
constitute his premises a
common gaming house. Accordingly, he submits,
Wright P.C.J. erred in
distinguishing the appellant's earlier
acquittal by Lennox P.C.J. on
the basis that the Crown introduced evidence
not proffered in the
earlier proceedings.
But that the Carling
Avenue premises were not kept for gain is
not determinative of whether the St. Laurent
Boulevard or Baxter Road
premises were kept for gain, even if the
rules of blackjack were the
same at all three casinos. That the findings
of Fontana P.C.J. and
Lennox P.C.J. might be "persuasive" before
Wright P.C.J. does not mean
those findings justify the special plea
of "autrefois acquit." In my
view, the appellant's argument confuses
"autrefois acquit" with the
doctrine of "stare decisis" whereby Wright
P.C.J.'s deliberations were
constrained, but only to the extent he
felt bound by judicial comity,
to interpret the meaning of "gain" in
s.197(1)(a) in the same manner
as his colleagues Fontana P.C.J. and Lennox
P.C.J. The plea of
"autrefois acquit" was not applicable
in the proceedings before Wright
P.C.J., even accepting the appellant's
assertion that Lennox P.C.J.,
in acquitting the appellant of the Carling
Avenue gaming house charge,
decided the issue whether winnings count
as gains under s.197(1)(a).
Wright P.C.J. was entitled to reconsider
that issue on new evidence
because pursuant to s.609(1)(a) of the
Code, for the appellant's plea
to succeed, "the matter on which he was
given in charge" before Lennox
P.C.J. must have been "the same in whole
or in part" as the matter on
which he was given in charge before Wright
P.C.J.
The only
evidence on our record is that the blackjack rules were
largely the same at Carling Avenue, Baxter
Road, and St. Laurent
Boulevard. The appellant argues that this
identity of rules grounds
the plea of "autrefois acquit;" he argues
that since blackjack was
played the same way at all three premises,
the acquittal with respect
to one of the premises is determinative
of his innocence of keeping a
common gaming house at the other two premises.
But if, despite the
identity of the blackjack rules, the "matter"
in the three cases is
not the same, in whole or in part, within
the meaning of s.609(1)(a),
then the appellant's plea must fail. The
appellant was not on trial
before Fontana P.C.J. and he cannot rely
upon that judgment "per se."
He must rely upon the adoption of that
judgment by Lennox P.C.J. to
argue that the matter of his guilt on
the charge of keeping a common
gaming house at the Carling Avenue premises
was the same as the matter
before Wright P.C.J. of his guilt on the
same charge at the Baxter
Road and St. Laurent Boulevard premises.
But on authority, the
"matter" before Lennox P.C.J. was not
the same as that before Wright
P.C.J. because the matters involved different
factual transactions.
Ewaschuk, in "Criminal
Pleadings and Practice in Canada," 2d ed.
(Aurora, Ontario: Canada Law Book, 1996)
suggests at p.14-13 that two
matters are the same within the meaning
of s.609(1)(a) only when they
arise from a single factual transaction:
"Questions for determination on the special plea of
"autrefois acquit" or "autrefois convict"
are:
(a) whether the accused has previously been finally
convicted or acquitted "on the same factual
transaction;" [Emphasis
added.]"
The "same factual
transaction" means not two transactions having
identical facts, but one transaction giving
rise to multiple charges.
For example, in R. v. Prince, (1986) 2
S.C.R. 480, the respondent was
convicted of causing bodily harm to a
pregnant woman by stabbing her
in the abdomen. The respondent was later
charged with manslaughter in
respect of the child, who died after a
premature birth. The respondent
moved for a stay of the manslaughter proceedings
on the basis of the
principle of R. v. Kienapple, (1975) 1
S.C.R. 729. According to the
"Kienapple" principle, an accused may
not be prosecuted for two more
more substantially similar offences if
the offences arise from the
same cause or matter. The issue in Prince
was whether the Kienapple
principle applied to bar the manslaughter
proceedings. Dickson C.J.
stated in "Prince," at p.491:
"It is elementary that "Kienapple" does not prohibit a
multiplicity of convictions, each in respect
of a different factual
incident. `Offenders have always been
exposed to criminal liability
for each occasions on which they have
transgressed the law, and
"Kienapple" does not purport to alter
this perfectly sound principle.
It is therefore a "sine qua non" for the
operation of the rule against
multiple convictions that the offences
arise from the same
transaction. [Emphasis added.]"
Consistent with
this statement, Martin Friedland states as
follows in "Double Jeopardy (Oxford: Clarendon
Press, 1969) at p.213:
"Most courts agree that multiple convictions and punishments
for violating the "same" statutory provision
are permissible when each
is brought about by a different physical
act."
In "Canadian Criminal
Procedure, 4th ed. (Aurora, Ontario: Canada
Law Book, 1984), Salhany states, at p.252,
that a plea of "autrefois
acquit" is grounded, not in the similarity
of the facts giving rise to
multiple prosecutions, but in the similarity
of the offences, arising
out of a single transaction, on which
an accused is prosecuted:
"It is provided under section 537(1) [now s.609(1)] that if
the "matter" of the earlier charge is
the same in whole or in part as
the later charge, and if the accused might
have been convicted of all
offences on the earlier charge (assuming
that all proper amendments
had been made that could have been made)
of which he may be convicted
on the later charge, a plea of "autrefois
convict" or "autrefois
acquit" is applicable. `The term "matter"
here refers to offences and
not the facts. Accordingly, the true test
is whether the two charges
relate to offences which are similar and
not whether the facts in both
cases are similar.' [Emphasis added.]"
What is clear,
in my view, is that multiple prosecutions under
the same statutory provision are permitted
if each prosecution arises
from a different physical act. An accused
can be charged twice, for
the same offence, if the charges arise
from separate transactions.
What is equally clear is that if an accused
is convicted with respect
to the first transaction, he or she cannot
plead "autrefois convict"
when charged with the second. What should
be equally clear on
principle is that if an accused is acquitted
with respect to the first
transaction, he or she cannot plead "autrefois
acquit" when charged
with the second. If the appellant Turmel
had been convicted by Wright
P.C.J. on the Baxter Road and St. Laurent
Boulevard charges `before '
being tried by Lennox P.C.J. on the Carling
Avenue charges, an
argument before Lennox P.C.J. of "autrefois
convict" would surely have
failed, since accused persons are answerable
to society for each
occasions on which they transgress the
law. Since a prior conviction
could not ground an argument of "autrefois
convict" on a later trial
of the same charge arising from a new
transgression, neither should a
prior acquittal ground an argument of
"autrefois acquit" on a later
trial of the same charge arising from
a new transaction. The pleas of
"autrefois acquit" and "autrefois convict"
should be treated as
symmetrical; both pleas require that the
previous verdict arise from
the same transaction on which it is later
purported to try the
accused.
I have not found
an authority in which the principle of double
jeopardy is expressed in these terms but
on principle, it appears to
me that the pleas of "autrefois acquit"
and "autrefois convict" are
the two sides of the double jeopardy coin.
Both an acquittal and a
conviction terminate the proceedings,
and subject to remedies on
appeal, each verdict is final and binding
as between the citizen and
the state. But the verdicts cover transactions
past, not future. They
do not preclude, "per se," other prosecutions.
The acquitted citizen
is in no better position than a convicted
one if he or she should
later break the law. This does not
mean an accused is without remedy
if he or she feels a prosecution following
an acquittal amounts to
harassment. As I have indicated, the court
may rely on "stare decisis"
to grant relief and, in a proper case,
the remedy of a stay for abuse
of process is available both at common
law and under the Canadian
Charter of Rights and Freedoms.
The final obstacle
to the appellant's double jeopardy argument is
that there is some ambiguity whether Fontana
P.C.J. and Lennox P.C.J.
turned their minds directly to the issue
whether winnings count as
gains within the meaning of s.197(1)(a).
This ambiguity must be
resolved in favour of the respondent Crown
because the principles of
"res judicata" and "issue estoppel" apply
only when an issue was
clearly decided in a previous litigation.
In R. v. Van Rassel, (1990)
1 S.C.R. 225, the Supreme Court of Canada
rejected the respondent's
argument of issue estoppel, at p.238-239:
"The rule that a court should not rule on an issue that has
already been decided by another court
is a fundamental principle of
our system of justice. The fact that a
matter has already been the
subject of a judicial decision may raise
an estoppel against the party
seeming to relitigate the matter. This
is the principle of issue
estoppel, and it too is related to the
principle of "res judicata."
Issue estoppel is recognized in Canadian
criminal law: Gushue v. Queen
(1980) 1 S.C.R. 798.
The respondent suggests that issue estoppel could not apply
with respect to a foreign criminal judgment
since the parties involved
are not the same. It will not be necessary
to decide this point since
it is well established that the principle
applies only in
circumstances where it is clear from the
facts that the question has
already been decided. Laskin C.J. wrote
in "Gushue," at 807:
"I am of opinion that the question of issue estoppel in
respect of the robbery conviction is put
to rest by the following
statement, which I adopt, in Friedland,
Double Jeopardy j(1969), at
p.134:
"The possibility or even the probability that the
jury found in the accused's favour on
a particular issue is not
enough. A finding on the relevant issue
must be the only rational
explanation of the verdict of the jury.""
Similarly, Salhany in "Canadian Criminal Procedures, supra,
states at p.255:
"Before issue estoppel can apply, the court must be
satisfied that the issue sought to be
estopped has been clearly and
unequivocally decided by the court in
the first proceeding as a
fundamental step in the logic of the decision.""
ISSUE (2)
Whether the winnings from the game of blackjack
constitute "gain" within the meaning of
s.197(1)(a) of the Code.
ADDITIONAL FACTS RESPECTING THIS ISSUE
During the period
covered in the information, the appellant kept
the alleged gaming houses at Baxter Road
and St. Laurent Boulevard.
The scale of the gambling operations at
these locations necessitated
the employment of dealers, cashiers,and
runners. At the St. Laurent
Boulevard operations, which an undercover
officer described as "a
full-fledged casino," 18 to 20 uniformed
employees were observed
serving an estimated 75 to 100 customers.
At the Baxter Road location,
the officer saw seven blackjack tables,
five of which were observed in
operation at one time. The appellant admitted
having 100 employees and
monthly wage costs of $175,000 in January
of 1993. Business was so
good that eventually, the St. Laurent
location casino operated 24
hours a day.
The appellant
made expenditures on advertising in print and by
mail; on free bus transportation of patrons
from Montreal, on the
provision of free food and drink; and
on video surveillance equipment.
In an 18-day period covered by a police
audit, over $26,000 was spent
on promotions and $5,800 on food provided
free to customers. The rent
at the Baxter site was $500 per week and
at St. Laurent Boulevard
$2,500 per week.
The appellant
earned impressive revenues. In October 1992, the
appellant stated that his net revenue
from the Baxter operation was
$20,000 to $30,000 per month. For January
1993,the appellant claimed
gross revenues from his Ottawa casino
of $600,000. He made between
$350,000 and $450,000 per year from gambling.
In his statement
to police, the appellant's former general
manager, Donald Cribbie, described the
bonuses he received as a
percentage of the casino profits. He conservatively
estimated yearly
profits of the combined operation at $1,000,000.
A forensic audit over
an 18-day period confirmed that weekly
earnings after salary expenses
were close to $25,000.
The appellant's
rules for blackjack provided that the role of the
"bank" would be rotated to the players.
Expert evidence was led that
there is an "edge" associated with being
the bank because hands that
"go bust" [over 21] are forfeited to the
bank and because the bank
always plays last. While the player does
have certain options not
available to the bank, such as insurance
and doubling down, the party
holding the bank still has a theoretical
edge of .88 percent --
assuming players are using the optimum
strategy. In practice, given
the varied level of skill among players,
the average industry "drop"
in favour of the house is 15 percent.
Only if each can be the bank
half of the time is the edge shared equally
between the house and the
players.
The evidence was
that the bank did not rotate form the house to
the players in an equal manner, but only
in a restricted manner that
did not confer on the customers the full
advantages that go with being
the bank: the players could only be the
bank against one player,
namely the house (Mr. Turmel or one of
his employees), not against a
number of other players, which deprived
the players of an advantage
normally associated with being the bank:
Turmel's rules obliged each
player to be the bank only once in the
evening, not fifty percent of
the time; and the rules in question
were only loosely enforced and
the undercover officer who took the stand
only infrequently observed a
customer being the bank.
Given the volume
of gambling at issue in this case, the edge in
practice retained by the house helped
create substantial revenues for
the appellant. Between $1,500 and $24,000
an hour was being wagered at
the appellant's tables. Donald Cribbie
stated:
"The casino makes its money from the blackjack tables. It's
what pays the bills. If you take out the
blackjack tables you wouldn't
make money. If you don't make money the
casino wouldn't be there."
ANALYSIS:
The appellant
took no issue with any of the above evidence.
Indeed he proclaimed in this court that
he was running the games to
make "winnings," as he preferred to style
his gains. While the
evidence and the argument focused on the
game of blackjack, the
appellant readily conceded that he made
money from all the card games
played at his casinos. He was successful
in consistently winning
because he was an exceptional card player
and, he argued, his
"winnings" did not constitute "gains"
under s.197(1)(a) of the Code.
In his submission, so long as the operation
of his casinos avoided the
four pitfalls of the s.197(1)(b), he was
committing no offence by
being a winner because the Code proscribes
indirect gains but not
direct gains from the playing of the games
themselves. He likened his
operations to a situation where a person
invites friends over for a
game of poker, provides refreshments (free),
and ends up with most of
the pots.
I agree with the
Crown that the appellant's interpretation of
s.197(1)(a) is much too narrow. It contemplates
reading into
s.197(1)(a) the word "indirect" to modify
"gain." It would exclude
"profit" from these business operations
called casinos. It is quite
true that almost all the published judgments
deal with convictions
respecting infractions of the four subsections
of s.197(1)(b), but as
the Crown points out, this is because
historically that is the
simplest method of prosecuting a keeper
of a gaming house. I cannot
accept that an operation of the magnitude
of that described in the
evidence before us does not constitute
keeping a common gaming house
for gain. If the appellant's argument
is valid, prosecutions could
only succeed under s.197(1)(b) where that
specified conduct can be
identified. The appellant's comparison
between his operations and
friendly poker games is of little assistance.
There comes a point
where a game ceases to be friendly and
becomes commercial gambling, an
activity prohibited by Parliament. I agree
with the following
statement from the factum of the Crown:
"By restricting s.197(a) to indirect gains only, the gaming
provisions of the Code would read down
to mere prohibitions on casinos
charging for drinks or parking. This would
be contrary to the clear
objective of the provision which is to
restrict commercial gaming
itself."
This statement
appears to be supported by authority, limited as
it is on this specific point. In Rocker
et al, v. Queen, (1978) 2
S.C.R. 704 the trial judge convicted the
appellants of unlawfully
keeping a common gaming house contrary
to s.201(1) of the Code. The
Ontario Court of Appeal dismissed the
appellant's appeal. The issue
before the Supreme Court of Canada was
whether the term "common gaming
house" in s.179 of the Code could be interpreted
to permit a
conviction where the premises in question
were used for gaming on only
one occasion.
The majority of
the Supreme Court reversed the Court of Appeal
and overturned the convictions, holding
in part that a business
purpose test should not be imported
into s.197(1)(b) of the Code
because a business purpose test was already
contained in s.179(1)(a).
Estey J., writing for the majority, made
clear that the test whether a
place is "kept for gain" is a business
purpose test. He stated at
p.707:
"It is reasonable, in my opinion, to import a business
purpose test into the second definition
in the face of the express
words employed by Parliament in the immediately
preceding portion of
gain. that requirement has for many years
been interpreted loosely as
"kept for business purposes"..."
Estey J.'s insistence
that s. 197(1)(a) contains a business
purpose test suggests that a place is
"kept for gain" within the
meaning of the section when the place
is run as a commercial
enterprise for profit. There is no distinction
drawn in the Code or in
the analysis of Estey J. between profit
made indirectly form sales and
profit made directly from winnings.
The appellants
in DiPietro v. Queen, (1986) 1 S.C.R. 250 were
convicted of keeping a common gaming house
contrary to s.201 of the
Code. The appellants owned an establishment
called "Corrado Billiards"
where pool and cards were played and refreshments
were sold.
Customarily, the loser of the Italian
card game of "scalaforti" would
purchase coffee for the other players.
The Ontario Court of Appeal
dismissed the appellants' appeal from
conviction. The Supreme Court
reversed the Court of Appeal and overturned
the convictions, holding
that wagering, or the chance to win or
lose money or money's-worth,
was a necessary element of the offence
of gaming, but the custom
whereby the loser bought the winner's
refreshments did not satisfy the
wagering requirement.
Referring to the
definition of common gaming house, Lamer J. for
the majority, stated at p.258 that the
first two requirements of the
definition, keeping a place and making
a gain, were satisfied because
"the appellants admitted that they are
the proprietors of Corrado
Billiards and that they profit from this
"undertaking." "Profit from
this undertaking" is a broad phrase that
does not, unless read down,
suggest that profit must be made indirectly
from the sale of
refreshments but not directly from the
playing of the game.
Consistent with
the principles of statutory interpretation set
out by the Supreme court of Canada in
R. v. McIntosh, (1995) 1 S.C.R.
686, I see no reason to read down the
plain meaning of s.197(1)(a) so
as to interpret "gain" to include indirect
gains but not direct
winnings.
DISPOSITION ON CONVICTION APPEAL
For the reasons
given with respect to issues (1) and (2), I would
dismiss the appeal against conviction.
The plea of "autrefois acquit"
was not available and Wright P.C.J. was
not bound by precedent to find
that the appellant's version of blackjack
was legal. He was also
correct in his finding that the "casinos"
in question were common
gaming houses as being places kept for
gain to which persons resorted
for the purpose of gaming.
ISSUE (3) Whether the sentence was fit.
The appellant
was given a suspended sentence and three years
probation. He was ordered to pay a victim
fine surcharge of $2,500 and
to perform 200 hours of community service.
He was prohibited from
patronizing unlicensed gambling establishments
and from associating
with persons with criminal records.
On an application
to stay the sentence pending appeal, this
court, on September 8, 1995, affirmed
the terms of probation with the
following variations: the prohibition
on patronizing unlicensed
gambling establishments was varied to
a prohibition on illegal
gambling, and the prohibition on associating
with persons with
criminal records was varied to a prohibition
on associating with
persons with criminal records was varied
to a prohibition on
associating with persons with records
for gambling.
In sentencing
the appellant, Wright P.C.J. considered the
following aggravating factors: the appellant's
related criminal
records, his recent 4-month jail sentence
for gambling, the size of
his proceeds from gambling, the evils
of unregulated gambling in
general, and the need for general deterrence.
He considered the
following mitigating factors: the appellant's
co-operative attitude
during the investigation and trial, his
substantial volunteer and
community work, his pledge not to set
up other casinos, the fact that
he is not a dishonest or violent individual,
and the fact that this
was a test case on the issue whether winnings
count as gains under
s.197(1)(a) of the Code.
In this court,
the appellant submits that the issues in this case
are novel and his prosecution should be
treated as a test case. I
think the case is novel. On the other
hand, the appellant was treated
leniently. An operation of this nature
could easily have attracted a
custodial term, especially given that
the appellant has previously
been sentenced to jail for gambling. The
sentence imposed by Wright
P.C.J. properly reflects the mitigating
factors. I am satisfied that
the magnitude of the operation justifies
the sentence imposed and that
Wright P.C.J. committed no error in principle.
I would revise the
sentence only to the extent of giving
effect to the changes to the
probation order made by this court on
September 8, 1995.
Accordingly, I
would grant leave to appeal sentence and allow the
appeal to this limited extent.
Finlayson J.A.
Abella J.A.: "I agree."
Austin J.A.: "I agree."