Between
JOHN C. TURMEL
Appellant
(Defendant)
- and -
HER MAJESTY THE QUEEN
(Respondent)
MEMORANDUM
PART I: FACTS
1. On Feb 23 1988,
the Ottawa Police raided a game of U-bank
Blackjack at the Bayshore Hotel in Ottawa
and charged John and
Ray Turmel with keeping a common gaming
house and keeping a
common bookmaking house. Also charged
were Tasso Paliovarkas,
Gene Lo, and David Booth with being found-ins
in the gaming and
bookmaking houses.
2. Unlike all
other Criminal Code sections where the accused
is presumed "Innocent until proven guilty,"
in the case of
Disorderly Houses, - gaming, betting and
bawdy houses - there is
a reverse onus where the accused is presumed
"guilty until proven
innocent." If a police officer walks in
and finds betting slips,
you're guilty until you prove that you
weren't a bookmaking
house. Reverse onus. If a police officer
finds you gambling with
a deck of cards, you're guilty until you
prove that you were not
a gaming house. Reverse onus.
3. On Mar
29 1994 at the trial of found-ins Dave Booth,
Gene Lo and Tasso Paliovarkas, John Turmel
was the Crown's expert
witness in the Mathematics of Gambling
and explained how Mutual
Exclusivity applied. Players were instructed
to admit:
"I bet, I called, I played, I banked, no
rake-off and no fee,
I won, I lost, I tipped with always chips,
no GST.
4. Judge Fontana
first ascertained under section (a) if
Tasso, Gene or David had bought anything?
"No GST." Only
gambling money came out of our wallets.
Then Judge
Fontana checked into the gambling under section
(b) of gaming house definition and asked:
- if they'd been
"excluded from being the bank?"
No. "We played,
we banked" against John or Ray up to half
the time.
- if they lost
any chips to a rake-off?"
"No rake-off."
- if they lost
any chips "to a fee?"
"No fee."
- if they were
at any kind of disadvantage at all?
No. "We played,
we banked," up to half the time and by the
statistical law of "mutual exclusivity,"
as long as all could
bank half the time, it didn't matter whose
chips anyone tried to
win to guarantee a fair 50:50 game.
4. After the Crown
had rested its case, the Defence moved
for a directed verdict of acquittal on
the grounds that there was
no evidence of the presumption that any
of the five gaming house
definitions had been violated. Judge Fontana
reserved his
decision to April 3.
5. On Mar 31 1989
at the trial before Judge Lennox of the
keepers, John and Ray Turmel, the Crown
drafted a Statement of 19
Agreed Facts signed by both parties. After
the Crown had rested
its case, the Defence moved for a directed
verdict of acquittal
on the grounds that there was no evidence
of the presumption that
any of the five gaming house definitions
had been violated. Judge
Lennox reserved his decision to Apr 8
after the Apr 3 decision of
Judge Fontana.
6. On Apr 3 1989,
Ontario Provincial Court Judge Fontana
granted the motion for a directed verdict
of acquittal of Tasso
Paliovarkas, Gene Lo and David Booth after
listing the evidence
and ruling (p9-
"- 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,
- a player exercised his right to be dealer.(page9)
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:
- a place kept for gain,
or for playing games where
- the bank is held by one
or more but not all players,
- there is a rake-off charged,
- there is a fee charged.
Clearly, none of these four criteria apply. If the
operation is to be caught,
it must be caught with respect to
subsection four.(page 12)
The opportunity to be the banker\dealer was available to
all players who participated
in the game.(page 15)
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."(page 16)
7. There are only
5 illegal ways for money to leave a found-
in's wallet in an illegal common gaming
house and Judge Fontana
had ruled that none of those 5 illegal
flows had taken place
playing Blackjack according to Turmel-style
house and game rules.
The charge of keeping a common bookmaking
house was withdrawn
because illegal card-playing is a gaming
offence, not a
bookmaking offence.
8. On April 8,
1989, after being presumed guilty of keeping
a common gaming house by the same reverse
onus, Judge Lennox
found that given Judge Fontana's judgment
that there had been no
illegal flows from the found-ins wallets,
there could be no
illegal flows into Turmel's wallet and
adopted the reasons of
Judge Fontana to direct a verdict of acquittal
of this unique
uncommon gaming house.
9. The Crown did
not appeal and has never chosen to try to
overturn those trial acquittals at the
appellate court.
10. Being found
innocent after facing the reverse onus is
far more powerful than remaining innocent
after facing the Crown
onus. My acquittal brought me back all
the way from the black of
"presumed guilt" whereas the ordinary
acquittal leaves the
accused at the white of presumed innocence.
I had to use an
offensive defence while the usual accused
uses a purely defensive
defence.
11. On Feb 28
1992 I alerted the police I was moving my
Turmel's Games Room to the Baxter Rd.
Plaza and expanded to 5 U-
bank Blackjack tables and 2 Poker tables
with 14 employees. After
8 months, on Nov 14 1992, I alerted the
police I was moving to
the Topaz Entertainment Plaza on St. Laurent
Blvd. in Ottawa with
20 U-Bank Blackjack tables and 7 no-rake-off
Poker tables served
by 122 staff. As news of such a large
uncommon gaming house in a
city being denied its own casino by the
Province of Ontario,
political pressure mounted to close me
down.
12. On Mar 23
1993, after learning the Crown was simply
going to re-charge me again rather than
file an appeal, I filed
an application before Justice Finlayson
of the Ontario Court of
Appeal to extend the time for the Crown
to appeal as the proper
route for the Crown to be taking to answer
the question with a
minimum of inconvenience and possibility
of violating gamblers'
rights. Judge Finlayson ruled that I could
not initiate an
application to extend the time for the
Crown to appeal as only
the Crown could initiate such an appeal
from an acquittal. And
the Crown did not want to appeal those
acquittals.
13. On July 13
1993, with the acquittals of Judges Fontana
and Lennox still not overturned, Ottawa
Police launched the
"Project Robin Hood" raid on Casino Turmel
at Topaz Plaza. Added
to the common gaming house charge was
not only the common
bookmaking house charge under Section
201(1) which had been
withdrawn in 1989 but also two new bookmaking
offences: "being in
the business of bookmaking" under section
202(1)(c) and
"controlling monies from bookmaking" under
Section 202(1)(e). I
stood mute at my plea.
14. Though there
was no change in the operations of the
games, there was a change in the information
which the new court
was going to hear. Since a judicial ruling
on the legality of the
found-ins losses had hindered the past
prosecution, they solved
that problem by not charging any found-ins.
While the innocence
the winnings was easily seen by Judge
Lennox after Judge Fontana
had looked into the losses, that innocence
was harder to prove
when the next judge was only going to
looking into the winnings.
This is the first instance of the Crown
stacking the deck.
15. On Oct. 3,
1993, David Booth was charged with keeping a
"2-Man U-Bank Blackjack" game and Gene
Lo was once again charged
as one of the found-ins playing with him.
16. On Oct 22,
Mr. Lo and 3 other found-in accused appointed
me as their legal agent to represent them
on this summary
conviction offense and I was going to
get the chance to prove
once again that from the found-ins simple
point of view, none of
the five illegal flows of money came out
of their wallets in
Turmel-style Blackjack.
17. On Nov 15,
1993, I raised the Canadian double-jeopardy
special pleas of Autrefois Acquit, Issue
Estoppel and Abuse of
Process for John Turmel (formerly-acquitted
keeper and currently-
charged keeper), David Booth (formerly-acquitted
found-in and
currently-charged keeper) and Gene Lo
(formerly-acquitted found-
in and currently-charged found-in) before
Ottawa Provincial Court
Judge Peter Wright. As the pleas were
all based on the Lennox and
Fontana decisions, the Crown had argued
they should be heard
together. Another motion sought to quash
the bookmaking charges
because case law placed playing cards
under a gaming, not
bookmaking, offence.
18. Judge Wright permitted Gene Lo a statement:
"Court: "Mr. Lo, do you have anything you would like to
add?"
Lo: Yes. I was acquitted of the charge of playing
Blackjack, or 21, in 1989
by Judge Fontana. I was playing with
John Turmel. And when I was
playing at Dave's place, it was
the same set of rules, it
was the same game that I had before.
Being acquitted, I thought
that what I was doing was right.
And I wasn't breaking any
law because the game house had
changed. It was the same
set of rules, the same set of
circumstances. I can be the
bank. I had the same advantages
that the house has and I
was charged again for the same
offence. And this is why
I am here today, to plead my case,
that I shouldn't be charged
again for the same thing that I
was acquitted on.
19. Judge Wright declined jurisdiction in the cases of
Gene Lo and David Booth and
reserved his decision.
20. Defence cited
in support:
R. v. Carrier (1951) 104 C.C.C. p75 Que
K.B.,
R. v. Wright (1965) 45 C.R.38
R. v. Jewitt (1985) 2S.C.R. S.C.C.
R. v. Boross (1984) 12 C.C.C. (3d) p480
Alta C.A.
R. v. Grdic, (1985) 19 C.C.C. (3d) S.C.C.
R. v. Keyowski (1988) 40 C.C.C. (3d) p481
R. v. Rourke (1978) 1 S.C.R. p1021
R. v. Young (1984) 40 C.R. (ed) p289
Connelly v Dir. Public Prosecutions, (1964)
AC1254(H.L.)
Deserted Wives Maintenance Act (1948)
1W.W.R.680 B.C.PolCt.
Montreal v. Rothman Realty (1965) R.L.214,
441C.R.372
21. The Crown argued double jeopardy did not apply because:
a) it was a new
offence at a new time and new place making
the matters different:
b) Judge Fontana
had not dealt with section (a) which was
therefore open to be litigated now;
c) the evidence was different.
22. On Nov. 26,
1993, Provincial Court Judge Peter Wright
ruled:
"Mr. Turmel very emphatically contends that the facts are
the same, however the Court
must decide these issues on the
basis of evidence which is
presented in the absence of
evidence, I find that the
application of Mr. Turmel, although,
perhaps, premature, must
be denied."
23. The motion
to quash the bookmaking charges was also
denied.
24. On Feb 7 1994,
my motion before Judge Wright to quash
the bookmaking charges was put off to
the trial.
25. On Feb 24
1994, the Crown withdrew all three bookmaking
charges but Judge Wright denied Defence
Attorney Matt Sagle's
request for costs to cover the needless
preparation of defence to
those spurious charges. The Crown entered
our joint Statement of
Agreed Facts identically worded to the
19 Agreed Facts in the
1989 Statement of Agreed Facts.
26. On Feb. 25,
after the Crown had presented no evidence of
any changes in the operations of the establishment
which had not
been admitted in both the 1989 and 1994
Statement of Agreed
Facts, Defence again raised the double
jeopardy pleas on the
grounds that the nineteen 1993 Agreed
Facts were indeed congruent
with the nineteen 1989 Agreed Facts which
had resulted in
acquittal and no new interpretation of
law was allowed other than
by the Ontario Court of Appeal. The motion
was dismissed by Judge
Wright who ruled:
"The plea is not founded upon evidence which the court
has before it."(page 73)
27. Then I filed
a notice of motion for relief sought under
the Charter of Rights to remedy violations
of the following
rights:
Section 2: to peaceful assembly
and association;
Section 6: to gain a livelihood;
Section 7: to not suffer double
jeopardy;
Section 8: to not suffer unreasonable
search and seizure;
Section 9: to not be arbitrarily
detained;
Section 11a: to be informed of the specific
offence;
Section 11d: to be presumed innocent;
Section 11h: to not be tried again if
finally acquitted;
Section 12: to not be subjected
to cruel and unusual treatment;
Section 15: to be equal before and
under the law.
The motion was
denied.
28. The Crown
sought to present evidence of the gambling.
Defence objected that the game details
had been admitted in the
Statement of Agreed Facts whose main purpose
was to dispense with
evidence of agreed facts and that more
evidence on the games
would be superfluous. Nevertheless, the
Crown was permitted to
enter the evidence about the admitted
games.
29. The Crown
was permitted to enter detailed forensic
accounting evidence on the amount of the
admitted gambling
winnings and amount of the tab even though
Defence cited the R.
v. James case:
"The question of what is keeping it for gain ought not be
embarrassed by the amount."
30. The Crown
was permitted to enter detailed forensic
accounting of the tab expense house losses
like rent and
refreshments as a proof of gain. Defence
argued they were proof
of loss and their totals were irrelevant.
31. When the Crown
rested its case with no fresh evidence of
any change in the operations which had
been admitted and no
evidence of any vending gains and only
evidence of gambling
winnings and tab losses, the Defence moved
for a directed verdict
of acquittal. There was a history of acquittals
under (a) if
there were no sales and a history of convictions
under (a) only
if there were sales:
R. v. Bampton (1932) 58 C.C.C. p289
R. v. Bertrand (1918) C.C.c. XXXI p2
R. v. Cherry and Long (1924) 42 C.C.C.
p137
R. v. DiPietro (1986) 25 C.C.C. (3e) p100
(S.C.C.)
R. v. Fong (1923) B.C.R. p238 (B.C.)
R. v. Irwin (1982) 1 C.C.C. (3d) p212
(Ont.C.A.)
R. v. James (1903) 7 C.C.C. p196 (Ont.C.A.)
R. v. Karavasilis (1980) 54 C.C.C. (2d)
p530
R. v. Kerim (1963) S.C.R. p125 (S.C.C.)
R. v. Lemaire (1929) C.C.C. LI p137
R. v. Ley (1912) 20 C.C.C. p170 (S.C.A.)
R. v. O'Meara (1915) 25 C.C.C. p16 (Ont.C.A.)
R. v. Pare j(1987) 38 C.C.C. (3e) p97
(S.C.C.)
R. v. Radinsky (1929) C.C.C. LII p131
R. v. Riley (1916) 26 C.C.C. p402 (B.C.C.A.)
R. v. Sala (1907) C.C.C. XIII p198
R. v. Saunders (1900) C.C.C. III p495
R. v. Sullivan (1930) 53 C.C.C. p243
R. v. Tatti (1965) 4 C.C.C. p268 (Ont.C.A.)
R. v. Wong (1922) 40 C.C.C. p311 (B.C.)
R. v. Lefrancois (1981) 63 C.C.C. (2d)
p380 (Que.C.A.) in
particular:
"The notion of gain necessarily implies that the amount
paid to the vendor must exceed
the cost of the items sold."
33. The notion
of winning necessarily does not imply an
amount paid to a vendor. There are no
vendors at the gaming
tables. It necessarily implies a pot awarded
to the winner. All
the cases under (a) dealt with amounts
paid, never amounts won.
34. The Defence
pointed out that when subsection (a) states
"keep for gain to which persons resort
for the purpose of playing
games," it mentions both the act of "gaining"
and the act of
"playing" in very same sentence which
suggests the legislators
intended the distinction between the act
of selling for gain and
the act of playing for win. Defence pointed
out the many clear
historical distinctions between gaining
under (a) and winning
under (b):
(a) versus (b)
Word "gain" is used
Word "play" is used
Gain from the house
Gain from the game
Indirect from game
Direct from game
From commerce
From gambling
By sales
By skill
At the stock room
At the card table
In currency
In chips
Registered at cash register
Registered at chip tray
With GST
Without GST
Due to presence of game
Due to play in game
Independent of game
Dependent of game
35. The last two
distinctions have to do with the words in
section (a): "to which persons resort
for the purpose of playing
games." This indicates that keeping a
place for gain to which
persons do not resort for gambling is
lawful. Such gain is legal
before and after people resort thereto
for the purpose of playing
games and only becomes illegal when persons
arrive to gamble.
Subsection (a) gain has to be coming out
of the house so that the
presence of the gamblers increases that
gain.
36. There is no
case law to show that a professional card-
player's lawful winnings from the game
has ever been prosecuted
as unlawful gain under subsection (a)
as OPP constable Young
admitted on page 107 of the Mar 20, 1995
transcript:
"The argument that was going to be made was gain from the
game rather than from gain
from the extras that were
surrounding the game."
"As Turmel pointed out during the trial, there is no case
law on that."
37. Instead, the
Crown cited Black's Law Dictionary to show
that gain should include winnings. Defence
argued that the
doctrine of strict construction of criminal
statutes required the
court to adopt the interpretation most
favourable to the accused.
Ignoring the historical limits set by
case law to use the maximal
number of definitions in a dictionary
is the anti-thesis of
strict construction of statutes.
38. On Mar 4 1994,
the Crown withdrew the charges against
all my found-ins and no new judgments
on found-in losses were
going to be obtained.
40. On Mar 18
1994, having never pleaded, I again invoked
the special plea of issue estoppel which
prohibits inconsistent
verdicts on the same facts hoping Judge
Wright had seen that
there was no evidence of any change in
the operations given the
1994 Statement of Agreed Facts he was
reading was almost word for
word identical to the 1989 Statement of
Agreed Facts given to
Judge Lennox.
41. I argued that
Judge Fontana's and Lennox's decisions
which had dismissed all five definitions
had to have been
overturned before a brother judge could
be contemplating a
different conclusion on a set of facts
where there was no fresh
evidence of any change.
42. On Mar 23 1994, Judge Wright ruled on page 2:
"I can indicate that on a basic level, I have to agree
with you that the facts are
largely the same in relation to
the game: the rules are as
you described in an earlier date in
court, the structure."
"In my view, for issue estoppel to apply, the Court must
also be satisfied that the
issue is the same or that the issue
is substantially the same.
Here, it would appear to me that
the issue is a fairly narrow
one and that issue is the meaning
of "gain." It would appear
that the issue of gain is not one
which has been addressed,
at least directly, in the previous
cases to which references
have been made. And therefore, I
find the doctrine is not
applicable here."
43. On May 16,
1994, despite no evidence of any change in
the operations of the establishment,(Mar
31, 1995 p123), Judge
Wright convicted me of keeping a common
gaming house under
Section (a) ruling:
"Reference has been made to the decision of my brother
judge, Judge Fontana, in
R. v. Booth which decision I have
read and agreed with. 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)."
"There is no evidence of any indirect gain or income
whatsoever, only from the
business of gambling directly."
"If the charge against Mr. Turmel turns on the meaning of
the word "gain", does gain
include winnings?"
"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."
44. On Mar 10
1995, Tasso Paliovarkas was charged with being
found-in a common gaming house being kept
by Ray Turmel in Hull
and has appointed John Turmel as his prosecutor
agent.
45. On Mar 31,
1995, Justice Wright sentence the Appellant
to 3 years probation with the condition
not to gamble in any
unlicensed establishment after ruling:
"If you're making a living by playing cards at home, then
your home becomes a place
which is kept" for illegal gain.
46. On Sep 8 1995,
the Ontario Court of Appeal, unaware that
formerly lawful gambling winnings were
now to be convicted under
a new interpretation of the word "gain,"
varied that condition
ruling:
"There's no difference gambling in a licensed premises
and gambling in your own
house which he's now prevented from
doing."
"The condition limiting the Appellant to gambling in
licensed establishments will
be deleted and replaced with the
condition that he not participate
in any illegal gambling."
47. On Aug 13
1996, the Ontario Court of Appeal sustained
the Appellant's conviction which is the
subject of this appeal.
PART II: POINTS IN ISSUE
48. A) Judges
Fontana and Lennox's strict interpretation of
section (a) is historically correct and
Judge Wright's novel
expanded interpretation of section (a)
is a usurpation of
Parliamentary prerogative by violating
the doctrine of strict
interpretation of criminal statutes.
49. B) Judge Lennox's
decision to apply Judge Fontana's
ruling on found-in losses and follow the
judgment was correct and
Judge Wright's decision to risk a contradictory
judgment by
trying the same set of facts was a violation
of the doctrines of
autrefois acquit, issue estoppel and res
judicata.
50. C) A fine
and supervised penal servitude are uncalled
for where a former acquittal precludes
criminal intent and where
the conviction results from a novel interpretation
of a criminal
statute.
PART III: STATEMENT OF ARGUMENTS:
A) GAIN
51. Where Judge
Fontana ruled that the premises were "not
kept for gain," Judge Wright ruled that
the premises were "kept
for gain."
52. Where Judge Fontana ruled:
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."(page 16)
53. Where the
Court of Appeal on Sep 8 1995 varied the
condition of my probation so that I could
make my living by
playing cards at home, Justice Labrosse
had stated:
"There's no difference gambling in a licensed premises
and gambling in your own
house which he's now prevented from
doing."
"We're all agreed that the two conditions of probation
are too broad in the circumstances
of this admittedly unique
case. The condition limiting
the Appellant to gambling in
licensed establishments will
be deleted and replace with the
condition that he not participate
in any illegal
gambling."(page 141)
54. Yet, on Mar 20, 1994, Judge Wright stated:
"I have addressed that issue and the application that it
might have even to a home
if kept for the purpose of
gain."(page 156)
"If you're making a living by playing cards at home, then
your home becomes a place
which is kept" for illegal gain.
55. Where Judge
Fontana ruled that Turmel's winnings were
not contemplated by the section, Judge
Wright ruled that Turmel's
winnings were contemplated in the section.
56. Where Judge
Fontana ruled that playing at U-Bank
Blackjack with the option of banking half
the time is 50:50 fair,
Judge Wright has ruled that playing at
U-Bank Blackjack is still
57. Where Judge
Fontana ruled that evidence of a bank edge
when the bank could rotate is irrelevant,
Judge Wright allowed
such evidence to be entered as relevant.
58. Where Judge
Fontana treated Turmel-style Blackjack is
neutral like Poker, Judge Wright has treated
it as not neutral
like Poker. Winnings of $150,000 at Blackjack
were objected to
but winnings of $250,000 at Poker were
not.
59. Where Judge
Fontana ruled that not being able to play
with anyone but the host was "of no consequence"
due to Mutual
Exclusivity, Judge Wright ruled that being
forced to play only
with the host at 50:50 fair game was of
consequence.
60. Where Judge
Fontana treated Indirect gain versus Direct
gain as the significant distinction between
sections (a) and (b),
Judge Wright ruled that Indirect gain
versus Direct gain is not a
significant distinction."
61. Where Judge
Fontana used a strict interpretation of
section (a) to indirect gains from the
house based on a history
of case law, Judge Wright's expanded the
interpretation to direct
gains from game based on a dictionary.
62. The syntax
of the section also includes an indicator
that gaining at commerce was to be held
as different from winning
at the game. the section reads:
"a place kept for gain to which persons resort for the
purpose of playing games."
63. By mentioning
both gain and playing games in the same
sentence, it is submitted that gain is
therefore not a product of
playing games.
64. The Court
of Appeal found that the historical
interpretation was too narrow and allowed
the expansion to the
plain meaning of gain as winnings from
the dictionary.
65. Where Judge Fontana
dispensed evidence of admitted facts
as superfluous, Judge Wright allowed evidence
of admissions to be
entered.
66. Where Judge
Fontana dispensed with accounting of
admitted expenses, Judge Wright
allowed evidence of these
admissions to be entered.
67. Where Judge
Fontana dispensed with "How well found-ins
played" as irrelevant, Judge Wright allowed
evidence of how well
they played to be entered.
68. Where Judge
Fontana had no interest in "How well Turmel
played," Judge Wright allowed evidence
of how well I played.
69. Where Judge
Fontana had ruled that the accounting of
found-ins' losses" was irrelevant, Judge
Wright ruled that the
accounting of Turmel's winnings was relevant
evidence to be
entered.
70. Where Judge
Fontana had no interest in which banks the
found-ins' losses were deposited into,
Judge Wright found that
which banks Turmel's winnings were deposited
to be relevant
evidence.
71. The Court
of Appeal ruled that the magnitude of my
winnings constituted keeping it for gain
despite R. v. James:
"The question of what is keeping it for gain ought not be
embarrassed by the amount."
72. The Court
of Appeal in citing R. v. Di Pietro said that
the business purpose test which had been
applied to the sales of
coffee should also be applied to the winning
of pots. All the
cases cited dealt with sales of refreshments.
73. Repeatedly,
the Court stated that the objective of the
law was is to restrict business of gambling.
Repeatedly, the
Appellant pointed out that the legislators
had not outlawed the
business of gaming like they had outlawed
the business of
betting.
74. At the appeal, Justice Austin noted:
"What you're saying if I understand it is that the first
time around, the Crown objective
was not to demonstrate that
he was running a business.
75. Judge Fontana's
objective was to find out if I was
running a common gaming house, not a business.
76. All of the
evidence had been admitted in the Statement
of Agreed Facts. There were no factual
disputes. Once Judge
Wright had concluded that "there was no
evidence of any change in
the operations," they were the same facts
and new evidence of the
same admitted facts was completely superfluous.
The Crown noted
that the case rested on statutory interpretations
and the
Defendant had admitted all the elements
of the offence. What
possible new evidence of the same facts
can be relevant?
77. Where a judgment
on the same facts from another angle
with no confusing and extraneous accounting
evidence gave Judge
Lennox a binocular perspective, without
such a judgment, Judge
Wright was limited to a monocular perspective.
78. Where Judge
Fontana ruled found-ins had to worry about 5
money flows out of their wallets, Judge
Wright has ruled that
they have to worry about a sixth illegal
flow into mine.
79. With the upcoming
Dec 10, 1996 trial of found-in Tasso
Paliovarkas will be the opportunity to
have the question of
found-in losses determine the question
of whether players of
Turmel-style Blackjack have to worry about
a sixth way of
spending their money.
B) ISSUE (2) DOUBLE JEOPARDY
80. Where Judge
Lennox accepted Judge Fontana's ruling that
none of the 5 gaming house definitions
applied to the same facts,
Judge Wright ruled that one of the 5 definitions
does apply to
the same facts.
81. Where Judge
Lennox ruled that he would not hand down an
inconsistent or contradictory verdict
on the same facts and had
to follow Judge Fontana on all five sections,
Judge Wright has
handed down an inconsistent and contradictory
verdict on the same
relevant 19 facts after ruling that he
ruled that Judge Fontana
had not dealt with the proper interpretation
of section (a) and
he didn't have to follow Fontana on (a).
82. Clearly, Judge
Fontana dealt with all five sections and
the proper interpretation of gain.
83. In R. v Wright
(1965) (1965)3CCC160 affirmed
(1963)1CCC254 on page 338 and 339:
"The doctrine of issue estoppel springs from the
reluctance of the courts
to permit inconsistency of verdicts."
"There is issue estoppel if it appears that the same
point was determined in a
previous criminal trial which is
brought in issue on a second
criminal trial of the same
prisoner. The allegation
of the crown in the subsequent
proceeding must itself be
inconsistent with the acquittal of
the prisoner in the previous
proceeding."
84. In Connelly
v Dir. Public Prosecutions,
[1964]AC1254(H.L.) on page 1259:
"The authorities show that the courts have applied the
doctrine to cases where a
conviction on a second indictment
would be inconsistent with
acquittal on the first."
"As a general rule a judge should stay an indictment when
he is satisfied that the
charges therein are founded on the
same facts as the charges
in a previous indictment or are part
of a series of offences of
the same or a similar character as
the offences charged in the
previous indictment."
85. In R. v Grdic, 19CCC3d(SCC) on page 289:
"The Crown was not allowed to re-try except if there was
fresh evidence... Unless
it can be shown the subsequent
prosecution is an attempt
by Crown to re-try the accused, the
preferable policy is to exclude
issue estoppel.
"If to prove the allegation the Crown is merely tendering
the same evidence as that
tendered previously, then issue
estoppel will survive the
attack because the Crown's
allegation, is in disguise,
but a re-litigation of the issue
as litigated previously,
or, to use the words of De Grey C.J.,
an attempt "to impeach from
within." Indeed, another judge is
invited to reconsider the
same evidence and conclude
differently. This can only
be done through the appeal process
finding reversible error
resulting in the ordering of a new
trial before a different
judge."
86. From the moment
it became obvious that the facts were
the same as in the other two cases, this
court could not have
jurisdiction as the Crown was therefore
"merely tendering the
same evidence as that tendered previously,
in disguise, but a re-
litigation of the issue as litigated previously,
or, to use the
words of De Grey C.J., an attempt
"to impeach from within."
87. Indeed, His
Honour Judge Wright was put in the position
of being invited to reconsider the same
evidence and conclude
differently which can only be done through
the appeal process
finding reversible error in Judge Fontana's
decision and
resulting in the ordering of a new trial
before a different
judge.
88. The Court
of Appeal accepted that there was no double
jeopardy because the offences took place
at different times and
locations;
89. The Court
pointed to all the cases which showed that
autrefois acquit does not apply to a second
criminal act at a
different time and place. The Court cited
R. v. Riddle, an
assault, R. v. Prince, a stabbing, R.
v. Kineapple, manslaughter,
Van Rassel, robbery.
90. The Court
pointed out that the complement of autrefois
acquit, autrefois convict, did not protect
someone formerly
convicted of a criminal act from prosecution
for a new criminal
act and ruled that autrefois acquit and
autrefois convict do not
apply to future offences.
91. I had argued
that there was a difference between an
acquittal or conviction for doing a criminal
act and an acquittal
for being a criminal behavior when that
acquittal has been
obtained on the essential basis of the
existence or non-existence
of a right.
92. I had cited
R. v. Carrier where a pamphlet was alleged
to be seditious at two different times
and places and was judged
to be protected by autrefois acquit.
93. In particular,
I CITED Montreal v. Rothman Realty where
an apartment building had been acquitted
of being an illegal
rooming house. When that apartment building
was charged anew, the
judge ruled that since there was no evidence
of any change in the
operations of the house, the different
date of the second charge
was not relevant and autrefois acquit
applied to an unchanged
house.
94. The Court
of Appeal concluded that Carrier and Rothman
were really more cases of stare decisis
than autrefois acquit,
that the previous acquittals were merely
persuasive and that
Judge Wright was not bound to look at
section (a) in the same way
as Judge Fontana and not bound to acquit.
95. Stare decisis
is the doctrine of following precedent
usually set by higher courts where the
two parties are not the
same and David Booth could have certainly
argued that the Turmel
Keeper acquittal before Judge Lennox was
stare decisis for his
charge of keeping a gaming house.
96. Yet, autrefois
acquit is the plea when the two parties
are the same so that Gene Lo could have
argued that his previous
acquittal as a found-in offered protected
against a subsequent
conviction for the same activity.
97. In my case,
I was acquitted and though my plea of
autrefois acquit may sound like a plea
of stare decisis, it is
actually for not the relief of a verdict
of acquittal but relief
of a dismissal or stay of prosecution.
98. I leave it
to Judge Lachappelle in Montreal v. Rothman
Realty LTD (1965)RL214,41CR372 (QUEMunCt)
to make my case:
"The accused was acquitted of operating a rooming(gaming)
house without a permit on
a certain date. A second prosecution
was commenced before another
judge covering a different date
in a different year and the
accused pleaded autrefois acquit.
There had been no structural
change in the building
(rooming/gaming house) but
the prosecution contended that
since the offence was a continuing
offence it was entitled to
lay the second charge.
Charge should be dismissed. The accused had already been
acquitted of infringing the
by-law and the second prosecution
constituted an unlawful attempt
to revise the judgment
previously rendered without
following the prescribed remedy of
an appeal.]
"The city replies that the complaint being for quite a
different date and year,
the plea autrefois acquit cannot
receive any application since,
for a continuous infringement,
there is a liability to the
penalty for each day during which
the infringement is continued.
At first glance, this argument appears correct. When an
infraction is committed,
each day constitutes a new infraction
and no plea of autrefois
acquit can be entertained when a
different date is alleged
but indeed, the ruling must be
entirely different when an
acquittal has been obtained on the
essential basis of the existence
or non-existence of a right.
If it is true that no permit is required (it is legal),
the date mentioned in any
future complaint is irrelevant and
would render a plea of autrefois
acquit useless and the
Defendant would never know
any peace and could be tried every
day in the year and placed
in jeopardy for the identical
offence whose merit has been
judicially adjudged.
It appears from the above-stated considerations that the
rules laid down for a plea
of autrefois acquit are far from
applying entirely in a case
of infringement of a by-law.
Call it autrefois acquit or res judicata and it would be
illegal and against public
order to attempt to revise the
judgment rendered by one
judge before another judge thus
making an appeal without
following the prescribed remedy set
by law.
Notwithstanding the fact that a judgment which has
finally decided the issue
when the basis of the existence of a
right has been pleaded as
an exception, the City is still
allowed to meet such a plea
by proving that subsequent
modifications have created
a new status preventing the
judgment so alleged from
receiving application.
It was admitted that no structural changes had occurred
since the last judgment and
consequently the court upholds the
plea of autrefois acquit
and the complaint is dismissed.
As to the very merit, the building in question is in fact
an apartment house, not a
rooming house."
99. The ultimate
problem with ignoring the Fontana and
Lennox decisions is demonstrated by cited
by the court:
COURT: "Can we get original 1989 charge?"
CROWN: : No."
100. The court ruled:
"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.
101. The only
reason there is ambiguity is that in skipping
over the Lennox and Fontana decisions,
the transcripts of the
evidence leading to their conclusions
were not presented to the
court of appeal and only the transcript
backing up Judge Wright's
trial had been presented by the Crown.
Only the transcript of the
Fontana trial had expert evidence in the
Mathematics of Gambling
while the transcript of the Wright trial
did not.
102. I think it
is impossible for the decisions of Judges
Lennox and Fontana to have received a
hearing equal to that given
to the decision of Judge Wright.
103. From the Crown's Factum comes the request that:
"Even if the word "gain" is held not to be plainly
applicable to the casino's
profits, a purposive interpretation
of the legislation would
point to the inclusion of such
profits. It is therefore
submitted that it is in the interests
of justice that this Court
examine and decide authoritatively
upon the Appellant's underlying
argument that winnings
directly from gambling are
not gains under s.197(a).
104. It says that
even if the law doesn't prohibit his
winnings, convict him anyway. And even
though the word "gain" is
not applicable to this unique casino's
winnings, the Court of
Appeal did offer a purposive interpretation
of the legislation
which did include such winnings.
C: ISSUE (3) SENTENCE
105. The Appellant
submits that the fine and supervised
penal servitude imposed are uncalled for
where a former acquittal
has precluded any criminal intent and
where the conviction
results from a novel interpretation of
a criminal statute.
D: ORDER REQUESTED:
106. The Appellant
seeks an order overturning the conviction
and staying the prosecution on the grounds
of autrefois acquit,
issue estoppel, res judicata and abuse
of process;
107. Or in the
alternative, the Appellant seeks an order
varying the sentence to time served with
an absolute discharge.
Dated at Ottawa on Oct. 31, 1996.
For the Appellant:
John C. Turmel, B. Eng.,
111-1505 Baseline Rd.,
Ottawa, ON, K2C 3L4,
Tel/Fax: 613-723-2739,
Email johnturmel@yahoo.com
TO:
THE REGISTRAR OF THIS COURT:
AND TO:
Ontario Attorney-General Office:
Ottawa Courthouse,
161 Elgin St. Ottawa, ON,
Tel: 613-239-1200