930721 #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** SHOW CAUSE HELD BEFORE HIS WORSHIP JUSTICE OF THE PEACE R. SCULTHORPE on the 21st day of July, 1993 at Ottawa. ********** CHARGE: S. 201(1) (2 counts), C.C. S. 202(1)(e), C.C. S. 202(1)(c), C.C. ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self CLERK OF COURT: I don't believe he has any counsel. I'll probably have to arraign him. John Turmel, you are charged that between the 25th day of February, 1992 and the 14th day of July, 1993, in the City of Ottawa in the said Region, unlawfully did keep a gaming house, to wit: units 107, 102, 103, 104, 105, 2335 St. Laurent Boulevard in the City of Ottawa and elsewhere in the Province of Ontario, contrary to section 201(1) of the Criminal Code of Canada. You are further charged that between the 25th day of February, 1992 and the 14th day of July, 1993, inclusive, unlawfully did keep a common betting house, to wit: units 107, 102, 103, 104, 105, 2335 St. Laurent Boulevard in the City of Ottawa and elsewhere in the Province of Ontario, contrary to section 201(1) of the Criminal Code of Canada. You are further charged that between the 25th day of February, 1992 and the 14th day of July, 1993, inclusive, unlawfully did engage in the business of occupation of betting, contrary to section 202(1)(e) of the Criminal Code of Canada. You are lastly charged that between the 25th day of February, 1992 and the 14th day of July, 1993, inclusive, unlawfully did control monies for gambling related to the offence of engaging in the business of operation of betting, contrary to section 202(1)(c) of the Criminal Code of Canada. COURT: Mr. Turmel, do you have counsel? TURMEL: No, I don't. I have two law students who are going to be helping me. They are both here in court to witness what's going on. COURT: All right. Mr. Marin, what's going on this morning? MARIN: Yes, Your Honour, the Crown is consenting to the release of the accused on the following conditions I'm submitting to the Court. COURT: Mr. Turmel, the Crown is prepared to release you on a $1,000 cash bail. You are to notify Sergeant R. Cleary of the Ottawa Police 24 hours prior to and in writing of any change in your address. You are to reside at 2918 Baseline Road, Nepean. Not attend at 2335 St. Laurent Boulevard, Ottawa and not attend a common gaming house as defined by the Criminal Code. Do you understand the conditions, sir? TURMEL: Well, not quite. Does that mean I'm not supposed to be caught in another gaming house before my trial? COURT: That's the intent of the condition, I would believe. MARIN: If it could also be amended, Your Honour, not to attend or operate, please. TURMEL: Well, is a poker game considered a gaming house to the Crown? If it is, I'll have to say no, and if poker is okay in my home, then, I'll say yes. COURT: Mr. Marin? MARIN: Well, the term is used as defined in section 197 of the Criminal Code, the common gaming house provision. If I can just refer the Court to section 197, where the game is defined as being a game of chance or mixed chance and skill. Section 197, Your Worship, under the definition common gaming house, the game is defined two definitions lower. COURT: Mr. Turmel, You're going to have to have your student counsel look at section 197(1) of the Criminal Code. If you fall within the parameters of the definitions, then, you'll be in conflict. TURMEL: Well, Your Honour, in 1981, when I was charged similarly, the Crown made a similar request and the Judge said it wouldn't be necessary because I was no threat to society and didn't impose any conditions at all and I'm just - I think these conditions are rather onerous - considering there is no risk of flight. I have a defensive offence set to go. I don't understand what all those conditions are about, especially when there seems to be such a vagueness as to what constitutes a gaming house. Is it fair for them to include words that they barely understand and expect me to live up to them. I consent that if I was convicted of something or charged with something, perhaps, but.... COURT: Well, that's the fact, Mr. Turmel, you are charged. MARIN: Your Worship, it is that I don't want to turn the show cause into a trial court. Perhaps, we could just stand it down. I'll speak to whoever he has to represent him and try to reach some type of agreement, otherwise, we'll run the show cause. COURT: All right. I am not prepared to impose that condition as it stands in any event. It's way too broad as far as I'm concerned. As far as operating a gaming house, that is going to be up to a trial Judge to decide whether Mr. Turmel was or can be released on a minimum of a bond. Do you wish to run a show cause, then? As I said, Mr. Marin, Mr. Turmel, think, is well-known in the area. I do not believe the $1,000 cash is necessary. MARIN: Okay. Thank you. COURT: Mr. Turmel, outside of the other conditions that you not attend at 2335 St. Laurent Boulevard, that you reside at 2918 Baseline Rd., Nepean, that you keep the peace and be of good behavior, and notify Sergeant Cleary, do you have any objections? TURMEL: Just to the 2335 St. Laurent. Guaranteed that I am not going to re-open a casino there and put the employees in jeopardy, so, I see no reason why I shouldn't be able to go, for instance, plan my defence, discuss things, settle with my landlord, move things. I don't find 2335 St. Laurent has any reason for my being excluded from it, unless I were going to start another game, which I will not. COURT: Well, Mr. Turmel, I have no trouble imposing that particular condition. It is the alleged site of the offence. TURMEL: Okay. COURT: You will be released, then, on signing a $1,000 bond. You will appear back in court one week from today, on July 28, 8:30a.m. in Courtroom Number Five. TURMEL: May I, at this stage of the game, be allowed to request an opportunity to have a hearing to present motions to quash the charges before the plea? And may I request that Judge Lennox be seized of such motions, considering he is up on the information already. COURT: That's beyond my parameters, Mr. Turmel. You can talk to your student counsel and... TURMEL: So, next week, it's just the plea? COURT: Yes. To indicate a plea in courtroom #5. In the meantime, you can ask the Crown for disclosure and any other pertinent data that you need. All right. You are free to go. 930806 #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** MOTION TO QUASH FOR INSUFFICIENCY HELD BEFORE THE HONOURABLE JUDGE J.D. NADELLE on August 6, 1993 at Ottawa, Ontario. ********** CHARGE: S. 201(1) CHARGE: S. 201(1) (2 counts), C.C. S. 202(1)(e), C.C. S. 202(1)(c), C.C. ********** APPEARANCES: A. Marin, Esq. Crown Counsel M. Edelson Appearing for Defence NOTICE OF APPLICATION TAKE NOTICE that an application will be made for an Order quashing the Information 1) on the basis that the Applicant has not been reasonably informed of the substantive offence and the acts or conduct which allegedly form the basis of the charges, 2) that the Applicant is unable to make full answer and defence and to know the case he has to meet, and, 3) that the Information has not charged a crime known to the law; and, 4) on the further basis that the Information is defective in substance for the failure of the offences as charged to satisfy the mandatory requirements of s. 581(3) of the Criminal Code of Canada, 5) and because the offences as charged are capable of encompassing a multitude of separate and distinct activities. Michael D. Edelson, AFFIDAVIT OF JOHN TURMEL I, JOHN TURMEL, of the City of Nepean, in the Province of Ontario, OATH AND SAY AS FOLLOWS: 4. That the Landlord, Howard Appotive of the premises at Topaz Plaza, located at 2335 St. Laurent Blvd. in the city of Ottawa indicated to me that I had ten (10) days commencing the 16th day of July, 1993 within which to bring a motion to quash the Information. 5. The premises known as Casino Turmel employ approximately one hundred (100) individuals on a full time basis. 6. The Landlord of the said premises has advised me that if I do not obtain a decision that I must move out of the aforesaid premises. COURT: Mr. Edelson, you've brought a Motion to Quash the Information. EDELSON: Yes, the last count in the four count Information refers to 202(1)(c). If we refer to 202(1)(c), it says: "Every one commits an offence who (c) has under his control any money or other property relating to a transaction that is an offence under this section...". And you'll note, Your Honour, that the further wording says: "related to the offence of engaging in the business or occupation of betting..." Now, because of the wording in the Information, there's no offence known to law. Your Honour will note the wording that has been chosen by the authorities here is that he: "...unlawfully did control monies for gambling related to the offence...". et cetera. "Gambling" is nowhere defined, which is another difficulty we have because nowhere in the Code. We have "gaming". We have "betting", "gaming houses" and "betting houses". We have "bet" defined, but "gambling" is not defined. Working backward through count four, there's no offence known to law in count four and, therefore, it's a nullity ab initio and must be quashed, is not capable of amendment. The first count of the Information refers to, "unlawfully keeping a gaming house", and it is not an offence known to law to keep a gaming house. The offence known to law is the keeping of a common gaming house and that's the only thing that's defined under 197 as a criminal act. This is not an offence known to law and is void ab initio, count one, and, therefore, must be struck down. It cannot be amended, in my respectful submission, given the case law I'll be referring to momentarily. That leaves our focus, Your Honour, on counts two and three, "did keep a common betting house", and three, "did engage in the business or occupation of betting". Now, these counts are deficient under 583. Section 197 is the definition section and under that section, "common betting house means a place that is opened, kept or used for the purpose of..." Your Honour can see already in the opening definition that there are three different modes. It can be opened. It can be kept or it can be used for specific purposes. "(a) Enabling, encouraging or assisting persons who resort thereto to bet between themselves or with the keeper...". So there are, in addition to that, four different modes in which the offence can be committed and then, under subsection (b), which is a disjunctive section: "Enabling any person to receive, record, register, transmit or pay bets or to announce the results of betting". There are, it would appear, six or seven further modes under that subsection. Now, the second related definition is the "common gaming house" definition, because of the absence of the proper definition, we have the five different modes, subsection (a) and the four under subsection (b) under which this particular offence can be committed. It is our submission, Your Honour, that these are, as defined by Wiz, diverse and unrelated modes of committing the offence and that's the key. There are numerous and diverse ways in which the gaming -- common gaming house offence can be committed, as well as the common betting house offence and these are the central points of attack. The law, of course, Your Honour, has changed somewhat in the last 15 years with respect to technical averments as we're all aware. The former 510 is now 583 of the Code, which talks about sufficiency of a particular count and it says that: "No count in an indictment is insufficient by reason of the absence of details where...the count otherwise fulfills the requirements of section 581...". And then, they go on to say that it's not insufficient only because it doesn't name the means by which the alleged offence was committed and that, of course, would be an argument available to the Crown. However, the courts have held that that section does not save an invalid information. It does not, and these are the key words use in case after case, "does not carry the facts from the -- averred in the information from the general to the particular", and that, of course, is the central test that's always applied and is applied in Wiz Developments, does the information in its wording carry the averment from the general to the particular so as the accused knows sufficiently what it is he's being called upon to answer? Section 601, Your Honour, of course, is the next section of relevance to us and that is the section relating to the accused's right to move to quash. It must be done prior to plea where it is alleged there's a defect on the face of the information and it is our submission that that is the section under which we are entitled to move today to have these counts quashed. What I'd like to do, Your Honour, if I may, is, historically, just summarize the development of the law on the issue of quashing informations. There have been several misinterpretations by appellate courts of the central judgment on gaming, the Manitoba Court of Appeal decision in Bingo Enterprises. In Milberg, our Ontario Court of Appeal made a decision which has been taken by other courts, such as the Quebec Court of Appeal in a gaming case, as having overturned Bingo Enterprises. In other words, as having said, "We don't follow Bingo. We don't agree with Bingo". COURT: Well, they didn't overturn it. They just don't agree with it. EDELSON: Exactly. They had no power to overturn it... COURT: Right. EDELSON: ...effectively, but they're saying, "We distinguish Bingo", or, "We don't agree or follow Bingo". And what's interesting, Your Honour, is that's what I thought they said the first time I read Milberg and then, in re-reading it, it became clear to me that that's not at all what the Court of Appeal was saying. You'll recall, Bingo followed Wiz, which had just been decided and dealt with the issue of not only the sufficiency of the information, but on the issue of the ability under what was then 732, as I recall, to amend an information when it was viewed as being insufficient. Now, in Bingo, the charge is virtually on all fours to our count number one, assuming the common gaming house averment was there. If Your Honour looks at page 292, it says: "On the 18th of March, 1982, did unlawfully keep a common gaming house contrary to the provisions of the statute in such case made and provided." Your Honour will note at the top portion of 292 in the head-note, Wiz is referred to and applied by the Manitoba Court of Appeal and they point out common gaming house as having several separate and distinct activities included in the definition. They simply recite what is now 197 that I've just recited to you. It goes on to say: "The accused says that although the charge follows the wording of 185(1), it fails to identify what aspect of their conduct over the nine months or 15 days is alleged to be criminal." The court goes to Wiz Developments and says: "It is determinative of the appeal. The charge does not meet the mandatory requirements of 510(3) of the Code and is, therefore, ab initio vitiated." Quoting from Mr. Justice Lamer, as he then was, the court said: "The statute under which the information at bar has been laid casts a broad net and the prohibition is directed at many diverse and unrelated uses of aircraft in Canada." Now, this definition, "diverse and unrelated uses", is the foundation of an application of this sort. The court at the bottom, Your Honour, second last paragraph about the fourth line up talks about Wiz and says: "The circumstances in this appeal are analogous. In both cases, the charges in the Information are words of the enactments that describe the offences. The Aeronautic Act defines the operation of a commercial air service...". And then, they go on: "The Criminal Code defines a common gaming house to include a number of separate and distinct activities. In neither case, do the charges describe the offences in such a way as to lift them from the general to the particular." Second last line: "particulars have never been considered as a proper mean to cure vitiated informations for defects of substance...". I'd like to go directly to Milberg, Your Honour, if I may, while we have those words fresh from Bingo. It's the only reference in the case to Milberg and, again, I must say I read this wrongly the first time. This is the first paragraph: "We are obliged to note our respectful disagreement with the opinion of the Manitoba Court of Appeal, R. v. Bingo Enterprises Ltd.". Now, when you read that, I said, "Well, they're not going to follow Bingo", but, then, I read on. It says: "...that Wiz Developments overruled R. v. Griss and Gruber." Now, pausing there for a moment, they don't say, "We disagree with the principle of Bingo". They say, "We disagree with that portion of the judgment in Bingo where they say Wiz overruled Griss." Griss and Gruber was a betting house case in which the court said that book-making was, like prostitution, basically one and not several diverse activites and shouldn't be specified. And yet, in 1987, the Manitoba Court in Wilson in a betting house case specifically over- ruled Griss and is now cited right in the Criminal Code for the required sufficiency of gaming and betting houses. Of course, Milberg is also cited for the not-required sufficiency of bawdy-houses. It was certainly made very clear. A judge would have to be pretty French to still think the bawdy-house ruling over-ruled the gaming house ruling when they actually disagreed with a betting house ruling. That's all I'm saying in this judgment. Now, this, unfortunately has been misread because the Quebec Court of Appeal in Billon-Rey and the Crown jumps on the bandwagon and says that the same thing applies. In other words, the Ontario Court of Appeal has chosen not to follow Bingo. But, of course, that's not what they say. "We disagree with the interpretation of Bingo where they say Wiz overrules Griss." That's all they say. They never say, on the issue of gaming, that Bingo doesn't apply. COURT: If that is correct, then, am I not still bound by Griss and Gruber? EDELSON: My view is no because they refer to different offences. COURT: Griss and Gruber was betting house, almost identical. EDELSON: Not gaming, though. Milberg says it's every one who keeps a common bawdy house. It has nothing to do with gaming whatsoever and I'm going to come back to a judgment by Judge Fontana of this court where he also is called upon to quash a similar information and, in my view misinterprets the Milberg reading of Bingo, but he makes a distinction himself in any event between being a found-in, because of the very narrow definition of what it is to be a found-in and the issue of gaming and when one looks at Milberg, we have to look at what the charge was. It's keeping a common bawdy house and court says: "Many offences are capable of being committed in more ways than one. the charge of keeping a common bawdy house is not of that nature. While the offence may be perpetrated a number of different ways, it cannot be said to be diverse or unrelated and that it is not necessary to refer in the information the particular part of the definition of the offence it is intended to be invoked at trial." And, of course, Bingo does refer to the gaming section, not the bawdy house section. The court in Milberg says bawdy house. It's very simple. It's either acts of prostitution or indecency. That is one averment. It's all related and that's all there is to it. However, gaming is different and as the Court of Appeal of Manitoba said in Bingo, is more analogous to the situation in Wiz, dealing with the Aeronautics legislation, than this. Milberg simply says that they disagree with the interpretation of Bingo Enterprises, that Wiz Developments overruled Griss and Gruber, that's all they're referring to. They're not saying, Bingo doesn't apply in circumstances of this sort. They're not disagreeing with Bingo per se. They're simply disagreeing with one statement made earlier in the Bingo judgment. Now, the other case which I feel duty bound to bring to your attention is Billion-Rey at the Quebec Court of Appeal because it is a case of a common gaming house. The wording would be exactly -- virtually exactly the same as our Information. What's interesting, of course, is that they misinterpret, again, what the Court of Appeal did in Milberg. It says: "Three years later, the Ontario Court of Appeal was called upon to rule on exactly the same circumstances as those in the present case on an exactly identical indictment." is where the Quebec Court of Appeal falls into error. It wasn't the same indictment. It was a totally different charge with totally different elements and it did not have the unrelated and diverse elements as referred to in the Supreme Court of Canada. So, in my submission, one, again, has to carefully delineate what was the information in each charge that was before the particular court. The court says: "In Milberg, the Ontario Court of Appeal, taking a different position from that taken in the 1984 judgment by the Manitoba Court of Appeal, concluded the indictment as drafted was valid." And all the court does is they quote part of Milberg and at the end says: "I completely share this point of view". But having fallen into the error at the beginning of saying that they were called upon to rule on exactly the same circumstances as those in the present case and on exactly the identical indictment, of course, it's no surprise that they fall into error because Milberg and Bingo are totally different. Milberg does not, for our purposes in terms of stare decisis, overrule Bingo and it doesn't bind this court on gaming charges. The argument is that Bingo is the only one of the appeals which properly is before this court on the issue of gaming, is properly decided on the issue of gaming and is a case which I urge Your Honour to find favor in. Milberg does not overrule it for the purposes of Ontario in binding this court because it's on a totally different issue that a Quebec Court of Appeal, then, falls in the same error by suggesting that Milberg was about the same facts, same indictment when, of course, it's totally different, totally different offence and totally different elements comprising the offence. If Your Honour finds that you are not attracted to the argument I make distinguishing Milberg and Bingo and Billion-Rey, and Wiz, it's over in reference to the counts one and two. It's potentially over. Now, a quote from Ryan, the Ontario Court of Appeal, which dealt with the precise location of an impaired driving: "The Court of Appeal reasoned that the rationale of Wiz was based not on the failure to set out the time or location of the offence, but rather on the failure to identify the particular act which was alleged to have constituted the offence". Now, in Douglas, they say: "In our opinion, the kind of information that will be necessary to satisfy this test will vary depending on the nature of the offence charged. What particularity will be needed with respect to a given charge will "depend on the circumstances. From these cases, it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable information with respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence. Whether an indictment is sufficient will depend on the offence charged and the facts of the case." Our interest is the acts involved and the nature of the offence and it's only when you look at those very specific items can you make a determination whether 601 should apply to the quashing of the Information before you and my argument is that Milberg has no application to gaming house because it's a different offence and Bingo does apply and for that reason. The two offences should be quashed in any event. Now, there was a subsequent judgment, Your Honour, in the Manitoba Queens Bench, R. v. Wilson, and that was also a similar case where Bingo was, of course followed in the Manitoba courts. Our research did not turn up any other case directly on point dealing with the quashing of a gaming house information, whether for or against. What we did turn up was a judgment, as I said to you at the start, of Judge Fontana of this court and I'd like to provide you with a copy in R. v. Booth, Lo, Michael Mahfouz and Tasso Paliovarkas. COURT: That's not the one in tab 15. EDELSON: It is, but it's not the right portion. This is the portion where they sought to quash the information. The portion you have is the acquittal portion. This is the part, Your Honour, and I thought you should be aware of it for several reasons, where, at the beginning, it was Mr. Grace and Mr. Sagle appearing for the accused and the motion you'll see at page 2, Mr. Sagle says: "Before arraignment and plea, I have a motion under 601 objecting to the Information. I'm objecting the charge based on the fact that it's too vague under 510(3)." Your Honour, it's important to keep in mind this distinction, was found-in in a common gaming house as opposed to keeper of a common gaming house and we have all of these gentlemen here as found-ins. COURT: He argued Bingo and Wilson as well. EDELSON: In the course of argument, Bingo came up, Milberg came up, all of the cases were referred to. Now, this is Miss Cote, and listen to what she says in raising Milberg which, again, superficially is the Crown's strongest suit here: "The Court of Appeal proposed in those days, Justice Cory, as he then was, Robins and Finlayson states: "We are obliged to note our respectful disagreements with the opinion of the Manitoba Court of Appeal in Bingo Enterprises Ltd.". stops there. That's, of course, not what the sentence says as I've read it to you. It goes on to say that Wis didn't overrule, et cetera. So she presents to Judge Fontana the notion that our Court of Appeal, which she apparently does from reading from the decisions in quotations, not only disagreed with, but effectively said that the Manitoba Court of Appeal judgment in Bingo Enterprises is not to be followed. Now, I'm sure that was inadvertent and I can see how she made the mistake, but, clearly, she was wrong in that direct quotation because she reads only half the sentence. Now, what's interesting is Judge Fontana, unfortunately, has not seen the cases at this point. He says: "Mr. Sagle, what am I to do with the expressed rejection of Bingo Enterprises case in the Ontario Court of Appeal?". Well, of course, now, he's fallen into the trap because it's not a rejection of Bingo. Well, Mr. Sagle says: "Actually, if I'm not mistaken, I don't think it refers to Bingo." The court says: "Well, at the bottom of page 7...". So he clearly has been handed the case. Mr. Sagle says: "It doesn't actually overrule Bingo. It says it disagrees with that opinion, overruled an earlier case. And Mr. Sagle's back on the issue again. He's clearly reading the sentence as it should be read. Then, there's some discussion about this passage. There seems to be great confusion between not only counsel but the court as to what really happens in Bingo and Milberg: SAGLE: "There is a principle from Bingo that they seem to disagree with. It could take a little while to figure this out, but it doesn't seem to be saying that Bingo would be overruled if it was in Ontario. It just seems to say that part of what was mentioned in Bingo, that the principle that seemed to come out of it and the ratio, perhaps, was stretching too far. It doesn't really overrule Bingo, at least my first reading of it." And His Honour leaves and he comes back and this is where, in my submission, His Honour does make a very important and significant distinction, while at the same time not properly reading Milberg: "I want to point out that the charges have to do with being found, which is the operative word, in count one in a gaming house, count number two in a betting house. This, in my opinion, is significant for this reason: When one compresses that with the old section 185(1) of the code, which is keeping a gaming house or a betting house, one can see in 85(1) the gravamen of the offence is the keeping of the house in question, that is carrying out the operation. Clearly, where 185(1) is charged and is directed at the operator, as it were, it, no doubt, would be highly significant to the accused to knowing what manner of all of those set out by counsel in argument he's alleged to have been keeping the house. Section 185(2), however, that is, the found-in section, presents as the gravamen of the offence merely the act of being found in the place without lawful excuse. The thrust of the charge is not directed toward how the operation is carried because they are not charged with that. They are merely charged with being found in the place where some activity is going on and in my opinion, the use of those words in 185(2) is merely descriptive of the premises and need not go further. I believe the distinction is a valid distinction and I repeat, the gravamen of the offence in 185(2) is being found in the place without lawful excuse." So what I say, Your Honour, is he draws that key distinction. His Honour sees the difference between being a found-in and being a keeper is a key and His Honour says, I say inferentially and implicitly, that had it been different, in other words,had it been keeper, that he might well have quashed the information because he's saying at that point, it would be important to know how the operation is carried out, but, he says, in this case, they're not charged with that. He said: "I believe the distinction is a valid one. I have read the decisions in Bingo and Wilson. I've had a quick look again at Wiz and a very broad, all encompassing decision again at Harvey Milberg et al." He goes on to talk about the binding authority of the Court of Appeal. He says: "I'm bound my Milberg and the statements there of Mr. Justice Robins with respect to his own respectful disagreement with Bingo Enterprises in the Manitoba Court of Appeal, in fact, amount to a rejection of that decision and it is a rejection by which I am bound." I submit to Your Honour, with the greatest of respect to Judge Fontana, he fell into the same trap or error as the Quebec Court of Appeal in its reading of the wording of Milberg. So I thought Your Honour should be aware of that. On the one hand, His Honour does distinguish between "keeper" and "found-in" and that's an important distinguishing feature and he effectively, I say inferentially, decides that he would've decided the case different and quashed the information if it had been gaming and on the other hand, he says that Milberg binds him as having rejected Bingo and, of course, in my submission to you, the clear wording of Milberg, when read fully, is quite the opposite. Now, Your Honour -- and I'd like to come back, finally, Your Honour, to deal with Griss because Your Honour asked me, "Am I not still bound by Griss, then, given the wording in Milberg?". You may well be, except that it's not relevant to our consideration because what is being determined in Griss one sees is something quite different. Here, the defendant was charged with keeping a common betting house, and the court was called upon to deal with that particular information on the issue of sufficiency. I say to Your Honour that when we analyze it in this way and we must, always keeping our eye on the target, the target being what is the offence alleged? What are the acts alleged in the information? That when we analyze it in this way, distinguishing where we must offences and acts which have no application, that one can see very clearly that on all of the prevailing case law and interpretations of it, that the counts one and two must be struck down. That count four is not offence known to law and similarly, count three is defective in the same way. In my submission to Your Honour, that results in the quashing of the Information before you. If there's any way you're troubled by any of these cases and the rationale and how they interface, I'd be happy to try and answer any of those questions, Your Honour, but it seems to me it will ultimately be your interpretation of whether these S.C.C. judgments, in fact, fall into place as I have analyzed them and whether Bingo, it remains standing at the end of all of this analysis. If it does, in my submission, they must be struck down. If it doesn't in your analysis, you don't, except perhaps count four, which, on other grounds, may be well be struck down. Thank you, Your Honour. COURT: Crown? DANDYK: Yes, Your Honour. However one interprets Milberg, either as binding authority or persuasive authority, it does clearly address the issues before this court in ways as referred to and the wording according to the Code section, be it common bawdy house, common gaming house or common betting house is found to be sufficient. That's the kind of wording we have before us and it is a question of semantics to suggest suddenly when one reads it closely, on the wording itself in count one, in the Crown's investigation of "unlawfully keep a gaming house", we have a typographical error where common gaming house -- in fact, "common" was not added. I would be asking for that amendment, to simply add that word. Now, it is clear that the crux of counsel's argument relates to Milberg and Bingo and it's important to note that while Milberg is a common bawdy house charge, that any reference to Griss and Gruber and ultimately, the ultimate conclusion, then is effective a strong obiter as opposed to ratio. In any case, the entire argument is an issue of semantics. Whether Billon-Rey, the Quebec Court of Appeal, misinterprets that finding or not, they similarly found a similar wording to be sufficient and they have no trouble with the various definitions provided and it's important to note that, in respect of common bawdy house, there is as well an (a) and (b) definition provided under 197 and it should be noted Judge Fontana was questioned in his decision on the quash. I note at page 16 that what is specifically stated is that he finds that Milberg does amount to a rejection of Bingo, which for some obscure reason, maybe I'm putting to much in the words "amount to a rejection", but it may well be that he read it as he saw it and in this Crown's respectful submission, that's exactly what it is. That when one looks at Milberg's reliance on Griss and Gruber as the basis for the entire argument, that does amount to a rejection and when one may quibble whether it's obiter or ratio, it is the crux of the entire decision and, therefore, it does amount to a rejection and it is, as noted in Milberg, significant to note that leave to appeal to the Supreme Court of Canada in Milberg was refused, that then being, effectively, at least persuasively if not precedent value, the highest decision in the land. In passing, it becomes significant to note that the Frenette decision from the Quebec Superior Court which related to an application to force the lower court judge to provide particulars, notes that an application to quash the wording that is virtually the same as this was rejected by that court. Both by reference to Griss and Gruber and to the entire rationale in Milberg, it's the Crown's respectful submission that our Court of Appeal is of the view that the general wording from the section is adequate. And then, the court goes on to discuss Griss and Gruber and although one distinguishes between keeping a common betting house or keeping a common gaming house, in fact then, in Milberg, keeping a common bawdy house - at least the Ontario Court of Appeal in Milberg clearly does not distinguish between them. The crux of counsel's argument is that, in fact, this offence can effectively be committed in a number of ways. What is clear in Milberg, though, is that the court finds that general wording is sufficient and adequate to cover that and ultimately finds common bawdy house and by referring to and approving of Griss and Gruber that being sufficient. That's defence's argument. The entire argument within Milberg is right on point and to suggest that while technically they disagree with Bingo only insofar as to the point whether Wiz is over-ruled or not is to read it much to simply. One reads it entirely and they clearly approve of that general rule and that does address the issue of sufficiency and that is the approach to be taken by this court, whether it views it as binding or whether it views it as persuasive. To bolster Milberg, Dandyk brought up Regina and R.I.C., a sexual assault case; R. v. Doug Dale, a charge of gross; R. v Cook, another sexual assault; R. v. Moore, a possession of stolen property; G.B.A.B and C.S. versus The Queen, sexual assault. I found it funny that he had to use all those sex cases to back up his bawdy-house precedent for gaming house sufficiency, Because all the We are, therefore, left with the charges before this court and I have already indicated to this court it is the Crown's respectful submission that Milberg is appropriate. The Quebec Court of Appeal case in Billion-Rey is appropriate. That they are, at the very least, persuasive, if not binding on this Court. I note in passing that counsel took, I suppose, considerable solace in Judge Fontana's differentiating between a "found-in" or a "keeper" and as to the logic of that argument, I see some concern because if I were the found-in and I had, I suppose, argument to be made as to which definition there's sufficient information to be precluded from making that argument because I'm a found-in and not a keeper doesn't seem, at least in the Crown's respectful submission, assuming defence's argument applies, an appropriate distinction. I don't think it changes Milberg and I'm suggesting that Milberg is applicable, but it doesn't seem an appropriate distinction for that reason. It is the Crown's respectful submission that Milberg is applicable. Count two, of course, in the Crown's respectful submission needs no amendment for the same reasons. It is, in fact, sufficient. Count three, in the Crown's respectful submission, again, is sufficient. We, in fact, have clear, careful detail provided and, in fact, the wording specified under 202(11(e) and we, in fact, have further specification as, "to engage in the business or occupation of betting", one of the portions of that and I'm suggesting that is sufficient detail. Count four. Counsel has criticized or questioned whether "gambling" is an appropriate word within that section. He's suggesting it doesn't exist within that section. I note under (9) the word "gambling" is used and under (b) the word "gambling" is used. In fact, under (b), the word "gambling" or "betting" is used. They are, effectively, interchangeable. If any meaning is to be given to the difference, referring to the dictionary definition, one could change that to the word "betting" and it wouldn't substantively change the offence and that, again, is more semantic. I'm suggesting it is sufficient. Subject to any questions, those are my submissions. COURT: Do you wish to make a brief reply? EDELSON: Yes. My friend keeps repeating, Your Honour, Griss, Griss, Griss and Gruber. I don't see any specific reference to distinguish the comments I made already. I also simply make one further reference that I neglected to point your attention to, Your Honour, the top of 190 of Griss where they said: "In our view, this does not mean merely classifying or characterizing the offence. It calls for the necessity of specifying time, place and matter of stating the facts alleged to constitute the indictable offence." And then, the last sentence of the next paragraph: "There must be in words sufficient to give the accused notice of the offence with which he is charged." That, of course, has now changed. No matter how we look at it, in my submission, my friend valiantly, I think, tries to distinguish Wiz and say that Bingo would have no application, but Wiz, of course, says very specifically where there are diverse and unrelated acts that must call for very specific details in the information or indictment and similarly, as the court says in Wiz, they can't be resolved by particulars. My friend makes mention of disclosure, of particulars, et cetera. The Supreme Court of canada said very clearly that that does not resolve an information or count in an information that's void ab initio and that's my position. If Your Honour takes a different position that it's not void but merely lacking in particulars, I move under 5861l)(f) that Your Honour order particulars in each count, if you uphold the validity of the counts themselves, as to the mode in which it's alleged by the Crown that these offences have been committed. As I pointed out, there's up to ten variants in the various sections, some of which are totally unrelated in my submission. COURT: We'll recess for now. RECESS RESUMING: - - - - - - COURT: The accused is charged with four offences. Defence counsel has brought a Motion to Quash all charges in the Information. Section 581(1) states: "Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified." Subsection (2) states: "The statement referred to in subsection 11) may be (a) in popular language without technical averments or allegations of matters that are not essential to be proved; (b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or (c) in words that are sufficient to give the accused notice of the offence with which he is charged." Subsection (3) states: "A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count." Section 583 sets out certain grounds that will not make an indictment insufficient. Defence counsel has relied on R. and Bingo Enterprises Ltd. et al 41 C.R. (3d) 291, a decision of the Manitoba Court of Appeal and to a lesser extent, R. and Wilson 26 C.R. (3d) 8, also a decision of the Manitoba Court of Appeal. In the two aforementioned cases, the Manitoba Court of Appeal quashed charges virtually identical to counts one and two in the Turmel indictment. In Wilson the court upheld the validity of a charge virtually identical to count number three in the Turmel indictment. With respect to counts three and four in the matter before me, I have found no precedents nor have I been persuaded by counsel's argument that they are in any way deficient in law. Count four may lack precision in wording, but this is not fatal to the count and the Wilson case specifically holds that count number three should not be quashed. The defence motions as it applies to count three and four is dismissed. Count one and two, that is, the keeping of a Common gaming house and the keeping of a common betting house, have been the subject of judicial interpretation. As I have previously indicated, the Manitoba Court of Appeal has held that charges worded almost identically to counts one and two should be quashed. In Ontario, the law with respect to these counts is governed, in my view, by R. and Milberg, 35 C.C.C. (3d) 45, a decision of the Ontario Court of Appeal. Leave to appeal this decision to the Supreme Court of Canada was refused on June 23rd, 1987. The Milberg case declined to follow the Bingo Enterprises case and instead followed their previous decision in R. and Griss and Gruber [1936] 67 C.C.C. 184. The Milberg and Griss and Gruber cases held that informations similar to counts one and two in the Turmel Information did fulfill the requirements of the Criminal Code and should not be quashed. The Milberg case dealt with keeping a common bawdy house, while the Griss and Gruber case dealt with a keeping of a common betting house. Robins, Justice in Appeal for the court in Milberg stated: "The charge of keeping a common bawdy house framed in the form in issue has long been employed in prosecutions under s.193 and its predecessor sections. This indeed is the suggested form of charge specified in the Appendix of Forms in Martin's Criminal Code at page 1041. In our opinion, this form of charge has not been affected by the Wiz decision, although its sufficiency has not previously been the subject of judicial determination, comparable provisions of the code have been. For example, in R. and Griss and Gruber [1936] 67 C.C.C. 184, this court dealt with an information charging the offence of keeping a common betting house in the words of the section creating the offence. The information was attacked on the ground that it failed to disclose the offence for which it was taken. The offence of keeping a common betting house like that of keeping a common bawdy house can, by definition, also be committed in a variety of ways. In upholding the information, Middleton, Justice in Appeal on behalf of the court, said at pages 190 and 191: "Here the offence is charged in the precise words of s.229, which create the indictable offence, the keeping of a disorderly house, to wit, a gaming or betting house. The place of the offence is given with circumstantial detail and also the time of the offence. This, I think, permitted by the precise provisions of the section of the code referred to, sections 225 and 227 are merely definitions. Statements of facts and circumstances which constitute the thing done as being a disorderly house, a common betting house and in my view, it is not necessary that statutory interpretation of the terms used in defining a crime should be themselves set out in the indictment."" His Lordship went on to state at page 191: "In other words, the definition sections, 225, 226 and 227, merely constitute a dictionary and fixes a meaning to the terms used when the crime is defined. The form given for making a charge of murder is that the accused, on a certain date at a certain place, did murder the named individual. The definition of murder is found in sections 259 and 260. It has never of recent years been thought to be necessary to refer to the particular definition of that serious crime which is intended to be invoked at the trial." These observations apply with equal force to the Information in the present case in which the offence was similarly charged in the words of the section of the Code creating the indictable offence of keeping a common bawdy house. See also R. and France, R. and Wong Guy, R. and Longpie. It is manifest that many offences are capable of being committed in more ways than one under the provisions of the Code. That fact does not of itself render invalid a charge framed in the words declaring the matter charged to be an offence, so long as the alleged offence is set out in the information and sufficient detail is given to identify the transaction or the subject of the charge, the charge will satisfy the requirements of s.510(3). The Crown is entitled to rely on any part or parts of the statutory definition that prove applicable to the facts established by the evidence. If, however, the language used to describe the alleged offence is capable of covering diverse and unrelated acts, the charge will fall within the principles enunciated in the Wiz decision and be vitiated for want of sufficient detail as required by s.510(3), but that is not this case. The charge here is easily understood and conceptually uncomplicated. While it may be perpetrated in a number of different ways, they cannot be said to be diverse or unrelated and it is not necessary to refer to the particular part of the definition of the offence that is intended to be invoked at trial. Robins, Justice in Appeal, goes on to state at page 50: "We are obliged to note our respectful disagreement with the opinion of the Manitoba Court of Appeal in R. and Bingo Enterprises that Wiz Developments over-ruled R. and Griss and Gruber, supra, and the line of authority to which the court referred at page 265 of its judgment. We do not read the Wiz decision as having this effect nor we respectfully add do we read Wiz as casting any doubt on the earlier Supreme Court of Canada decision in R. and MacKenzie, supra. In this latter regard, we agree with the Saskatchewan Court of Appeal in Fisher and The Queen [1985] 45 C.R. 13d) 191, that R. and MacKenzie, supra, has not been overruled by Wiz." And the Quebec Court of Appeal in R. and Billon-Rey et al [1990] 57 C.C.C. (3d) 223 in a keeping a common gaming house charge held that informations almost identical to counts one and two of the Turmel Information were valid and should not have been quashed by the trial judge. The Quebec Court of Appeal followed the Ontario Court of Appeal decision in Milberg and declined to follow the Manitoba Court of Appeal in Bingo Enterprises case. Since we are in Ontario and I, as a trial judge, am bound to follow the Ontario Court of Appeal decisions in this case, R. and Milberg and R. and Griss and Gruber. That being so, counts one and two of the Turmel Information are proper and valid. The Motion to Quash is dismissed. EDELSON: Now, Your Honour, on the supplemental application for particulars.... COURT: Counsel, I'm not going to embark on a particulars motion now at this time. I've been sitting since nine o'clock and it'll probably be opposed by the Crown and I'm not going to embark on it now. EDELSON: No, I understand we're not going to argue it, Your Honour, and I'm not going to prevail on you to hear argument. I just want to make the position that I've made earlier. My friend has talked about ten boxes of material or whatever. My only concern is that if we're stuck to bring particulars applications under 586 at the trial and we only get particulars then, Your Honour can imagine what difficulty that will create for the defence and I want the record to reflect very clearly my position at this earliest opportunity that we were seeking particulars. Your Honour does talk about imprecision in the wording and I think that's obviously a valid and apt comment. My position is, Your Honour, that imprecision results in Mr. Turmel being unable to make full answer and defence and I'd like my friend to be aware of that early on. COURT: Now, I would suggest you get together and see if you can work it out without judicial intervention. If you can't, there's nothing preventing you from bringing a motion similar to the one you just did. EDELSON: I know. Your Honour's not seized of it and that's... COURT: No. EDELSON: ...quite acceptable to me. DANDYK: If it assists, I'm of the view, at least in respect of counts one and two, that particulars, at least on a cursory view, are likely -- I will speak to Mr. Marin on the file. Subject to disclosure and so on, I expect that these issues may be resolved without judicial intervention. COURT: Well, I hope they can be and if they can't, well, we'll be back in court again. EDELSON: Your Honour, the only other comment I make is that tentatively, we have fixed a trial date of August the 12th. Now, Mr. Marin had written a letter saying that Detective Cleary's away on holiday and he is away on holiday. DANDYK: As I understand it, no formal date was set on the 12th. Counsel cleared himself for the 12th. Neither the Crown nor the police were canvassed, so I can clearly indicate that was not with the consent of the Crown or the officers and I can indicate neither the investigator nor Mr. Marin are present and it will not be trial ready by that date in any case. COURT: What are counsel seeking? EDELSON: Well, I suggest it simply go to the 12th as it's fixed now, but in number five to fix a date. The Crown has had 17 months and the police have had 17 months to organize the prosecution of this matter. DANDYK: I don't believe I can. I was told the preliminary package will only be available in some three weeks. COURT: The matter is adjourned to August 12th, 8:30, court five, to set a date for your trial. TURMEL: Well, we have a date for the trial right now and a hundred people are going to be seriously inconvenienced so this officer can go on holiday and I just think that's terrible. I mean, we have an early date. Everybody's been counting on it. Everybody has been hungry and all of a sudden, the Crown wants to have extra time. We just come to pick a date. I think that's unacceptable. We had a date promised to us and it's just -- I mean, the mere fact we're going to trial on three book-making charges, I think, is going to put the court in disrepute. So we can't have our trial. 0.K. When? COURT: Just close the court. COURT ADJOURNED ********** 930812 ONTARIO COURT OF JUSTICE (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL *********** ADJOURNMENT HEARD BEFORE HIS WORSHIP JUSTICE OF THE PEACE R. SCULTHORPE on the 12th day of August, 1993 at OTTAWA *********** Charges: S.201(1), C.C. - Two counts S.202(1)(c), C.C. S.202(1)(e), C.C. *********** APPEARANCES: Mr. J. Langevin Counsel for the Crown Ms. C. D'Angelo Counsel for the Defendant Courtrom Number Five August 12, 1993 D'ANGELO: I'd ask that Mr. Edelson's name be removed from the record at this time. COURT: All right. We'll remove Mr. Edelson's name. Would you page Mr. Turmel in? COURT: Mr. Turmel, I understand that this will be a rather lengthy trial and that a Pre-Trial is in order. I've been given a date of September 20th, Courtroom Number Seven, as the date for the Pre-Trial. TURMEL: Before you do that, though, before I'm called on to plead further, I do wish to - pursuant to section 606, plead autrefois acquit, which is a question of pure law and I have my paperwork ready. Could I be sent off to a Judge? COURT: Mr. Turmel, that has to be done in another forum. You may be able to do it on September the 20th in Number Seven Courtroom before Judge Lennox. TURMEL: Well, I want to do this before I plead because the Code says so and that's why I would like to be sent off to a Judge, if possible. COURT: That's correct. You are not going to be going for a plea on September 20th. It is a Pre-Trial. That will be your discovery if you want, or your disclosure, and you can make the motion that you want to make at that time. You are not being put over for any type of plea on September 27th at 2p.m. in Number Seven Courtroom. All right. You can make your motion at that time. 930901 ONTARIO COURT OF JUSTICE (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL *********** PROCEEDINGS HEARD BEFORE HIS HONOUR JUDGE J.M. BORDELEAU on the 1st day of September, 1993 at OTTAWA *********** Charges: S.201(1), C.C. - Two counts S.202(1)(c), C.C. S.202(1)(e), C.C. *********** APPEARANCES: Mr. A. Marin Counsel for the Crown Ms. J. Turmel Counsel for the Defendant Courtroom Number Seven September 1, 1993 TURMEL: Your Honour, this is a series of four requests and one is to dismiss the charges of gaming house and betting house on the grounds of autrefois acquit. The other is to dismiss the charges of betting house - control of monies from betting and business of betting on the grounds that they fail to state an essential element. Another one is, in the alternative, to argue the special plea of issue estoppel to quash all the charges, to prevent a contradictory judgment, and, finally, possibly, an order staying the charges on the grounds of prosecutorial abuse of process which offends the community sense of fair play. COURT: All right. Didn't all these matters come up before Judge Nadelle some while ago? TURMEL: No, they did not. COURT: Why didn't they? TURMEL: Because the lawyer at the time didn't think the plea of autrefois acquit was applicable until the trial and since then, I've found some recent case law to argue that it is allowable before the trial. COURT: All right. I am going to put all of these matters, Mr. Turmel, over to the trial date that we'll fix and you can argue all of this before one Judge, otherwise, we'll just have a succession of motions. TURMEL: Oh, yeah, but, see, there is no evidence to be adduced here. Strictly the two the Informations to show they're identical and that's how the autrefois acquit plea is argued. Now, there is an injustice here due to the delay. COURT: All right. We'll set dates that you can argue these all in great detail. This is a "plea-of-guilty" court. Really, this is not the forum in which I can start entertaining lengthy motions, particularly, as you have four and particularly, as well, as you were given a previous opportunity to present motions in respect of this matter before Judge Nadelle and you have chosen, for whatever reason, to not bring all of these motions before Judge Nadelle and I cannot, this morning, entertain another series of motions. What I am going to do is adjourn all of these motions to the trial date and, of course, you will be able to make all of these motions before the trial actually commences and we'll set aside enough time for you to do that. TURMEL: But then the injustice of the delay hasn't been solved. COURT: Well, then, that is something that you will ahve to take up with the trial judge because he has jurisdiction to do something about that. I do not. TURMEL: Not in the case of autrefois acquit, Your Honour. And there is no evidence to be adduced. COURT: Well, that is my decision this morning. So, this matter will go before Judge Lennox on the 27th of September at 2 p.m. PRESENTATION TO THE ONTARIO GOVERNMENT STANDING ECONOMICS COMMITTEE BY CASINO TURMEL The Chair: Our next presenter this afternoon is John Turmel, representing Casino Turmel. If you would please come forward, sir, and make yourself comfortable, you have 30 minutes within which to make your presentation and field questions from the committee members. Turmel: Did you say 15? The Chair: I said 30, and whenever you're comfortable, you may please proceed. Turmel: Okay. Well, I do have a submission that I've given everybody if they want to follow it along, I propose to read it and digress, and if someone has a question, throw it in, because I'll be short in my answers and we can continue on. So don't feel any worry about interrupting. I am the only systems engineer in Canada to have specialized in the mathematics of gambling. I've been accredited as an expert witness in matters related to gambling on numerous occasions before the Ontario and Quebec provincial courts. I was once even used by the Crown. I have operated Poker and Blackjack games in the Ottawa area for the past 20 years and was six times convicted, before finally being acquitted of running an honest game. All judges said, "He's honest," but six said, "He's guilty." In April 1989, upon an agreed statement of facts, Ontario Provincial Court judges Fontana and Lennox dismissed charges of operating a gaming house against John Turmel and the found-ins. Under the scrutiny of the OPP and Ottawa police, Casino Turmel in Ottawa operated legal card games of skill such as poker, with no rakeoff; blackjack, where they could bank me back; gin rummy, for over a year and a half. In December 1991. OPP undercover officer Joe Fotia twice investigated the blackjack and poker games held in my home and filed no charges. Five months later, after I'd started a small blackjack and poker games room on Baxter Road in Ottawa, with five blackjack and three poker tables, and employing 14 staff, Cardinal Agency, a charity casino operator, complained to the police that he couldn't compete. Of course, I'm not blaming him. He wrote and said: "How come Turmel can be running casinos and I have to pay for licences? How does he do it? If he's doing it in some legal way, I want to do it too, and if he's not, bust him." Again, Officer Joe Fotia investigated my games of poker and blackjack 10 times during the months ofJune and July 1992. Again, no charges were filed. Five months later, after I'd started a larger casino at the Topaz entertainment plaza on St Laurent Boulevard in Ottawa, with 20 blackjack tables and six poker tables, operating 24 hours a day, seven days a week, employing over 100 butler-dealers, Ottawa police investigated five times in January 1993 and filed no charges. Between that point, I did announce at a Toronto press conference that I was going to expand and start these types of poker and blackjack clubs in Toronto, Niagara Falls and Brockville. I'll go into why the American market is important for Niagara Falls and Brockville. I'd also point out that Peter Kormos came when he heard about my wanting to set up in Niagara Falls and examined the operation at Topaz. So if you want to know as to the professional attitudes and the quality of it, he's a man who actually came and investigated, knowing I was coming to his community. As for why Toronto, I did start a casino in Toronto last year, early in the year, but the police, in February, threatened to lay the gaming house charges regardless of the judges'decisions that had acquitted me. So I chose to shut down and get some legal opinions, and then I announced I was going to open up again. Two months later, though, the Ottawa police and the OPP started a combined investigation. This time, they changed their minds. They launched Project Robin Hood that's what they called it; in Hull two years ago they called it Operation Blackjack and they laid charges. If justice prevails, I'll be acquitted again. As a matter of fact, the pre-trial is coming up September 27 in front of the same judge who acquitted me the first time. For the lawyers in the room, there's going to be one of these rare autrefois acquit pleas going on before the same judge who acquitted me last time. So a rarity is happening on September 27. If I do win, small card casinos won't be stoppable. You're going to have to face bridge clubs that have money toumaments, you're going to have to face poker clubs with no rakeoff, and of course you'll have to face these types of casinos of legal games, because it seems the focus so far has been on the types of games that large casinos offer. They cannot compete with the small ones for several reasons soon coming out. And if I do win, the province should get ready to handle the increased tax revenues that we'll generate unimpeded. The jobs I created paid approximately $40,000 a year with tips, so they were substantial and people loved them, frankly. This $4- million yearly payroll represented less than full capacity. At full capacity, there would have been 150 to 200 Ottawa jobs with that number of tables I listed. Card players were being bused in from Montreal four times a week, with more travel agents, one from the US, planning more tours. After deductions and taxes, govemment will always reap more than half of all the money won if it's done by private enterprise, yet my Canadian model of small and medium mom-and-pop-style casinos, "Cheers with chips" is how I like to explain it -- McClelland: Everybody knows your name. Turmel: -- would allow jobs and winnings to stay in the community rather than have them all channelled to a few large cities. It's been said that gambling would attract drugs, prostitution and organized crime. I can only point out that though they're already here -- let's get that straight; they're already here; this is not going to attract much more than the market's already handling -- I didn't find them to be problems at my games. If a guy wants to come doing drugs, he won't have money tomorrow night to either play or do drugs. You find most people who do play games of skill aren't the ones who want to be impaired. If you can get them off those games where they don't need their brains, like lotteries, bingos, craps, things like that, and get them on to blackjack and cards, even more reason you're not attracting people who want to do drugs or alcohol. As a matter of fact, we have no alcohol, though I must admit in the past, when I ran it in my home, I had a fridge full of beer. But since I've gotten larger I've decided the problems with alcohol are too much and you don't need drunken people losing their money sorely So it's turned into more of a bridge club atmosphere by not having alcohol. Whether or not the govemment's going to allow it, like the big casinos, I have no real opinion on. If you've got a lot of security guards, I guess it can't hurt but if you want to do it economically and cheaply, then you don't need security guards and you don't want alcohol. So "Cheers with chips" would allow the money and the jobs to stay right in the community where the money's lost. It's been said that gambling would attract them. They're already here. I haven't found it to be a problem. I think this has largelJ been a result of the large number of elderly players who actually prefer $5nd $10-maximum poker and blackjack to bingos and lotteries. I have an 86-year-old man who plays $5 poker. Every Saturday, we have a busload coming in from Montreal and you'd think it was the geriatric ward of the city. Literally, it's the same old people who drive all the way from Montreal by bus to sit down and play poker with each other for eight hours before driving back. I mean, it's actually very cute, you know, and it's a nice way for the employees to make a living. Believe it, old people can still use their brains at that age, especially with the games I've designed. Blackack's pretty simple -- count to 21; most people still can -- but poker, most people have difficulty playing stud games because you have to watch all these hands out there and keep track of the cards and it's a problem. But this most popular game in the world right now, called Hold'em, has only two cards in your hand and five in the middle. It's a seven stud. That way, the old people only have to look at their two cards and the five in the middle and see how they mesh -- they don't have to do anything else -- and listen to the betting. I'm sure you can't see this kind of intermingling between old generations and young generations, and it's actually quite wonderful to see. I'm sure you see it in Las Vegas if you visit the poker pits at the small stakes, and I think we should have that here too because, frankly, exercising the brain seems to keep these people sharp. I've seen people at 60 years old -- l play accordon in old folks' homes. When I was convicted in 1981, they let me out of jail if I played concerts in the old folks' homes, and I can say that a lot of people at 60 years old can't do very much, but these people are bright. When they get a pair of aces, it's the same rush; try and trap them. Anyway, because of all these elderly people who do come, it would be quite difficult for either drug pushers or prostitutes to approach gamblers in such a setting, where such activities would quickly be detected and frowned upon. There were no drug or prostitution charges or allegations in Project Robin Hood. I've demonstrated that my type of small casino has experienced no trouble over the last 15 nmonths, much as any bridge director could attest that bridge toumaments are relatively incident-free. The presence of cash in no way renders the gambling at bridge any more detrimenal to the public peace. Similarly, gambling at poker, blackjack, euchre -- that' s another hot toumament game coming up soon -- and gin are quite peaceful activities. As for organized crime, they wouldn't be too intersted in small operations with profit levels more in tune with small businesses and, frankly, my profit at the end of all my thing was in the neighbourhood of about lO%c of the total winnings that came in. After all expenses and all that kind of stuff. I'll be left with 10% -- it's 20%, but the government takes half. No way in the world am I making as much as Wayne Gretzky or even a large auto dealer, so it's not as lucrative as most people think, but still it's an entertaining and enjoyable way of making a living. I could sit at the poker table for 20 hours a day and love it and be happy and pay the rent. Anyway, organized crime, we've had no hints whatsoever, no pressures, nothing like that. As for the compulsive gamblers, the personal neighbourhood touch also allows for recognition and help to abusers, which larger and personal casinos cannot do. It's pretty tough for an abuser to hide the fact when a niece or a nephew is working at the next table, and if it's in a small town you bet some kin are going to be working in the casino, so that uncle Jerry can't come and blow his brains out without Aunt Millie finding out, or the kid standing up and saying, "Bar him from the casino.' I can attest that not only have I and other management personnel spoken with abusers, but so have many of the new friends they've made. So friends actually speak up and warn people about this too. No one wants to see them quit the game, but everybody wants to see them playing at stakes they can afford. I have personally barred abusers; I have imposed conditions on others. Some I only buy in once for a set amount, $200, and if they lose it they're gone. Others are restricted to a certain maximum bet, $10, $15, $25. Some have fixed hours, "You've got to go home at midnight because you work in the morning; the wife gets mad if you come in late," and several may not play unless accompanied by the spouse. Frankly, that is the ideal solution. When the spouse comes with the abuser and is sitting at the same table, his gambling is always under control. So I've found very few problems in that respect. I do have a database of 4,500 gamblers who have played with me and through my doors, and I'd say that I can probably count the abusers on my hands. Besides, the real abusers make great employees. The Citizen had a big article about my casino and it mentioned that this poor guy had to take a job at Casino Turmel when he lost all his money. The point is, I took He can only play 4 little bit. Tne managementmakes sure that he can't play with his rent money. So he's got himself a 40-grand-a-year job and he's under control. I found, frankly, that those people who did lose control are the ones who understand the games implicitly and then enjoy being on the other side of the table. It seems to satiate their desire. They 're at least in the action, participating in some way. So all those people out there at Gamblers Anonymous, come see Casino Turmel. I bet you' ll be a good dealer. I further belieive that the curse of gambling is, with few exceptions, the acceptance of cheques and the extension of credit by the house. Problems arise when the gambler is losing and goes on tilt. If the game takes his cheques, he could lose all his savings in the heat of the moment. I will not take a cheque and let a person use funds in his chequing account unless the players are such high rollers as to make the transfers of cash impractical. Frankly, in the second-last month before they raided me, one guy hit me for a quarter of a million dollars. That's a $300 limit, seven hands, betting maximum all the way over the space of three weeks. You need a huge bankroll to sustain those types of limits. But again, this is the type of action that you just can't do in cash. You have to pay in cheques, and that's safer too. If I had my choice, I'd rather it was all done by cheque. Of course the govemment's happy; they know everything I win, and we're not going to get robbed. Who needs security? I didn't put it in here, but you might make a note that possible total credit might be an answer to the abusers. You know, you either have a chequing account that's been okayed for gambling, in some way - - and the banks would love to open a new set of accounts, right? In that way it can be controlled. There are ways to control them in the smaller communities that are totally unavailable in the large, impersonal casinos. Anyway, without access to their chequing accounts, gamblers can never lose more than they were prepared to lose when they came to play, and I found very few problems with that policy. Worse problems arise if the game extends credit. I've extended credit over many, years and I've had to write off a lot. I learned my lesson, as I have no stomach for chasing people who have evidently hurt themselves. Any hint of strong-arm policies is eliminated without credit. I therefore will not extend credit, and again, players cannot lose more than they were prepared to lose when they came to play. There are now five other Turmel-style casinos in Ottawa, with three having opened after the Project Robin Hood raid, so they're all counting on my winning my case again. Unfortunately, they do not adhere to my credit and cheque policies -- a little mistake there -- and I cannot say that those problems will not arise, but to date their mere unobtrusiveness is an indication that such industry can be competently and quietly done. I further believe that the larger casinos cannot compete with the small neighbourhood games people have access to already. Men who regularly play poker at their golf or social clubs -- and I would bet that if any of you guys play poker at your clubs, you'll understand -- will not be attracted to the large casinos and will inevitably prefer a setting of their own choosing and games of their own choice. They might go to the big downtown casino once in awhile, but most will stay at the neighourhood game. The problems with big casinos are immediately "evident. The August 24, 1993, Ottawa Citizen article entitled, 'Angry' Horsemen Rein on Casino Hearing Parade," points out that if the Chippewa Indian tribe in Detroit opens a casino, the Windsor casino will not be viable and a large investment will fail. On the other hand. If several small, Turmel-sized casinos were about to be put in operation, one or two might go under but not the whole industry. There's no need to put all our eggs in one basket. I further believe that the proposed Windsor casino test site will in no way be indicative of what would actually go on, since it seems to be the case of it being run by Americans for the American market. I bet the ratio of people familiar with guns who visit Windsor from the murder capital of the USA will be far higher than that for Ottawa. I'd further point out the awesome potential of money bridge toumaments. Such a tournament was recently held in a US casino and has the potential of'being the all-time largest gambling game. Now, I host -- I've got it here -- the annual Canadian Open Hold'em Poker Championship, which last year had over $80,000 in prize money, and I believe that such purses will be dwarfed by the purses created by large bridge tournaments. I've been holding these tournaments for about eight years now. Last year, we had entrants from the United States, Quebec, Toronto, Winnipe g, the east coast. This is a large tournament now, and as long as I don't take a rakeoff, even if I don't have my permanent Casino Turmel setting, I can still run it in a hotel like I always used to oripinally. I'm sayinp it's just a matter of time, as long as I don't take a rake and make a profit. Of course, I always come in the money, so you know -always," no -- I usually come in the money in these tournaments, so I'll organize them as often as I can. As long as I don't make any profits and the winners cover the tab -- l've had these investigated by the police and pronounced fine, so like Benny Binion, who owns the world series of poker in Las Ve gas, John Turmel owns the Canada championship here, and I don't intend to give it up as long as I have the wherewithal do it once a year. Anyway, I think that bridpe is coming and I just might decide to try and host one of these massive tournaments. Being from Toronto, you must be aware of these 5,000-person bridge tournaments that take place down there. There are 5,000 people at a bridge tournament seeking master points, simple recognition. Just imagine it. If everybody put up $100 into the pot, or $200 like we do at poker, you'd be looking at a half-million-dollar prize and now people would really have a thrill. As long as there's no rake going to the house, this is going to be explosive. This kind of activity can't be stopped. People are always going to choose to use their brains. As a matter of fact-a short one-minute digression-I wrote a poem when I was thrown in jail about 10 years ago on this problem. I was sitting in a jail cell, they gave me a pen and paper and I wrote: Here I sit, broken hearted. Came to play, but was soon parted From my friends that I do know, Enjoy this game as I do so. Now I languish here in jail, Puzzled by my need of bail. I don't know why they oppose My wish to gamble, no one knows. I don't hurt them. Why bust me? It isn't their game, now I see. They allow bingos or tickets bought But never, never a game of thought. Bingos bore me, lotteries too. Give me poker, blackjack, backgammon too. I prefer thought, exercise my brain, Playing lotteries would drive me insane. So I choose to make use of my mind And pity those who won't in kind. So I'm in here and they're out there, Yet still I choose to think, to dare. By the way, I was convicted. Anyway, money bridge is going to be big. Just ask any of your bridge-playing friends if they wouldn't love a bridge toumament where everybody puts in $100. It's coming. Now the reason Canada will have great initial success in luring American gamblers, and I found this, is because they're taxed 30% of their winnings right at the casino, whereas here gambling winnings to non-proessionals are treated as a non-taxable windfall and they get to keep it all. Two chartered flights of gamblers used to leave Ottawa for Atlantic City every month; now there are none, with American card players coming this way. Or they were: They must still be going to the other five casinos, because they've hired all my dealers, so word's spread anyway. That's true; most of my dealers have found employment with the other five casinos in town. A lot of people in town think it's unfair that they're just using me as a test case, and I think they have a real weak case too. Keep an ear out on the media and see if they cover it well. Now there are none of these, and if the quiet, sociable nature of the Canadian model I offer were to be better known, it would beat the more familiar American model hands down. Spinoffs in the tourism industries have surely been well documented by other submissions to this committee, For these reasons, I would recommend the immediate licensing of mini-casinos allowing the playing of poker with a small service fee. I pick up the rent just because I'm good, but a house ought to be able to charge $5 a seat to pay for the lights. I'm forced to not take a rakeff and just pay the bills with what I win as a player, but I'm good enough to usually win between three and four units an hour. Just think about that if you find a $100 game and you're playing 50 hours a week. I can pick up the rent, but if I have only one table, I may not find a $100 game. If I have 10 tables in my place with 100 gamblers, out of there you'll get 10 or 11 people capable of playing at the high stakes, allowing me to pick up the rent. I would recommend the licensing of small poker mini-casinos, card casinos, and allow poker with a little service fee, blackjack or any other lawful games. All those honest underground poker games that have been running illegally in every Canadian city for as long as I'm sure anybody can remember should be allowed to come out into the open, register their wins or gains and pay their taxes. As a matter of fact, if you would come to me and say, "I've been convicted of running a gaming house three times, but the judge always said it was an honest game but I broke the law," I'd call that a recommendation. There are a lot of people out there who've been in the industry, who've been running honest poker games, like myself, who have criminal records. I've finally found a way to do it right, I hope. I'll prove it again. All these games are honest. The gamblers will police the games themselves usually. Therefore you could sprout an instant industry almost ovemight in every small town, so that, again, all the benefits of the money staying in the community would be there. Everywhere you could comfortably situate a billiard table should be a candidate for a poker or blackjack table: clubs, restaurants, racetracks. I think lots of gamblers would enjoy being able to have a poker game at the racetrack, being able to place their bets, like a keno runner, on the horses on the track, with the screens up there. I think the racetracks would be popular casinos. Just like Circus Circus draws the people with the families in Vegas and other places have their attactions, I think the racetracks would be really solidified by adding a small or even a mid-size casino within their midst. I think people would stay there. I think they're just ideal situations. I don't think they should worry at all, as long as they're allowed to obtain licences on their own. It can only help their industry. There is already a large, talented underground industry out there, ready to sprout into existence beside any larger models with which to compete, and I don't think the larger models will compete. Finally, government shouldn't be involved in which games players want to play or gamble at. Whatever the players choose should be marketable, and the guy who finds the way to market it in the most pleasant way is going to be the winner. I think it should be left up to private enterprise, and short of leaving the policing of cheats and things like that to the police, really I think these things could pop into existence almost overnight. Again, any large ones you set up could be liable for large tumbles when the competition in other states do finally open up everywhere or if your neighbours across the border simply allow small casinos to go too. You have to have small casinos so that some will get knocked out, the rest will survive; otherwise, it looks like there could be some big falls, and I predict Windsor will be a big one if those Indians open their casino. The Chair: Thank you very much for a very entertaining presentation. Very seriously, you offer some interesting ideas. Our time is quite limited, but I suspect that if we're giyen an opportunity to ask questions, you will have a lot to say in your responses. Turmel: I'll be quick. The Chair: Oh, will you? That's great, sir. I wouldn't want to imply that you 'd go on at length. Turmel: I ran in 33 elections with a one-minute constraint on average questions. The Chair: Again, in all faimess, I offered 30 minutes, and we don't have a whole lot of time, but maybe because you're the last presenter today, we can offer just a little extra time. We'll start with Mr. Duignan. Mr. Duignan: We don't have any questions at this time. The Chair: Kwinter. Mr. Kwinter: Turmel, I had breakfast with a former classmate of yours this moming, and he told me that you were coming and said that I would find you very interesting and entertaining, and he was certainly ri ght. He also said something you may not agree with, but in his words, that you were a genius. From what you tell me about your ability to win at poker, which really funds all of these operations, just by winning, what happens if you get somebody who's better than you are and you don't win? Turmel: You see, that's not it. The essence of bein g a professional is -- l have walked away from games. When they opened the games in Comwall, I went for six months, made a huge killing. But I walk in there, there's a $50 game, and I look and I see one, two, three, four sharks, four pros like myself, maybe just slightly not as good, because I have some pretty sophisticated mathematical tools, but still winners, guys who can expect to grind out. I look at the $25 table where I see only one or two sharks, becouse even sharks think the big action's better. I'II pick the smaller table because I know I can win more against less sharks. So sure, there can be a better player who will come up against me, but he can't beat me for very much, even if we were head-on. A better player might win 52 toumaents out of 100 and I might win 48, so the actual difference between skilful players isn' t that substantial, but the difference between a winner and a loser is. Mr. Kwinter: The point I was trying to make is that without your proposal of having a service fee of whatever it is- Turmel: Five bucks an hour or something per seat. Mr. Kwinter: -yes, whatever it is so that you can finance this thing, you were able to run this only because you have the ability to finance it through your winnings. Turmel: That's ri ght. Mr. Kwinter: Now, if you couldn't finance it through your winnings and you were at the mercy ofthe John Turmels who come to play- Turmel: You couldn't compete. As a matter of fact, if I don't win my case, I will break the Ottawa casino when it opens. Watch out; I'll have nowhere else to go. The Chair: There goes the $150 million in taxes. Turmel: Unless they bar me. I don't know what your position is on barring. In Las Vegas they barred me from two casinos and in Atlantic City they had other measures to cope with me. But I don't know if you've even contemplated how to cope with card counters. Are you going to eliminate my chance to gamble chez moi and also bar me from gambling in my home town? So it's an interesting problem, but better to have me on this side of the table than playin g against the house, because I can win it faster. Mr. Carr: They may run you as an NDP candidate to get rid of you. Turmel: That's a cheap shot at the NDP, though. But no, I happen to be in a unique position where yes, I can use winnings to fund that kind of expense and have that large an operation. But I also notice in Las Vegas that at the poker tables not onlv was the house taking five bucks a pot and 150 bucks an hour, but the dealers were being tipped one, two, three bucks a pot, and that's why the employees make $40,000 a year. That's why I reasoned that even if I don't take a rakeoff, the people still tip when they win, and guess what? The people are tipping the tip pool $50 to $70 an hour, and in a high-stakes game sometimes $150 an hour. Now, I don't touch that. All I can say is a pure tip industry could be created with poker paying $40,000, $50,000 a year, so basically those tips are very valuable. They actually provide more money to the dealers than I provide in salary. I'd say tips are at least as much and maybe a little more. So it's not just me having to win it all, otherwise the dealers would be eaming 20 grand a year. Actually, they're getting double with their tips. Again, the competition's a kind of nice way, because those who serve them better and please the players better and offer nicer surroundings are the ones who are going to do better and keep the gamblers. So tips are also an important element in funding paycheques, and it's not just my gambling. Mr. Phillips: I appreciate your advice to us on the Windsor model. I don't know whether you've had a chance to look at it. I think it calls for roughly 12,000 visitors a day- Turmel: That's large. Mr. Phillips: -and I think a 20% fee from the province on the win plus profits. What's your view on the likelihood of success? I don't know whether you've had a chance to look at the model. Turmel: Only with respect to larpe versus small. I see that if there's competition on the American side, all Windsor's going to have is that 30% tax leverage, and if they ever eliminated that, then people would be staying on the American side. Most people who play small stakes will stay on the American side for sure, because the tax breaks -- they don't hit you for a $100 win at the cage. There's a certain threshold before they hit you with the 30% taxes, so small gamblers won't cross the river. This tax advantage is really only a lure to the high rollers in Detroit, and we all know who they might be. So I just don't think that can be the problem. I think the largeness of the casino is a threat to the casino, and if they were rather to start a small strip of pleasant-type "Cheers with chips" to get it started with, even if the Indians did open, it might still survive, even if one or two go under. I think that small would be the way to try, but then again, it's not representative of what I'm experiencing in Ottawa or what I did in Toronto at all. It's a Detroit market, and it would be large and it would bring the same impersonal problems that the large ones do. Sure, the hookers would be hanging around the bars because there are no grandothers saying, "I don't want my nephew hanging around her." You can't believe how many times you have a whole family at the table. I mean, people come and they take a whole table, the whole family. So what used to po on in the kitchen now goes on out in another setting where there are more people they can socialize with. Once people get a taste of it, they're not going to go back to the slotmachines too muchand things likethat. I think that starting small but spreading out the risk would be the better angle. But yet, having experienced no problems whatsoever in 15 months -- and you can check with the Ottawa police: none -- l would say here's the proof of the pudding that small can be done well. Besides, there have been manv small ones operating well across the country, since ever. We've just got to get them out and say: "You're legal now. You've been running a game for 20 years." I know these games in Ottawa -- l used to go play at them -- with a little rakeoff goinp to the guy, he makes a little bit, but we could have been busted. Yet he's an ideal candidate to come forward, open little shops, have three, four tables, get the wife making pasta in the back. They can compete, is what I'm saying. Instead of having a few large gamblers get into large casinos, all sorts of little guys can set up. Literally tens of thousands of small entrepreneurs could be out there, you know? The mom-and-pop operations is where I would like to play. Large ones will be available for people looking for high stakes, because I figure if there are more tables, there are more likely to be high rollers there, so I'd check out there first. But if I know the high rollers are going to make an appointment to meet me here, I'd rather go have the great pasta too. I think that the little entrepreneur's really got to be given a chance. There's a skilled underground out there right now. If you give them permission to come forward and paytheir taxes, they'll be right out there and you'll see an expansion that'll go on and you'll see competiion. Five other guys opened up, and I'm sure that if I win my case and I reopen, one or two may go under but the others may be okay. Two of them are Chinese guys; well, odds are they mi ght prefer to win or lose their money with Chinese owners than with me, even though I had 30 Chinese dealers. But who knows what reason they're going to want to choose to go there? I think they ought to have that option. I've experienced no problems. The industry's ready to go. Just wave and we're off. The Chair: If there are no further questions, I want to thank you again, Turmel, for presenting before the committee. Turmel: Okay, thanks for the opportunity. The Chair: This committee is adjourned until 10 am tomorrow in Niagara Falls. The committee adjourned at 1613. 930902 Ottawa Citizen, Ron Eade Double or nothing Self-professed gambler John Turmel also appeared. Turmel faces four gambling charges after police closed his casino. Turmel said at least five other casinos operate at other Ottawa locations. 931115 NOTICE OF APPLICATION TAKE NOTICE that on Thursday, 19, 1993 before this court at the Ottawa courthouse, 161 Elgin St., at 9:30a.m. or so soon thereafter as can be heard the motion for: 1a) an Order pursuant to the special plea of autrefois acquit quashing the first two counts of the indictment, keeping a common gaming house and keeping a common betting house, on the grounds that the Defendant has been formerly acquitted of both charges before; 2) pursuant to Section 601(3)(b)(i) and (iii) an Order quashing: a) the first count of keeping a gaming house on the grounds that it fails to state which of the five "acts which constitute the offence" I have violated; b) the last three counts of the indictment, keeping a common betting house, being in the "business of betting" and "controlling monies from activities proscribed under Section 202" on the grounds that they fail to state what is requisite to constitute the offence, the essential averment of the recording of bets; 3) or in the alternative, an Order pursuant to the special plea of issue estoppel quashing all charges to prevent contradictory judgments. 4) an Order staying the charges on the grounds of prosecutorial abuse of process which offends the community's sense of fair play. AND TAKE NOTICE that in support of such application will be read the affidavit of John C. Turmel, the decisions of Judges Lennox and Fontana of the Ontario Court (Provincial Division) at Ottawa and Judge Bonin of the Quebec Provincial Court at Hull and any other such material as this course may permit. Dated at Ottawa on Aug. 13, 1993. For the Applicant: John C. Turmel, B. Eng., AFFIDAVIT OF JOHN TURMEL I, John C. Turmel, who residing at two nine one eight (2918), The Baseline Road, Nepean, do make solemn oath and state: As only engineer electrical who specialized, At Carleton University in course I realized, Was given only there of all the schools across the land, Where mathematics could be learned to draw the winning hand. My fourth year engineering project used computer core, To work out Poker odds and tactics never known before. Unparalleled are my credentials in the odds of game, Courts in Ontario, Quebec wrote "expert" to my name. 1993 CHARGES: July of '93 saw Ottawa police compel, The closure of the card casino run by John Turmel. "You've kept a common gaming house, it's an illegal game. You've kept a common betting house." The next charge to my name. The "business of betting" was the third charge to be laid. "Control of money from the betting" was the last one made. But only "keeping gaming house" alleges cash for play, While "betting charges don't apply to cards," the courts all say. 1989 BETTING CHARGES: The PILON case in Montreal best said what made a bet, So different from a gaming contract, "It's not hard to get. If parties are to play an active role in the event, If one is author of the win, it's gaming money spent. But if event be independent of their active role, Not gaming contract, it's a bet when they have no control." Put cash on prize fight, football, hockey, betting is the deed, But cash on cards or strokes of golf and gaming is the creed. The LEWIS case explained at the Quebec Court of Appeal Averment found essential so the betting charge to seal: "To prove a betting house, ingredient I wish to see, That bets have been recorded or it is a nullity." To make a living gaming, the profession that I chose, Is demonstratably legit, ask any Poker pros. The government has always taxed the pros who ever win, And never have they ever hinted skill at cards is sin. It's gaming, it's not betting when your cash is on a card, And yet they tried to link my cards to booking very hard. In '89, my games of Blackjack faced a betting charge, As were all found-ins at my game. The betting net was large. The Crown and I agreed upon all facts. A "Stated Case." Upon interpretations of pure law they made their case. They even used me for the expert testimony sought, No clearer case could judge have had to see if my game's caught. So judge Fontana ruled that bets do not apply to cards, He threw out all the betting charges. Found-ins waved regards. Judge Lennox, on book-making, in the keeper trial for me, Heard Crown withdraw the betting keeper charge submissively. SUFFICIENCY: For gaming house, said found-ins' lawyers, "Charges very lame, They didn't even cite within the name of the game! On page eight hundred twenty four, right in the Criminal Code, On whether substance of offence disclosed of crime the mode. In Canada's Supreme Court was the case of WIS adjudged, From specificity of charges, they would not be budged. They ruled that "When a crime could be committed many ways, The charges would be "bad at law" without specific "nays." An abstract charge does never to sufficiency amount, You must identify transaction leading to the count. Description of the crime must have enough to go as far, To lift it from the general to the particular." The BINGO case in Manitoba's high Court of Appeal, Ruled "WIS" applied to gaming with five ways their doom to seal. With five defences to the five descriptions of the crime, Accused must know which of the five on which to spend his time. Particulars cannot correct a charge that's "bad at law," This court finds "irreparable" the damage of the flaw." The Bingo court opined that "WIS might overrule a lot, Of cases like the GRISS of betting house that might be caught." So WILSON case in Manitoba's high Court of Appeal, Said "WIS applies to varied betting charges too, we feel." The MILBERG case at Ontario Court of Appeal, Contained an argument for WIS within the lawyer's spiel. The case dealt with an "act-of-sex" illegality, The court ruled "Bawdy house is really one activity." Before my plea, Defence relied on BINGO, WILSON too, But Crown cut short a MILBERG sentence to so misconstrue: "We note respectfully the disagreement we do feel, In BINGO with the Manitoba high Court of Appeal...." Defence continued reading line, "`That WIS applies to GRISS,' And GRISS does not like BINGO deal with acts of games remiss." Since GRISS is betting house, they don't with BINGO disagree, It's WILSON's betting house which eye to eye they do not see. Like act-of-sex, the act-of-booking's easy to be seen, But same for varied acts of gaming house, it doesn't mean." Fontana ruled "Though keeper faces course of five to run, Like MILBERG, found-ins have to face but definition one." If first the keeper's tried and loses, automatically, The found-ins are found guilty with no defence law can see, But they were first to face the evidences to be met, So same sufficiency as keeper's charges they should get. 1989 GAMING HOSUE CHARGE: For found-ins in my gaming house, Fontana lucidly, Considered each description of the charge so as to see: "To gain out of a place from sale of food or drink is caught. To charge an entry fee or take a cut out of the pot, To run a game where odds of winning aren't the same for all, To exclude found-ins from the bank, his game, if such, would fall. But John Turmel, I cannot order that his games should cease, None of these things were done to you. Go, found-ins, play in peace." The insufficiency of the indictment's manifest, Judge Lennox ordered Crown to "State particulars to test." He then learned that Fontana had dismissed the charge because, A game that's even up for all can't violate the laws. No gaming house exists if found-ins' losses were all fair, No gaming house exists if keeper won it fair and square. He asked if Crown alleged another source of funds I'd gained, Besides the legal winnings that Fontana has sustained. Without a way to demonstrate unfair I ran my game, "With nothing new, Fontana's right. Dismiss the charge the same." With zero chance of overturning judgments crystal clear, The Crown did not appeal. My legal gaming seemed so near. 1991 QUEBEC RAID: In Hull in '91, I started card games once anew, Police in "Operation Blackjack" laid both charges too. SUFFICIENCY: My lawyer argued BINGO, WILSON, all to no avail, The Crown said "In Quebec we've ruled that MILBERG says they fail." In BILLON-REY case heard at the Quebec Appellate Court, To quash a gaming charge, Defence to BINGO did resort. The court thought MILBERG also dealt with games, not sex offence, And misconcluded "MILBERG challenged BINGO's games defence." I moved before provincial judge "Like in Ontario, Please order the particulars of crime. I need to know." The judge ruled "BILLON REY court says no need to specify, Unlike Ontario, you'll get no hint at what they'll try." With trial looming soon ahead, no details did I know, So writ of Certiorari is the way I chose to go, To hear my motion on short notice, I asked Superior court, Justice Frenette said "I will hear the plea you did report." He ruled "With BINGO I agree though jurisdiction lacks, Still Crown should state particulars so you have all the facts." 1991 BETTING & GAMING CHARGES: Despite the criticisms and the urgings of the judge, From the refusal to define, the Crown refused to budge, And at my trial, "Particulars are sought, I wish to move, Which definition of the five the evidence will prove?" Again the judge refused. I faced an ambiguous task, With every witness every definition I would ask: "Did you see sales? Did you see rake-off? Did you see a fee? Were you excluded from the bank or losing unfairly?" Since each and every witness gave a "No" as their reply, To each and every question, seems the waste of time was high. Could not the Crown admit no rake-off and reduce the scope, And if no fee or sales, with charge, why should I have to cope? Nevertheless, the judge insisted that I spend our time, And answer each and every definition of the crime. In what would seem to be a contradictory retort, Judge Bonin who presided in Quebec's Provincial Court, Where once again I had the charge of gaming house to quench, Put me in jail for near a month. It may have been the French. And once again the betting charge was added to my list, And once again a judge ruled betting charge should be dismissed. In English, Judge Fontana could distinguish easily, Between illegal "gain" and what is "winning" legally. Unfortunately, French contains a great impediment, Un seul mot "gain" for "gain" and "win." It was not evident. If Bonin's right then every Poker game across the land, Would be a target where the host oft held the better hand. Pending appeal, my lawyer asked Quebec's Court of Appeal: "Please grant release because he's not a public danger real. No sentence should be served for he might be found innocent, Denial of release is only for the violent." The judge ruled that I was a danger to society, Like crimes with violence, she could not set the gambler free. With sentence served, there was no gain pursuing my appeal, They never could replace the time and so I cut a deal. I traded found-in charges dropped as proper route to go. For dropping my appeal then moved back to Ontario. Judge Bonin had made much of fact that "Though signs everywhere, Players weren't orally reminded of their banking share." So now there is a separate U-Bank game used by a few, And now I offer bank right after each and every shoe. ONTARIO PROVINCIAL POLICE : In early '92, I opened game on Baxter Road, A little room for cards with 14 staff to meet the load. But little did I know that OPP had sent a mole, Detective Joe Fotia playing skillful gambler role. Quite good at cards, he and I played for evenings on end, He'd have to note that no illegal monies did he spend. Upgrading nine months later, off to Topaz went the few, With now more than a hundred people staffing in my crew. I also tried another game, Toronto was the site. Despite the judgments given to police, they said one night: "We're not impressed with what you or your court decisions say, If you don't stop, you'll find we're going to bust you anyway." I weighed the risk of records criminal for 50 staff, A sorry situation, killing jobs makes no one laugh. When I was forced to fire over 50 friends that day, I buckled to the vigilante power many say. LEGAL OPINIONS: I vowed I would reopen and to start the battle right, I sought opinions of some learned men of law to fight. Niagara Falls had Gord McNab, a Counsel for the Queen, He said "Fontana is correct. No gaming house is seen." Another Q.C. in the Falls, a judge for ten years too, His Honour Norman Young said "Here is my advice to you. The judgment of His Honour Judge Fontana is correct, It should be followed by the courts" is what I would direct. If you rely on the opinions of McNab and me, And that of judge Fontana and of Lennox, you'll agree. You'll simply open up your game with betting on your cards. You should enforce your rights and I'll take steps in those regards." His letter to the OPP said "Though it may be strange, But when a loophole found ago, the code they had to change. I say that he as found such loophole in the law and may, Continue playing till the legislators have their say." LATE APPEAL: Ontario's Court of Appeal, in March of '93, Where Mr. Justice Finlayson heard my soliloquy. "It seems I'm not acquitted to their satisfaction so, I have appealed my own acquittal. Rare a move I know. But threatening to raid what's been acquitted once before, Is vigilante action by police and nothing more. If they object to rulings by the judges of my court, They should appeal, though even late, and not to force resort. So even though appeal is Crown responsibility, We've made it here. I will consent. Let's take it up and see." The judge could not help out for an acquittal sealed the deal. Too bad but only losers have right to file appeal. 1993 RAID: In May of '93, announcing "Plans to grow won't stall. Niagara Falls, Toronto, Brockville. Thousand jobs in all. Unfortunately, the police had other plans in mind, And it did not include three more casinos of my kind. Two closely similar casinos opened up like me, Though difference is esoteric, not easy to see. That late appeal was option for the crown, I did exhort, But choosing tactic of a raid, to force they did resort. Since Saturday, with hundreds present, headaches would have made, They picked a quiet Tuesday morning to begin their raid. They didn't close the other games, on me their final laugh, As they're now booming enterprise while taking on my staff. Of other games the Crown is trying argument to sell: "They must know how to run Turmel-style better than Turmel." They didn't charge the staff or found-ins wanting only me. I happened to be out of town. I thought I'd wait and see. They wanted me to come to Ottawa so they could charge, Me with all four offences cited. I remained at large. A warrant issued cross the land told all police "Arrest, And make the gambler dangerous with deck of cards your guest." No fugitive be I for was official their demand, Two hours later I gave up myself into their hand. The next day at my hearing over 60 dealers came, Protesting loss of jobs they know are legal just the same. The Crown requested three conditions if I wished release: "The thoughts of running games you should immediately cease; A thousand dollars bail in cash, the next you have to face; And keep away from Topaz Club where gaming crime took place." I pointed out "I've never run from legal tests before. There is no need for bail to keep me around to fight some more." I further asked if playing Poker at my home is fine, "Or does my running Poker game go cross the gaming line?" When Crown could not respond the Justice of the Peace did say, "Accused is well-known in community. No cash he'll pay; I will not be restricting him from running gaming too; But stay away from Topaz is the one thing he should do." 1993 CHARGES: Again, the gaming count is framed in way the very same, Again they didn't even cite the name of the game! Was problem with the Poker or the Blackjack games I ran, I haven't an idea why I ended in the can. And once again my games of cards face charge of making book, Not only one but three new betting charges to their hook. With no paraphenalia for booking found to date, The Crown says use of cards at games must betting indicate. "Controlling betting money" is illegal all agree, Convictions of the bookies is proof anyone can see. But the "control of gaming money" is seen to be right, At every Poker game occurring everywhere and night. The "business of betting" is what makes a man a crook, But "business of gaming" isn't even in the book. Without essential element of "no control" to show, The betting charge is nullity, it's "ab initio." With people in the lurch and over hundred jobs at stake, A legal eagle was my choice the move in court to make. He got a date to try to quash the counts one week away, And trial within another week, the start of legal fray. PRE-PLEA OPTIONS: Before I plead, I'll ask the judge, "Determine nullity. Eliminate the betting charges. Quash them speedily." The next move deals with gaming house though betting too applies, It stops a Crown who won't give up and tries and tries and tries. "Res judicata" is defence when court ruled once before, Where parties had a judge with jurisdiction settle score. But only at one's trial does plea "Res judicata" play, Allowed should be another way to speed up judgment day. Another possibility is "autrefois acquit," Where an acquittal once before is judged before a plea. The same place and same time were thought to matter to the plea, But they have no effect on many crimes you'll soon agree. Issue estoppel's another plea that can be brought, When issue's once before determined, no more debate is sought. A stay of the proceedings is to stop process abuse, When judge concludes the prosecution's has no excuse. ANALOGOUS HOUSE CHARGE: When Montreal charged ROTHMAN Realty, similar the case, "You've kept illegal rooming house," the charge he had to face. Though judge found "They're apartments and not guilty of the crime," The next year charge of rooming house was laid another time. He pleaded Autrefois Acquit, "Let not the court be fooled, There were no changes structural in house since last you ruled." The Crown objected "Rules of Autrefois Acquit" do state, It's always been restricted to such crimes with the same date." Judge Lachapelle said "Then acquittals wouldn't recompense, For situations where the date is of no consequence, Since Crown could have him in the court anew day after day, Though rooming house does not exist, initial court did say. The city may prove subsequently alterations made, For plea of Autrefois Acquit to fail to make the grade. But for this house the Autrefois Acquit should be applied, The structure once acquitted once again cannot be tried. The only way the Crown has open if it's wrong, they feel, Is challenge the original decision by appeal." So as his structure found protection from ruling before, So too the structure of my gambling house asks nothing more. In CARRIER, a pamphlet was accused a second time, Though once before a court acquitted pamphlet of the crime. Again the judge said "Autrefois Acquit should be applied, The pamphlet once acquitted once again cannot be tried." INJUSTICE ANALOGY: Wayne's Wonder Wiener Wagon case, direct congruity, A man whose Wonder Wieners captured market solidly. One day the mayor's indigestion rises from his dogs, He'd wolfed down three of Wayne's most spicy Wonder Wiener logs. Wayne's Wonder Wiener Wagon was impounded, corner lost, With zero income while he waited, all he had it cost. In court the mayor's allegation "Indigestion meant, The Wonder Wieners held more fat than fifty two percent." At trial he had an affidavit, butcher in the know, "Those links I made with meat aplenty. My receipts will show." The final proof his recipe fell well within the line, The tests at Corporate Affairs showed Wonder Wieners "fine." Wayne's Wonder Wieners were acquitted of their fatty rap, But getting back into the business wasn't quite a snap. Yet once his wagon opened after much financial pain, The mayor got an indigestion. Pressed the charge again. Again they seized his Wonder Wiener Wagon. To the mat, He'd go broke well before he'd answered charge his dogs were fat. Should jurisprudence not provide the innocent to say, "I've been acquitted once before. Abort unjust delay." PROBLEM: I face the same predicament that's making Wayne so blue, It was the method that I used and not my person who, The judge acquitted when he ruled my game was fair and square. Can it be said what's fair and square depends on when and where? Has not a new class been created, crimes of enterprise? Should novel use of autrefois acquit not too arise? Most crimes of enterprise are independent of the place, Our recipes acquitted should prevail in every case. SUFFICIENCY: At motion to the Judge Nadelle that charges quashed should be, The lawyer made the case for what I thought was plain to see, The BINGO case on gaming house says standard to be met, "Specifically, which of the five descriptions he should get. The same lack of precision is within their charge anew, But WIS and BINGO say particulars should never do." The Crown said "BILLON-REY applies and makes the BINGO fail, Since MILBERG says that BINGO's wrong, there'll be no more detail." The Defence stressed that MILBERG dealt was sex, not game offence, And pointed out that BILLON-REY had missed the difference. Yet Judge Nadelle ruled BILLON-REY said BINGO can't apply, So that "Like MILBERG's bawdy-house, no need to specify." Though ruling "To the charge of business of betting will, Apply the WILSON ruling that no info needed still," But where the WILSON court quashed "keeping" charge as not complete, My judge told me that "Still the keeping charge you'll have to beat." If this is so, the Code must have a lot of lawyers fooled, Not knowing BINGO WILSON are by MILBERG overruled. It seems that only in Quebec, Ontario we find, Decisions misinterpreting the MILBERG state of mind. ARRAIGNMENT IRREGULARITIES: But worst of all catastrophes was still to me befall, The Crown found callous way the trial successfully to stall. With courtroom booked and magistrate found free to give his say, The Crown announced the prosecutors off on holiday. So though a hundred expectations pinned on justice swift, The Crown announced "We still have evidence though which to sift. We've only had three weeks and look at mountain that we face: Ten boxes of materials pertaining to the case." You'd think that after eighteen months investigating fact, A hundred wouldn't suffer cause together ain't their act. Denial of swift justice must result from trial's delay, When only reason given is "The Crown's on holiday." At my arraignment did irregularities unfold, When "I am taking over my defence" the court was told. They were to ask me how I pleaded, guilty or a fight, If I pled guilty, I'd be sent to court that sentence might. If I pled innocent, they'd pick to have a trial a date, But pre-plea motions must be heard before I must so state. Yet Justice of the Peace informed me that "A date is set, So that next month before Judge Lennox pre-trial will you get. When Crown heard Lennox who'd acquitted me was to be judge, The date they'd chosen as acceptable they had to budge. I said I have a motion first before I make a plea, Please send it to a judge to hear my "autrefois acquit." He said "You can present your motion on the pre-trial date, There's nothing else that I can do so you will have to wait." I asked the Crown what happened in the backrooms of the court, I got no notice of their application to report. When I objected that I hadn't had the chance to make, The plea of guilty and my punishment by court to take. He said "That's wrong. You've had your chance to make a guilty plea, You've been inscribed as having pled "not guilty," as you see." "That is impossible," I said, "My "autrefois acquit," Is to be heard before I have my choice of guilty plea. So having booked ex-parte pre-trial means you've stripped away, My chance for special pleas, in order to prolong delay. That Crown's assumed I've pled "not guilty" indicates a flaw, They've skipped some steps and closed some options for me in the law. I don't see how a pre-trial on assumption can be set, When chance to even make a plea, I never yet did get! CHARTER: We find within the charter of our new Canadian Rights, A list of things we may all do, a simple list of "mights." We might associate, we might assemble peaceably, We might pursue our livelihood employed all gainfully. We might not suffer being searched or seized unreasonably, We might not be detained, imprisoned arbitrarily. We might be told, if once arrested and without delay, Specifics of the charges that our actions caused that day. We might not twice be tried for an identical offence, This charter right for all acquitted as a recompense. We might not suffer cruel or unusual abuse, We might be treated equally. The Crown has no excuse. These rights have been denied me and the strongest for my case, I've been acquitted once before and nothing new took place. This case at bar is clear injustice covering the blame, Due to a government not qualified to run the game. I've demonstrated that the small casinos need not wait, And we Canadians for work need no more hesitate. As I understand my options: ! !Pre-plea quash Yes {Michael Edelson presented this motion ! No !Autrefois acquit Yes !No !Guilty? Yes ! No !Pre-trial Yes ! No TRIAL AFFIDAVIT OF FOUND-IN GENE LO 1.1 On Feb. 23, 1988, I and Dave Booth were charged with being found-in a gaming house and found-in a betting house for playing Turmel-style Blackjack at the Bayshore Hotel in Ottawa with John Turmel or one of his agents. No definition of gaming house was specified. 1.2 On April 3, 1989, after evidence that Turmel had given me a fair game which resulted in no unlawful gain other than legal winnings for Mr. Turmel, Provincial Court Judge Fontana acquitted us on both charges after ruling Turmel-style Blackjack rules did not constitute any of the five definitions of gaming house or a betting house. 1.3 I played Turmel-style Blackjack at "John's Place" in John Turmel's home. It was investigated by the OPP and I was not charged. 1.4 I played Turmel-style Blackjack at "Turmel's Games Room" on Baxter Rd. in Ottawa. It was investigated by the OPP and I was not charged. 1.5 I played Turmel-style Blackjack at "Casino Turmel" at the Topaz Plaza on St. Laurent Blvd. It was investigated by the OPP and I was not charged. After a fourth investigation, "Casino Turmel" was charged with being a common gaming house. 1.7 I played Turmel-style Blackjack at Dave's Club Junction at 1485 Laperriere Ave. in Ottawa with Mr. David Booth or one of his agents. On Oct. 21, 1993, I was charged with being found-in a gaming house for playing Turmel-style Blackjack there. Dave Booth and I were both just playing what we had been acquitted of playing before because in Turmel-style Blackjack, everybody gets to be the bank. In this case, instead of both of us playing with Turmel, we were playing with each other. 1.8 I have been playing Turmel-style Blackjack for almost 10 years and submit that not only are Turmel-style Blackjack rules the most generous rules in the world but Dave Booth continued to give me the same fair game that Judge Fontana ruled Turmel-style Blackjack has always given me. This Affidavit is made in support of a motion for: 1) an Order pursuant to the special plea of "autrefois acquit" quashing the indictment on the grounds that the Defendant has been formerly acquitted of the same charge; or 2) an Order pursuant to the special plea of "issue estoppel" quashing the charge to prevent contradictory judgments; or 3) an Order staying the charges on the grounds of "prosecutorial abuse of process" which offends the community's sense of fair play. #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** MOTION FOR AUTREFOIS ACQUIT & ISSUE ESTOPPEL HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT on November 11, 1993 at Ottawa, Ontario. ********** CHARGE: S. 201(1) (2 counts), C.C. S. 202(1)(e), C.C. S. 202(1)(c), C.C. ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self TURMEL: Your Honour, there were two other motions that were filed, one in the case of Jean Lo and one in the case of Dave Booth and they were also charged with Turmel-style gaming offences and I just wonder if they could come up here and if we could do this as a team. The issues, I believe, are identical and presented from Mr. Lo's point of view, most clear and most concise. So, I would prefer if we had a chance to look at Mr. Lo's motion before we looked at mine or Mr. Booth's. COURT: Are those other matters before this Court? TURMEL: They were booked, sir; yes. The Gene Lo motion was transferred from Number Seven to this court upon the Crown's insistence, so, that, yes, Gene Lo was slated for here at the Crown's request. The Dave Booth motion which is frankly one-third of mine and Mr. Lo's, it's a very short motion, was filed for hearing on Friday and since it happens to be connected and inter-related and since the Crown had earlier indicated that they wanted the Lo argument to be presented at the same time, it just made sense we file the Booth argument to be heard here too. COURT: Are the Informations for both those persons before this Court? Are Mr. Booth and Mr. Lo here? Mr. Booth? When was your matter last before the Court and a when was it adjourned to? BOOTH: Today. COURT: In this Court? BOOTH: Yeah. He said he'd have the file brought down. COURT: And you're Mr. Lo? LO: Yes, sir. COURT: When were you last in court and were you told to come to court today? LO: I was in last Wednesday. Come to court at two o'clock today. COURT: We don't seem to have the Informations for any other matters. MARIN: No. I was served, Your Honour, on November 8th with the Lo application, which adopts three paragraphs from the Turmel application, so, I thought it logical to be listed today so we can dispose of both matters. They are the same arguments. They are the reproduction of some of the first arguments. Concerning the Booth case, I haven't seen any documents. If it was presented to court on Friday, I certainly have not seen any application by this accused, so, I couldn't be of assistance in that respect. COURT: So, if the Informations could be located, then, you'd have no objection to the matters being dealt with together? MARIN: No. No. No objection for the accused, Lo, because it's the same thing. For Booth, I would have to see it first. I have no difficulty with proceeding on all three matters, Your Honour. Mr. Turmel suggested a procedure. I would suggest that although there are three different Informations that they all be argued at the same time, there is no sense of disposing of one and then re-arguing it all for the second one and then if the arguments are going to be the same, let's hear them all in one shot and I'll respond to them in one shot and you can take it from there. TURMEL: And might I add that I don't believe Your Honour is seized of the trial at this point. If you look in the Lo affidavit, it is mentioned how, in another case in Quebec, the Judge who heard the motion to quash on insufficiency was one Judge. The Judge who heard autrefois acquit was another and the Judge who heard the trial was another. So, on the basis of that precedent and on the basis it would be illogical for you to be seized with all three of our trials over what is a question of pure law, this argument here, I would just like to point out I do not believe Your Honour is seized of our trials and, so, that that is another reason why you shouldn't worry too much about handling the three at the same time. You are not seized on this question of pure law. COURT: All right. Mr. Turmel, if you would like to proceed. TURMEL: Okay. Thank you. What I think I will do is, I will try and bring you up to date very quickly on our facts and where relevant, I will digress to show Mr. Lo's point of view and Mr. Booth's point of view. But, at this stage, I would start by pointing out that in 1989, I was running a black jack game at the Bayshore Hotel. Mr. Booth and Mr. Lo, friends of mine for many years, were there. We were raided. The game was charged with being a gaming house. And we did go to trial. Now, there was a trial of the found-ins before Judge Fontana and there was a trial of the keepers, myself and my brother, before Judge Lennox. Now, the found-in's trial was looked at by the Judge Fontana who concluded: "The evidence from the witness was that refreshments were available but there was no charge." So, sales of refreshments would have been an important matter to the Judge. The next line is: "There was no fee to enter the game on the evidence...". The next line: "There was no percentage of "'rake-off" by the house...". And turn the page, on page five, the second line, it says: "...if a player exercised his right to be a dealer, then that person played against him, that is Mr. Turmel..." So, Judge Lennox [Fontana] basically went over all five possible definitions of a gaming house and put the game I was running to test against it. Now, if we go to his conclusions on page seven, which I think is clear enough that we all believe our right to play this style of gambling of card game is established within these lines. Now, the second paragraph: "One must necessarily refer to the definition section, the new Section 197(1), where "common gaming house" is defined, and it 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." Now, if we take a look at the first four categories of the gaming house charges, the definitions, the first one is kept for gain. Now, usually, that is meant by case law to be gained out of the place, like a hotel or a restaurant or someone who sells cigarettes who nets more in the price than in the cost, whose business goes up because of having gambling activities in his place. If the place makes a gain, that is considered mainly the sales section. And he points out: "...the operation in this occasion clearly does not fall into the first four categories. That is: a place kept for gain...". So, Judge Fontana concluded, section (a) did not apply because of his understanding that gain was due to sales and that is how it has been interpreted in the past. "...or for playing games where the bank is kept by one or more but not all of the players...". So, that is section (b)(1), the exclusion section. "...where there is a rake-off...". That is section (b)(2). "...or where there is a fee charged.... That is section (b)(3). "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-section four...". Which is, the last line: "...in which the chances of winning are not equally favorable to all persons who play the game." Now, Judge Fontana eventually concluded that because I had signs on the wall that said everyone has the right to be the banker against me and that everyone must be the banker at least once against me, that given that set of rules by the symmetry of the game, if there were an advantage accruing to being the bank, that advantage had the potential of being shared back and forth and Judge Fontana concluded that Turmel-style blackjack was a series of two-man contests, multiple two- man games and on that basis having found no contraventions of the five definitions in the Criminal Code, he acquitted Mr. Lo and Mr. Booth of being found-ins at my game at the Bayshore Hotel. So,it boiled down to the no-sales, no exclusions, no fees, no rake-off, and all options that I have available to me, were also available to my friends, Mr. Lo and Mr. Booth. RESUME So, upon that basis, we now started playing, and I - of course, my case then came up before Judge Lennox and Judge Lennox simply concluded that I would assume, on the basis of issue estoppel, that he could not deliver a contradictory judgment to Judge Fontana's decision; that Judge Fontana had found no gaming house had existed because the found-ins had gotten a fair game. It necessarily meant that I had not run a gaming house, because I had not taken any unfair advantages and Judge Lennox also acquitted me. At the same time, the Crown had charged me and them, me with keeper of a common betting house. And, of course, they were charged with found in a common betting house. Now, upon a total absence of evidence of any betting house going on and we will go into the case law for betting house a little bit later, Judge Lennox did conclude that there was no betting house, because betting is book-making and the finding of cards does not constitute a prima facie case of betting house, it does of gaming house, and, therefore, Judge Fontana dismissed the found-in, the betting house charge against Mr. Booth and Mr. Lo. When came the question at the gaming house keeper trial, the Crown withdrew the charge rather than have it dismissed by Judge Lennox. So, basically, I was put in peril of the betting house and gaming house charges in 1989. Mr. Lo and Mr. Booth were both put in peril of being convicted of being found in a gaming house and a betting house and we were all successfully acquitted. A short note, I was charged with keeper of a common betting house in Quebec a couple of years later and the charges were dismissed by the Judge. So, another rational showing that you can't do book-making with cards. And finally in 1993 - now, immediately late 1991, I started playing in my home where I had been playing poker and black-jack for many years and I realize now by seeing the officer's witness statements that I was investigated at that time. No charges were laid. Then I opened a slightly larger game on Baxter Road with four black- jack tables our to five black-jack tables and two to three poker tables. And I realized by the police reports that that game was investigated and I was not charged. And, then, in November, I expanded and I moved to the Topaz Plaza in a larger premises where I was again investigated in January/February by the Ottawa Police and, again, I was not charged. And, then, in March and April, I decided to expand into other towns, Toronto, Niagara Falls, Brockville, and announced that I was going to be establishing this new type of small "mom and pop" "cheers with chips" casinos which didn't seem to exhibit any of the problems that a large casino as being contemplated and at that stage, the police did a fourth investigation and low and behold, found something wrong. Now, they haven't told anybody what it is yet and we're still trying to find out what it is they think we started to do wrong in May/July of 1993 that we didn't do wrong for the previous two years, but it is on the basis of the fact that the charges have been identically laid, that we now come before you on a motion to plead the special pre-plea of autrefois acquit. Now, autrefois acquit was pleaded by myself in Quebec in 1991 and it was refused by the Judge and since then, I found what I believe to be some quite important case law to buttress by argument that autrefois acquit should apply in this case of a set of rules being put on trial and acquitted, rather than necessarily the person who was operating those set of rules and I would like to move into the second in the case book after the Fontana decision, the case of Carrier and I believe it's in Quebec. This is a case of a pamphlet which was charged with being seditious and the pamphlet was acquitted. Now, the gentleman in question here, Mr. Carrier had been charged with distributing this allegedly illegal pamphlet and had been acquitted on the grounds that the pamphlet was not seditious. So, thereby, establishing a right to issue that pamphlet. Later on, when the Crown again charged Mr. Carrier with distributing the same pamphlet, he now argued autrefois acquit. Now, autrefois acquit, the Crown argues back that autrefois acquit only applies to situations which stem out of the same time and the same place, saying the same incident, for instance. Now, in this case, it is doubtful if Mr. Carrier was in exactly the same place and certainly not the same time when he was again charged with distributing this pamphlet, which had been formally acquitted, and I would just point out where it says: "The Crown on its side, makes a distinction between the plea of autrefois acquit and res judicata and says: "The plea of res judicata, if it exists, cannot be registered at this stage of the proceedings; the only pleas that can be registered at this stage of the proceedings...". And that is true. Only after we have pleaded can we use it. But, the last line: "The Crown adds that the plea of autrefois acquit cannot be accepted or granted because it is not a matter of the same offence." And that's dealing with the same time and same place. It was a different pamphlet on a different street corner on a different date. Now, if you go down to the next paragraph, about four lines in, it says: "It is true to say that the plea of res judicata generally serves as the basis for a plea of autrefois acquit but here it is necessary to make a distinction. If the desired conditions are proved in a manner to justify acceptance of a plea of autrefois acquit, the principle of res judicata will be decided at the same time in the plea of autrefois acquit and the two pleas will be merged into one but, on the other hand, if one is not within the conditions required so that autrefois acquit be accepted, the accused would always have the recourse of using res judicata at his trial." Now, the point is, this case of autrefois acquit, if we go down to the next paragraph, middle line, the quote, it says: "It is a fundamental principle that out of the same set of facts a series of prosecutions is not to be allowed." And, finally, the second-last line in that "...the offences are practically' the same...".[*] Now, it's the "practically" here and it could be meant to - you know - state that it doesn't have to be necessarily exactly, but, on page 78, top paragraph, fourth line, last two. words, it says: "The true test seems to be that to establish a plea of autrefois acquit it must be shown either: (1)..." - that's "either" - "...(1) that the defendant had been previously acquitted of the same offence." Well, in our case, we all have been and that has been shown by the decision of Justice Fontana and Justice Lennox, which is in the case book, or: "(2) that he could have been convicted...", Or, "(3) that the two offences are substantially the same." Now, again, it's that word "substantial" that is going to be the crux later on because we are saying that in our case of these set of rules, which Judge Fontana compared to the definitions of the gaming house, and concluded that a game run under these rules, does not constitute a gaming house. It just so happens that the offences Mr. Booth and I are charged with, are substantially the same and the offence I was charged with is substantially the same to the one I was acquitted with in 1989. So, in the Carrier case, we find that in a situation - now, if we zoom off - fundamentally, the end point is on page 85, second-last paragraph, up about six lines, page 85. The second-last paragraph and six lines from the bottom where it says: "Fundamentally, what the accused is charged with is with having distributed a pamphlet. He was found not guilty a first time and although he is prosecuted in different terms it is the same act with which he is charged," So, if we turn it over onto page 86, the very last lines, the Judge said: "...it is my duty to allow the plea of autrefois acquit presented by the defence and to discharge the accused." So, we have an example here where the time that the pamphlet was distributed and the place where the pamphlet was distributed and, perhaps, even the victim who accepted this supposedly seditious pamphlet, were all different; different sets of facts and, yet, the Judge does uphold that because in substance, the defendants had a right to distribute this pamphlet, which was judged not to be seditious, that autrefois acquit did apply. So, when the Crown argues that autrefois acquit must stem out of the original incident, I would point out that the autrefois acquit was found to apply in the Carrier case where it did not stem out of the original incident at all. Not the same time, not the same place, not the same victim. So, of all the great cases I found to buttress the argument for autrefois acquit being applicable in cases where time and place are immaterial, that is one of the best. Now, if we step over to the next case which is Deserted wives, I believe, Conneley vs. Director of Public Prosecutions. I got mine yellowed here. We have on page 1256 at the top, second paragraph, where it says, "Per Lord Morris...", 1256, second paragraph: "Per Lord Morris of Borth-y-Gest. On a plea of autrefois acquit it must be considered whether the crime charged in the later indictment is the same, or in effect the same, as the crime charged in the former indictment and it is immaterial that the facts under examination or the witnesses called in in the later proceedings are the same as those in the earlier proceedings." And three lines down, it says: "The offence must be exactly the same in law." Well, in our cases, it is exactly the same in law, but, what is kind of funny is, it is the same three people again, playing the same game. So, we have an interesting problem arising here. We have a found-in who has got a great argument for autrefois acquit. He played a game. The Judge told him it was legal for him to continue playing that game. He continued to do so. He is now back in front of this Court. And, finally, on page 1259, the next page over, at the bottom, last two lines, where it says: "The authorities show that the courts have applied the doctrine to cases not only of "the same offence" but also of "substantially the same offence," and also to cases where a conviction on a second indictment would be inconsistent with acquittal on the first." Now, I'm sure if Mr. Lo did make it to trial on these two identical Indictments, the Judge would find that, sure enough, it was exactly the same game being played, right? Okay? So, that Mr. Lo would certainly be facing an inconsistent conviction in consideration of his original acquittal. So, this is definitely, I believe, a beautiful example of why autrefois acquit should apply in this case. Now, step over to the next case, which is called In re Deserted Wives' Maintenance Act - that's the next tab - and you will see on the top right hand page, and that's page 681, it says that a certificate of acquittal: "...shall be a bar to any subsequent information or complaint for the same matter...". Not offence, "matter". Again, Mr. Lo's point of view, seated at a black-jack table facing a certain set of rules, which originally were deemed fair, which nothing changed, it would seem that his certificate of acquittal should be a bar to any such subsequent information or complaint for the same matter and this is identically the same matter. Now, the second-last paragraph on that page, three lines up from the bottom, it says: "The only evidence admissible on the issue of the jurisdiction of the former court is the formal record of conviction or acquittal." So, that once you have Judge Fontana's decision, it's really only a question of law from this point on. So, at no point, I believe, do we have to bring in any facts. We just have to look at the actual Indictments and the decision and see if it should apply. I included City of Montreal v Rothman Realty Limited there. There it is. It's the one that is sideways. Okay. This one, I believe, is very important. 1. While each day may constitute a new infraction under the terms of the section of the Municipal Charter, such provision could not apply where there had been no structural change in the premises since the accused had been previously acquitted of any violation of the by- law. 2. The proceedings constituted an attempt to revise the judgment previously rendered by one municipal judge by proceeding before another judge of the same Court without following the prescribed remedy of an appeal provided by law." Now, I believe there is a similar case here because every - if they are going to be tried - and, so far, you must understand that nobody knows whether or not the Crown is saying Fontana is wrong, or whether or not the Crown is saying 'We did Fontana wrong.' At this stage, due to other flaws in the process, nobody knows. Now, if they try to allege Fontana is wrong, well, obviously, they should've gone by way of appeal and that is why in March of this year, when I heard that the police were looking at possibly charging me, I basically made an application for an extension of time to allow the Crown to appeal the acquittal of the Fontana decision and pointed out that if they really were looking to challenge it that was the way to go and I was willing to consent to let them have an extension of time to have their appeal. And I believe that in the Crown evidence later on, one will see that that motion was made. So, they are not supposed to be trying to re-litigate an issue once it has been properly decided, and we believe that's what is going on. So, I would like to start in the very first of all, the case is an apartment building was charged with being a rooming house and was acquitted. A year later, the City charged the apartment building with being a rooming house again. The lawyer, deciding to be innovative, knowing that in the past autrefois acquit only applied to the same time and same place, said, Well, look, since time is immaterial, maybe autrefois acquit should still apply. So, he made an application for autrefois acquit and at the bottom, on the left-hand side, the last paragraph, it says: "In answer to such argument, the city replies that the complaint being for quite a different date and year, the plea of autrefois acquit cannot receive any application. And the city quotes in favor of this argument...", citing the Charter. The next paragraph on page 373: "At first glance, this argument appears correct." And autrefois acquit must be the same time and same place. "As a matter of fact, when an infraction, such as the emitting of dense smoke...is committed, each day constitutes a new infraction and in such a case 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." Now, in this case, the man had a right to rent out his apartments and not be called a rooming house. We believe that we won the right to play symmetric Turmel-style blackjack in that 1989 case. The Judge continues: "Applying this above rule to the case, if it is true that no permit for a rooming house is required for the operation of the building in question, the date mentioned in any future complaint is irrelevant...". Now, you would think that would apply with Judge Fontana's decision, if not selling anything, not taking a fee, not taking a rake-off, not excluding and not having any unfair edges - he says it is not a gaming house - well, one would think that that would be the essential basis of the existence of a right to play this game. So, he says applying the date mentioned, it's irrelevant, and it would render a plea of autrefois acquit absolutely useless. So, in other words, the special plea of autrefois acquit would be rendered useless in the situation where they insist on the time being the same, though time is irrelevant, like the case of this rooming house. "...and the defendant company would never know any peace before the Municipal Court..." s I haven't known much peace - "...and could be tried every day in the year and be placed in jeopardy for the identical offence whose merit had been judicially adjudged." Now, his rooming house was acquitted, my gaming house was acquitted, and whether or not it's being done at a different time, if the structure hasn't changed of the rules of my gaming house or of his rooming house, one would think the analogies are pretty good. So, continuing: "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 of the City of Montreal. As a matter of fact, before our Municipal Court, many cases on by-law infringement, besides their penal aspect, present a marked civil outlook and call it autrefois acquit or res judicata, and it would be illegal and against the public order to attempt to revise the judgment rendered by one municipal judge before another judge of the same Court, thus making an appeal without following the prescribed remedy set by law." Now, I believe that's what has gone on here. I believe we have the Crown, who are trying to re-try the same issue. Frankly, it will be shown it is the same issue because there was a statement of agreed facts in 1989 and even though such a statement hasn't been determined in these cases yet - you know hen we look at everything the Crown has in their ten boxes of evidence and their hundred witnesses, you are going to see that it's all been agreed to already in 1989 without any need for all this work, and, basically, that the cases are analogous. This is a question of whether the rules of a game are in violation of the law and where that game is being held and when that game is being held is totally immaterial to the rules. So, the last paragraph - second-last, the Judge says: "Notwithstanding the fact that a judgment which has finally decided the issue when the basis of the existence or non-existence of a right has been pleaded as an exception..." as we are doing - "...the city is still allowed to meet such a plea by proving that subsequent modifications or changes have created a new status preventing the judgment so alleged from receiving application." Now, I would say if the Crown has some sort of modifications they allege we've done, some sort of modifications that do push this into the realm of a gaming house, they should have brought it out. And especially in the case of Mr. Lo, who is sitting here knowing that all he did was play the same set of rules in both places, and he is on trial again. Now, had the Crown made some sort of allegation or some sort of specification about what the structural changes had been, maybe it wouldn't apply, autrefois acquit, for Mr. Lo at this stage. But, since the rules of the game, the structure were identical and there doesn't seem to be any issue that they were not identical, I believe that the autrefois acquit, if it applied in City of Montreal v Rothman Realty Limited, should apply to us. So, in the last sentence, the Judge says: "In the present case it was admitted that no structural changes had occurred since the last judgment and consequently the Court upholds the plea of autrefois acquit...". So, at this stage - you know - if - when the Crown gets up, if they wish to allege that there have been structural changes, it will be a whole new ballgame. Then I would probably grant autrefois acquit may not apply. But, considering that after four months we have an absolute dearth of information about what structural changes had been alleged to have been different, we're now faced with what I believe is a perfect analogy of why autrefois acquit should apply and I only have to throw in my last perfect example, because every time I have spoken to lawyers and I've said - and they've all said, 'No, you shouldn't try autrefois acquit', I've always given them the example of Wayne's Weiners, which is an example of a man who has a little weiner stand, Wayne's Wonderful Weiners, doing a great business. One day the Mayor comes along, buys a couple, gets indigestion and busts him for having too much fat in his weiners. Now, he waits six months, he goes broke, his wagon is impounded, he finally gets to trial, he's got an affidavit from his butcher saying, hey, only 48 per cent fat and he's got an okay from Consumer and Corporate Affairs saying, hey, it was only 48 per cent fat and his receipt is acquitted. So, after a while, he gets back in business, he's going again. The Mayor comes by again, has a couple of dogs, gets indigestion and busts him again. Now, I've asked every lawyer I've ever met, I said, "What type of legal recourse are you going to tell me that Wayne can use to abort these charges, when he knows he's going to win because the essence of the issue has already been solved?" He's going to walk in with the butcher's affidavit again, Consumer and Corporate Affairs registration of his formula and he's going to be acquitted again. So, I say, "How can the man abort this thing without having to wait for another useless eight month delay?" And all I get from every lawyer is, "There's no way." So, I say, well, maybe this lawyer in Montreal wasn't so dumb to think autrefois acquit should be extended to cover those cases where nothing can help. And, so, I say the analogy with Wayne's Weiners is identical to ours. You know, between us, we have 150 employees out of work, who had jobs, who were paying taxes, who were a credible alternative to what the government proposes, to what the government is going to go bankrupt on, and after a year and a half of quiet operation, I think we quite proved that this is the way it's going to have to go, if you want it to be run cleanly in small towns. And, so, on that basis, we want to throw in the argument that autrefois acquit happens to be the only special plea which can eliminate - it's the only special plea, okay. We don't want to have to wait eight ruinous months of delay and therefore, the only plea, which is a special plea, which can be made before trials and Pre-Trials is autrefois acquit and on the basis that Rothmans found that when time is immaterial, autrefois acquit can still apply. And on the basis of Carrier when he found that not only would the time and the place and even the victim be different, since they are immaterial to the essence of the question, the validity of the pamphlet, similarly the validity of the formula, the recipe, similarly the validity of the rules structure of our game, autrefois acquit has to be the absolute perfect answer to solve our problems, and it's our only answer. There is no other way for Wayne not to suffer another ruinous eight months wait before he gets his weiner wagon back and he wins. And I'm saying on the basis that the Crown has not alleged, has not indicated and has not written down any structural changes which have been alleged to have been infractions against the Code, on that basis, we would make the argument that in Mr. Lo's case, autrefois acquit should certainly apply. He was already acquitted of playing this game and he has now been charged with playing exactly the same game. In the case of myself, I've already been acquitted of giving Mr. Lo this fair game and I've now been again charged with giving others this fair game, even though he wasn't charged. It just so happens in 1989, Judge Fontana could look at it from the found-in's point of view and conclude, everybody got a fair game, therefore, Lennox had to conclude therefore, John Turmel didn't run a unfair game. At the Topaz raid, they didn't charge any found-ins. Now, they're going to be able to allege John Turmel made money without my being able to say, 'Yeah, but a Judge said all the found-ins got a fair game.' They've eliminated the proof that I had available to me in 1989 by not charging any found-ins, but, fortunately, good luck, they went and charged another perfect clone of the Turmel-style rules with a found-in now, who happened to be in 1989, a perfect autrefois acquit. So, I believe that it is an absolute injustice that Mr. Lo should be in this courtroom. Mr. Lo is a professional, has a degree in science, a druggist, and I think him being dragged through the courts like this is quite a shame, especially when it happens to be on exactly the same charges on exactly the same games. So, now, that, I believe, are the submissions with respect to the plea of autrefois acquit made by Mr. Lo and myself. Mr. Booth can't use autrefois acquit because he was formally acquitted of found-in. Now, he has been charged with keeper, but, for myself and Mr. Lo, we would contend that autrefois acquit is the most just way, unless, of course, the Crown wishes to allege a structural change in the rules of the game. Though, the rules posted on the walls didn't change. Would we be so stupid as to take rules that Judge Fontana had already accorded legal status to and change them? So, on that basis, those are the arguments for Mr. Lo and myself on the autrefois acquit. Now, I'm just wondering, before we get onto the question of issue estoppel or finding the prosecutorial abuse of process, would we - would the Crown - should the Crown respond now on autrefois acquit, or, should I just throw everything in and he handle everything after? Okay. COURT: You're on a roll. TURMEL: I'm glad you think so. Okay. Now, on the case of issue estoppel now, I would like to go into the Jewitt case, which should be - oh, I did include the Judge Bonin decision which was the decision out of Quebec where I was acquitted of running a betting house. That will be coming up later, though. I think I have one more, the Wriqht case. It's the last one. So, after the - there is a sideways judgment with some french stuff, right after that. Right after this, is the next one. The french stuff is Judge Bonin and staying away from French can only help us. They only have one word for "win" and "gain" in french, "gain". So, it was very difficult for the Judge to distinguish between the two. And that would account for his reasons. There was one other one, just before Jewitt. The one just before Jewitt is called Wright. This one here. Okay. You yellowed in the same paragraph I did. It must've worried you. Okay. It says: "Apart from the special pleas of autrefois acquit and autrefois convict in which cases the Crown looks only at the offences charged in the compared counts .." - so, there is no evidence here - "...the defence of res judicata, or issue estoppel, applies in criminal cases and when that defence is being considered the area of exploration is greater and an accused may show that the same element was decided in his favor in previous criminal proceedings which is in issue on a subsequent trial by reference to the course of the previous proceedings..." Now, down - continue just before the cases are set out at the bottom of that page: "In light of the course of the previous conspiracy trials, and the facts either admitted or established by evidence at such trials, the combined effect of the acquittal in one case and the conviction in the other created an estoppel again the Crown with respect to the charges for the substantive offences...", And the use the word "substantive", again. So, they are talking substantial stuff. If you turn the page, page 338, one, say, two paragraphs where it says, "The doctrine is different...".... "The doctrine is different from the Pleas of autrefois acquit and autrefois convict. Autrefois acquit applies where there accused has been previously acquitted of the same offence of which the accused is subsequently charged. Whether it applies where the offence charged is not the same but the crime committed is essentially the same, is not so clear..." to this Judge. And, finally, on page 341, if you can turn over to page 341 - okay - actually, 340, second-last paragraph, four lines in, one, two, three, four lines in. It says: "...that if the evidence adduced in the trials is the se substantially, then it is the duty of the Judge to tell the jury that they should not find the accused guilty. "The Courts should abhor inconsistent verdicts." Up at the top of the next page, 341, in the same text: "As a general rule a judge should stay an indictment...", and, of course, we're asking for that in the last section of our motion, "...when he is satisfied that the charges therein are founded on the same facts as the charges in the previous indictment on which the accused has been tried, or form or are a part of a series of offences...", and, this is the only time we hear about part of a series, "...of the same or a similar character as the offences charged in the previous indictment." Now, we shoot down to the next paragraph: "From these authorities, it is evidence that apart from the pleas of autrefois acquit and autrefois convict, the principle of res judicata and the doctrine of issue estoppel apply in a criminal case where there are inconsistent verdicts or where...", skip a line, "...the same point was determined in favor of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial...". Now, that is what is so frustrating about these indictments here. We don't know what the Crown is alleging we did wrong. And that also allows us now to come before you on an autrefois acquit and say, 'Hey, had they said in 1989 that you were charged with section (b)(4) of the game and definitions and this year, section (a) or (b)(1), we couldn't come in and say they are identical charges.' But, because they chose to be imprecise, we can come in and say they are identical charges. They're mere imprecision makes them identical. So, this thing, whether or not the game we were playing was a gaming house, was previously determined and, therefore, to avoid that contradictory decision, is the reason autrefois acquit should apply. Now, we skip over to the next one, which is the Jewitt case. All right. And if you look at the bottom of the first column where it says, "Held. The appeal should be allowed." It says: "In a criminal case, a trial court judge has residual discretion to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. Such power, however, can be exercised only in the clearest of cases." Now, in 1989, there were six of us in the room. So, it's not as if the community were very upset or the sense of fair play were very besmirched, when they really weren't aware of what was going on in our little drama, but, I mean at Topaz, you had almost 5,000 people come through the doors. And you have 5,000 people out there who know they all got a chance to be the bank, who know there were no sales, who know there was no fee, no exclusion, no rake-off and they had the same chance as we did. So, I think considering there are, at least, 5,000 people, not counting the hundreds of thousands who read the newspaper articles, big front page newspaper articles about how we were doing it. I mean, if you read these newspapers, many people could learn about gambling and how the gambling laws worked, but, I would say at this stage, many people out there think that there's been a pressure of prosecution here. Most people were aware when we were found not guilty and they were also aware of why. So, that this is a case where I believe that community sense of fair play has been flouted and I would suggest that many people out there think this is an abuse of process. This is a vexatious prosecution. What this boils down to is the fact that the Judge has the power to do a stay. Now, if you turn to page 138 in the very last paragraph, first column, where it says, "Kerwin, C.J. stated..." and you go down one, two, three, four, five lines of that page, 138, of that decision and it says: "...it was not a judgment on procedural grounds owing to a defect in the indictment and therefore if the accused were charged subsequently...they could plead autrefois acquit. It was a decision on a question of law alone and being a judgment or verdict of committal was appealable...". Now, in our case, because Judge Fontana found a total absence of evidence, that was judged to be a question of law, the acquittal. The acquittal was not a question of fact whatsoever. He judged - sorry - Fontana judged it was a total lack of absence of evidence which made it a question of law. So, again, this is another question of law and we have here, what I believe, is an objection to a question of law and that is why the Crown should have gone by way of appeal. Now, if you go to the next case, that's the Boross case and that's on page 484, the next in line. Page 484, second-last paragraph, where it says: "On appeal wide challenges to the conviction were raised. As well as the question of whether Boross's recantation extinguished any prior intent to mislead, it was urged that the prosecution should now be judicially stayed as an abuse of the court's processes; that the issue prosecuted was answerable by the defence of issue estoppel, and lastly, that the conviction contravened section 11... dealing with repetitive prosecutions." Now, I believe that's what we have here, is these repetitive prosecutions. If we turn the page now, to page 487, where it says, "Issue Estoppel", in the middle of the page about, down a little: "It would seem that a plea...", Now, these are all tied together. We're arguing abuse of process. We think that when this is over, someone should be doing time, a couple of days anyway, on a hard - an issue a process, issue estoppel, autrefois acquit are all inter- connected. They have their roots in each other basically. It says here: "It would seem that a plea of abuse of process in response to a criminal prosecution will be more viable - at least will receive better audience..." - I hope - "...- when grafted to some other legally advanceable defence or answer. In Amato, supra, it was joined to entrapment; in Tracey and R. v. Gordon, [1980] 3 W.W.R 655, it was advanced in conjunction with res judicata." Well, that's what we're doing. We're going to be advancing abuse of process in conjunction with autrefois acquit. I mean, obviously, if we shouldn't have been charged and they have nothing new, there has been an abuse of the process that went on here. A hundred and fifty people did have their rights to employment violated and something should be done. And that's the Boross case where it basically does point out that there is a connection between abuse of process being linked and I'm just pointing out they did mention one of the things it could be linked to is what we are, in particular, pushing. If we go on to the next case, now, which is Grdic a little small text, onto the second page, third column, third paragraph, where it says, "The First Limitation". "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 DeGrey C.J., an attempt "to impeach from within". Indeed another judge, or conceivably the same judge, hearing the subsequent perjury charge 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." So, again, there's another argument that these things should not be done here with a new process, but should have been appealed and should've been appealed late if it was that important to the Crown, especially when I consented to it. So, another Judge is being asked to conclude differently on the same structured house rules and I would hope that the chances of him concluding differently are zero, when I consider Judge Fontana's ruling to be very clear and enlightening. Okay. The next case is the Keyowski case, another abuse of process over multiplicity of proceedings. This just establishes that the stay of proceedings is a remedy for abuse of process. It just basically points out it was established in Jewitt that you have the power to stay the proceedings if you find they are in an abuse of process. Now, the next one is the Lennox case where he says, clear enough: "COURT: Well, if you were to adopt the submissions made on the previous trial..." his is to the Crown- "...I would adopt the Reasons of Judge Fontana...". Another paragraph downwards, it says: "COURT: No. I'm being somewhat facetious. I would have difficulty, as I indicated earlier, disagreeing with Judge Fontana, simply on the basis of comedy and I can appreciate you may wish to preserve certain rights, but, you would have to be very persuasive to convince me that I should decide otherwise." If we now turn to page three, bottom, last two lines: "MR. WARD: If I understand the decision, if the finding on the found-ins trial was that there was no gaming house, then there cannot be any keepers either, as I see it. "COURT: I would have difficulty, because of that finding, in rendering what would essentially be a contradictory verdict on Miss Cote, there is no material difference in the facts which I heard...? "MS. COTE: I don't believe so, Your Honour." So, he said he proposes to follow the ruling of Judge Fontana. Page five, at the bottom there, it does point out the betting house charge was dismissed by Fontana, fourth line up. And if you turn to page six, now, two, four, six lines down - five lines down, it says: "I think my friend was intending to withdraw that charge." So, that is when the Crown, at that point, withdrew the betting house charge against me, but, since I was put in jeopardy, I do believe that autrefois acquit should therefore apply. And, finally, at the very bottom of page seven, where he says: "I am aware of the decision of Judge Fontana and of its result. 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." Now, I mean, that's pretty rare, you get the Crown to walk into a case with an absolute total absence of evidence, then and now, and, so, again, I think that would be another reason for abuse of process. If they had had something new - you know - something legitimate, well, perhaps, we would consider that as being a difference, but, I have yet to be aware of any structural differences and they haven't made me aware. So, now, we want to go over to Rourke, another one that is saying that the Court does have the power to stay an abuse: "Every court having criminal jurisdiction has the power to stay proceedings which are an abuse of process or oppressive and vexatious." So, we're just establishing I have a right to do that. it says: "So, it is here. In a broad sense, pleas of autrefois convict and acquit, and of res judicata and issue estoppel may be said to be aspects of abuse of process... First, a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English criminal law and I shall illustrate this with special reference to the framing of indictments. Secondly, if the power of the prosecutor to spread his case over any number of indictments was unrestrained, there could be grave injustice to defendants. Thirdly, a controlling power of this character is well established in the civil law. His conclusion from his examinations of those three matters was stated in these words: The result of this will, I think, be as follows: As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with? when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or a part of a series of offences of the same or a similar character as the offences charged in the previous indictment." And, of course, of the same or similar character. So, nowhere out there do we have to be talking about it being identical offences for the abuse of process to apply. And that's the end of that one. Page 317, in Young; 317, second paragraph, last five lines. It says: "The principles or standards of fairness essential to the attainment of fundamental justice are in no sense static, and will continue as they have in the past to evolve and develop in response to society's changing perception of what is arbitrary, unfair or unjust." So, when you consider how many people are aware of just what went on at my gaming establishment, I think that this applies. And, finally, you have the right to do that if it's an abuse of process. Here we go, page 329, "Conclusion". "Conclusion: I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings." So, this keeps being repeated by everybody. That's the standard line. And compelling us to stand trial - you know - on the same issues would, I believe, be that same abuse of process. And, finally, that has to do with the autrefois acquit, abuse of process and issue estoppel, is all the case law we could find to buttress our case for one of these applying, preferably autrefois acquit. I would just like to finish at this stage with some betting house information. Again, it is a question of law because it is arguing an absolute total absence of evidence and just as in 1989, it was established that you cannot do book-making with cards. Cards constitutes evidence of gaming house, not betting house. And just like in 1991 where the charges of book-making, betting house were dismissed when I was using cards. Lo and behold, we're faced with the same red herring again. And I would like to now get over to the next case, which is Ball. Okay. These last few will be short and quick because they are pretty straight-forward. In the Ball case when you go down to the second - third last paragraph: "In view of the fact that playing cards were found on the premises..." - so, this clearly establishes this is a case of playing cards being the gambling device - it says: "...Barclay, J. explained that he did not consider that playing cards came within the terms of s.986(2) be reason of the fact that they were specifically mentioned in the preceding s.985..." - whereas this other one ...dealt with both a common gaming house and a common betting house." Now, this is an old case. If we go down, now, to the fourth-last paragraph where it starts with, "The old wording is clearer...", third line, end of it, it says: "...the particular type of equipment found must be the type of equipment associated with a common gaming house if the charge relates thereto or in a common betting house if that is the basis of the charge." In Lewis v. The King, which we will bring up later, he mentioned: "that the finding of playing cards does not constitute prima facie evidence that a place is a common betting house." And, of course, I would point out that there was nothing going on anywhere in our games, other than cards. You can't do book-making with cards and, yet, they threw it in the end. Here we are, again, Mr. Booth and myself, again, facing book- making with cards charges. And, of course, we're going to assume that when we get there, they will be thrown out as quickly and as arbitrarily as they were in the past, simply because the case law I'm going to be reading to you makes things very, very clear. I'm still shocked that they hang on to this charge, but, Lewis v The King finds: "...that the finding of playing cards does not constitute prima facie evidence that a place is a common betting house. It may also be said that this is drawing a very fine distinction...", but, it's got to be treated with particular care." Now, at the next tab, we go into R. v. Jarman and I put this one in here strictly to give the Crown and the police a good idea of how a good book-making charge should be laid. I mean, as an example of how a book-making charge should be laid, they could learn a lot if they study this one. Jarman. In the indictment in Jarman, they have, "unlawfully did keep a common betting house, did record or register bets." Now, that's a key ingredient, the recording. That will be brought up a little later. Unlawfully did engage in book-making, did did engage in the business or occupation of betting. They've hit us with this, of course. And transmit information. And the last line: "The Crown also furnished particulars of these charges in the following terms...". And take a look at the particulars. You've not constitute prima facie evidence that a place is a common betting house." And, of course, I would point out that there was nothing going on anywhere in our games, other than cards. So, to be facing all these betting house charges, seems - especially after the Crown had already received - and it's part of their evidence but, Your Honour, it's not as if I was hiding - you know - why and how I was doing it - you know - and the Crown had this hundred key of information to read all about why book-making - you can't do book- making with cards and, yet, they threw it in the end. Here we are, again, Mr. Booth and myself, again, facing book- making with cards charges. And, of course, we're going to assume that when we get there, they will be thrown out as quickly and as arbitrarily as they were in the past, simply because the case law I'm going to be reading to you makes things very, very clear. I'm still shocked that they hang on to this charge, but, Lewis v The King finds: "...that the finding of playing cards does not constitute prima facie evidence that a place is a common betting house. It may also be said that this is drawing a got a page full of information. Take a look at what I've got. You read it. Book-making. I mean, does it say I recorded debts? Does it say I had chips? Does it say I have lines with odds? Does it say I made telephone id I transmit? Nothing. So, I mean, when you look at the two, when you look at how this Information was framed and how the one I'm facing is framed, you see that the one I'm facing is pretty sub-standard compared to this, and this was an old case, I believe, back in 1972. So, 21 years later, they still can't even do as good as these guys here. You know, this is clean, efficient, you get information out of it. I got nothing. Why? Because they' have nothing to add. So, at the next tab, we're moving into the good stuff now, Lewis v The King. And right in the very first information, the bottom of page one, page 268: "In order to prove that a place is a common betting house it must be established not only that bets are recorded...". Now, I mean, that's the inherent gist of a betting house, the recording of the bets. Now, if you will notice the charges against me, recording a bet, can be a betting house charge. It's even included in amongst all the gaming house definitions. I have some definitions for the different crimes. You will notice now that they have recording bets, which is one of the (b)'s. Of course, receiving bets, recording bets, registering them, transmitting, paying, you could have one house that records, one house that receives the money, one house that registers it, one house that transmits them, one house that pays the money, and that point is, either one of them would all be guilty of book-making, okay? But, none of these things have been alleged. Absolutely none. They are going in like 1989 and like 1991 with nothing. Zero. You know, because there was no book-making. I mean, why would I want to endanger my friends, once we found a legal way of playing cards, by doing book-making? But, anyway, the Crown threw in the book-making charges. It makes it look bad from people on the outside who don't know any better, but, in this case, Lewis is very, very clear. He says that not only you have to prove that there has been recordings - so, that's primordial, that's number one. You've got to prove the recording of bets before you can allege a betting house. But, then, it's got to be kept or opened for that purpose. Now, they're alleging here that I opened my Topaz card house for the purpose of recording bets, which is the ultimate charge in a betting house. And, of course, since that is not true, one wonders who went and swore this Information to a Justice of the Peace, that there was book-making going on, when there wasn't? Continuing: "In order to prove that the accused is the keeper of such premises it must be established that he was involved in the care, government and management..." thereof. Now, zoom down to the third-last paragraph where it says: "In order to prove that a place is a common betting house it must be established not only are bets recorded, but that the place in question is opened or kept for that purpose." So, the recording of bets, which is just one of the (b) sections in today's Code, was considered a primordial ingredient and you will see why later in the Pilon case. Turn to page 270: "Under that section when any cards, dice, balls, counters or other instruments of gaming used in playing any games of chance, et cetera, are found in any place suspected of being used as a common gaming house, entered under a search warrant, it shall be prima facie evidence that such premises are used as a common gaming house." Now, I grant we had cards and nothing else. And I grant that - you know - on first view, it does look like a gaming house and that should be the charges we should be facing. And it does show, page 271, the next page, one, two, third paragraph, about eight lines down where it starts with, "The onus...". "The onus was on the Crown to show that this equipment was kept for the purpose of betting." I'd love to see the Crown show up how he is going to use a deck of cards for the purpose of betting. Okay. So, that's Lewis. I think that's pretty clear. But, now, the winner explanation of all is at the next tab, which is the Pilon case. The Pilon case, the second page, third paragraph from the bottom, small text, it starts in the middle, where it says, "If these parties..." - I believe it's page 343, but, you can't - anyway, it doesn't show, but, anyway, it's the second page, third paragraph, it says: "If these parties are to play an active role in the event; that is to say, if the 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." So, that means, if I'm betting on a horse race, or I'm betting on a football game and there is absolutely nothing I can do to influence it, that's betting. That's bookaking. They record the bets because it's going to be decided later when the outside information comes in. He says if I am wagering on something that I, myself, can affect, like a card game, a dice game, a backgammon game, a bridge game or something like that, that is gaming. Now, of all the case law that I've looked for to find someone who can best explain the difference between betting and gaming, I think that this is it. It's very simple. If you're betting on something you are controlling - you know - like cards, things like that, that's gaming. If you're betting on something out of your control, that's betting. Pretty simple analysis, pretty simple distinction between the two. Finally, I would point out on page 348, first new paragraph: "So, the game of poker, whatever may be wagered upon it, is not a crime...". I would like to establish that right away because many people have thought that if a player is a skillful professional and he runs the game, that that would be illegal. But, if he's a loser and he runs the game, that would be okay. That seems to be the Crown's - the general gist of his consensus is, if you're good and you expect to win, well, that's illegal. But, if you're bad and you expect to lose, that's illegal. So, it means I wouldn't be able to run a gaming house, but the Crown would. And I don't think that's fair. Anyway]s.... That was - I had to lighten up a little bit anyway. We've been in pain for four months with 150 people, no jobs. You know, it's anyway, finally, we're going up to the Pouliot, the next tab. The Pouliot case. Okay. On the right hand side, the second paragraph from the bottom, it says that: "Attorneys for Pouliot made a motion to quash the Information by reason of the total absence of an essential element...". And, we are, today, Mr. Booth and I would like to have all betting charges quashed on that absolute absence of that element. There was no betting going on, no recording element, no transmissions, and I think it would only confuse things to go ahead at this point with betting charges still alive. And, then, finally, in the last case of Ruskoff, Marbella and Damore, which was a Supreme Court of Canada case - I would also point out that it was argued by Mr. Gordon McNab, who was one of the lawyers I engaged in early March when the police started to found - like, they were starting to get upset over how things were going, and I engaged Mr. McNab for an opinion on the legality of my operation and he gave me a positive response and he didn't think - he said Fontana was correct, basically. I also got an opinion from a former Judge, Judge Young, in Niagara Falls, who also said Judge Fontana was right and should be followed, and another lawyer. So, I did go out and get several lawyers opinions before I did continue playing, even though I had had some rumors that the police were looking for something to argue about. I would point out now that if we zoom down to page 506, second-last paragraph, three lines from the bottom - very similar to us. It says: "He said that, on occasion, card games were played by members for money, but no one took a rake-off, nor did anyone have a monopoly on the deal in any game, nor did the house take a percentage." So, these guys were playing cards. They were gaining, but they were charged with bookaking. And the Judge ruled on the next page, second paragraph: "The learned trial Judge found, on the basis of evidence...that the bets made by the players were private bets between individuals not engaged in any way in the business of betting...". And, of course, that is the same thing that Judge Fontana found about our game. He even referred to this case when he ruled that Mr. Lo and myself and Mr. Booth and myself were simply private individuals who were betting amongst ourselves in two-man contests. The next page, page 508, first large text, is: "It is to be noted that the words "gaming equipment"...include anything that is or may be used for betting. It was submitted by counsel for the respondents that evidence that a place was found to be equipped with "gaming equipment", but which is not, or may not "be used for betting" is not proof that the place is a common betting house. I agree with that submission." So, the fact that they came in and they found a whole bunch of decks of cards, does not prove that we managed to do any bookaking with these cards. "Keeping a common gaming house...", the Judge continues, "...and keeping a common betting house, are distinct offences." A distinction which was laid out in my original newspaper text the Crown had, but, which seems to have eluded them, unless they have an alternate interpretation they won't fill us in on. Again, he quotes Lewis v The King, which we read earlier and if you look on page 509, that's the right hand side now, second paragraph - oh, he's still quoting from Lewis where we had earlier said: "...that the particular type of equipment found must be the type of equipment associated with a common gaming house...". Now, cards, have historically been associated with a common gaming house. Cards have never been associated with a common betting house, except in my last two cases. The next paragraph, it says at the conclusion, the second-last line: "...that the finding of playing cards does not constitute prima facie evidence that a place is a common betting house. It may be said that this is drawing a fine distinction but the creation of a presumption as serious and difficult to rebut based on the finding of a simple pack of cards...makes this necessary." So, that's basically the case law that we've gone through, trying to establish that, first of all, the betting house and the gaming house charges should be quashed on the grounds of the special plea of autrefois acquit. They should - or, they should be quashed on the grounds of the special plea of issue estoppel, to prevent contradictory judgments, which, I believe, would be rendered if a Judge did conclude that either Mr. Booth or myself were operating gaming houses after Judge Fontana had concluded we were not, or, I was not. And, finally, that these book-making charges, all the bookaking charges are absolutely in an absence of evidence whatsoever for book- making and on the basis that they've always lost, in 1989, with Fontana and 1989, with Lennox, they withdrew, and in 1991 with Bonin, they lost, I just don't think it's fair to muddy up the waters by having us move in and face these charges. And for that reason, we would like to have the betting house and betting charges quashed on the grounds of an absolute zero chance of success and conviction, when you cannot do book-making with cards. So, on that note, I would only point out that Mr. Booth ran an absolute, meticulous, even better Turmel-style casino than I did, because after I had been raided, we took a look at what the police had alleged I might have done wrong. They thought I was selling cigarettes. They found out the day of the raid, it was another guy who ran the machines. They didn't find out the day before the raid, they found out the day after the raid. So, half their reason for raiding was gone because they didn't do their investigation correctly. They assumed I was making the profits from cigarettes and being so stupid as to do something that could get us all busted. Or, number two, there was an allegation about an unsplit chip at a poker game, which will have to be rebutted, I assume, at some point, had they thrown it in the charge. But, again, Mr. Booth, having been given the benefit of the minor allegations, was perfectly capable to avoid them a hundred per cent and ran an absolutely Turmel-style casino. So, we're sitting here with Mr. Booth and Mr. Lo, who have both been acquitted of these similar charges before, who now face - you know he onus of government oppression, or prosecution, for exactly the same offence they were acquitted of doing before and, as well, I think it's pretty reasonable to assume that the guys who were formerly acquitted, were smart enough to understand why Fontana formally acquitted them and it should be rather easy for us to have stayed within those strictures and not do more than Fontana had permitted. So, I would simply say that it's new law we're asking you to do here. When the Judge in Montreal did say, 'Well, okay, I'm going to extend issue estoppel to a rooming house at a different date', he was creating new law. When a Judge said, 'I'm going to extend...' - not issue estoppel, autrefois acquit, when a Judge said, 'I'm going to extend autrefois acquit to a pamphlet...,' independent of where, when and who, well, that's another Judge making new law. And I'm saying, frankly, I think all the doors have been opened for us to use this now. We have the example in Carrier where the Judge ruled time and place were immaterial. It was a pamphlet. And you have the Judge, Lachapelle! in City of Montreal v Rothman Realty Limited, who said that time is irrelevant. Autrefois acquit should apply. And we're simply saying that in this case, Wayne's weiners - if Wayne came to you and said, 'Hey, my weiners have been found not guilty before. The formula is the same formula. You know, time and place don't matter. What corner I was selling and when I was selling them, the formula was good', I would say that just as the pamphlet was acquitted and autrefois acquit applied and the rooming house was acquitted and autrefois acquit applied, I should be acquitted. I mean, I was acquitted. And autrefois acquit should be applied. And Wayne's weiners was acquitted and he should also have it applied. We all sit in the same boat saying autrefois acquit is the only way we can get justice and have these charges thrown out against us quickly and if you find that is not barred to the prosecution, I think that issue estoppel would be the very next best block to such an abuse of process. And, finally, the most damaging of all rulings, would be a ruling that we have a prosecutorial abuse of process. And I would think that if you took a look at the public mischief charges, you would see that when the Crown and the r the police did go to their expert statistician and gave him a set of false odds and allege that I was taking - that I was giving people a two-to-one pay off on a third- to-one shot, a thirty-three per cent advantage, which was not true, and then try and base their case on this expert witness coming back and telling them, 'On the set of odds you've given me, I'd advise you to go and bust him as a gaming house, I would say that when one considers the falsehood that went in to getting their expert to advise busting me, someone ought to be charged with public mischief at some point. So, we have here, a lot of people interested to know the truth about our case. We have done our very best to stay within the strictures of Judge Fontana and, frankly, given the trivial nature of those constrictions and given the trivial effort it took us to abide by them originally, I would see no alternative but to say that autrefois acquit should be extended to this case of gaming house, as well as rooming house because time and place or immaterial to the questions of structures and the Crown has not alleged any structural change. Thank you, Your Honour. MARIN: I'm just wondering whether the two other gentleman had anything to say prior to the answer. COURT: Mr. Lo, do you have anything you would like to add? LO: Yes. I was acquitted of the charge of playing black-jack, 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. COURT: Mr. Booth? BOOTH: No, I just feel that we offered the same thing as what Mr. Turmel offered before, so, we felt that it was a straight game and feel that it was okay. COURT: Mr. Marin? MARIN: Much has been said by Mr. Turmel as to how proper it was to prosecute these types of charges and how it was, in fact, improper. And in reviewing his case law, in the case of Lewis, I note that the lawyer acting for the Crown in that case has the name of Antonio Lamer, so, I'm in good company I would think. Your Honour, the first thing that has to be decided is even if you give my friend's submissions, if you put them in - or, rather, the accused's submissions, in their best light, it comes down to this: In 1989, the betting charge that he was facing was withdrawn, the gaming charge was dismissed. So, his whole argument for autrefois acquit is that he was in peril, that there was jeopardy, he was put in jeopardy previously. The case law is clear in my respectful submission, that once a charge is withdrawn, that the accused was not dismissed, or the charge was not dismissed or the accused was not acquitted. There was no such jeopardy. And that is a pre-requisite to the defence of autrefois acquit. MARIN: Your Honour just before I continue on my the submissions that I started to make, Your Honour will note that some of my case- book, actually, the total of five cases, deal with the sufficiency of the Information. The accused has alluded to that in his submissions today as part of the materials he has filed before the Court, but, Judge Nadelle has previously entertained a motion on the sufficiency of the Information, has ruled that the Information should not be quashed, that, in fact, it is sufficient. I had expected the accused to present that ruling today, but he hasn't. It's my submission on that particular point that the matter has already been decided by this Court and that no further argument should be entertained. I didn't argue that motion and I was not there when the ruling came out, but, I've included some of the cases that I'm told were referred to by the Judge in his ruling and I won't be making submissions on the argument of sufficiency as I, in my respectful submission, submit to the Court, it's a moot point at this stage in the proceedings. The argument was that Mr. Turmel was charged with charges of betting and gaming. The betting charge was withdrawn. The gaming was dismissed. The case law is to the effect that because it was withdrawn by the Crown, that the accused was never put in peril, or in jeopardy. And I refer Your Honour to the case of Petersen, which is the leading case in this area of law from the Supreme Court of Canada. The Supreme Court of Canada adopts the following sayings: "In my view, a criminal trial commences and and an accused is normally in jeopardy from the moment issue is joined before a Judge having jurisdiction and the prosecution is called upon to present its case in Court. The person accused continues in jeopardy until final determination of the matter by rendering of the verdict. I do not consider that Dickson J. imposed by those words a requirement that some direct invitation must be issued to the Crown to call evidence before it could be said that the issue had been joined and the accused placed in jeopardy. The authorities he relied upon in his reasons support the proposition that once a plea is entered before a court of competent jurisdiction the accused is in jeopardy." If it withdrawn or pleas entered, therefore, he is not in jeopardy. So, even when it's quashed, it's quashed prior to plea, the Crown can still re-lay because no plea has been entered. So, again, it goes much further than withdrawn, even when it is quashed before a plea. The accused is not in jeopardy because no plea is entered, the Crown is not called upon to present evidence and that, in my respectful submission, puts that matter to rest. So, we are really dealing here with not the betting charge, because the betting can be put forth to the Court because Mr. Turmel and the others were not put in that jeopardy as I understand it. So, the issue left is the gaming charge. The gaming charges were dismissed by Judge Lennox because of the reasons of Judge Fontana. The argument that is advanced on autrefois acquit by the accused is that because he runs the same operation, basically, and the charges were dismissed on the basis of the proceeding operation that, in fact, it would be a bar to any subsequent prosecution. In a nutshell, that's how I understand his argument to be. It is my respectful submission that the test for autrefois acquit is set out in the Criminal Code under section 609 and the test under 609 on issues of identity reads as follows: "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...", et cetera, "...the judge shall give judgment discharging the accused in respect of that count." That is the provision in the Code where my friend, I assume, is bringing his application for the charge to be dismissed on his special plea. I've presented a number of cases, Your Honour, that stand for the proposition that the requirement is that for the special plea to apply, we are, in fact, dealing with an offence that has to occur within the same time period, the same type offence must be charged; we're dealing with the same transaction. In effect, the spirit of this whole defence is to not allow the Crown to have the same kick at the can when the same transaction is involved. The substance of the section 609 is that the Crown is prohibited from re-trying the issue when it's substantially the same matter. Now, are we dealing with this situation here? In my respectful submission, we are not for a number of reasons. Firstly, the Information reads quite clearly, a different era. The location of the establishment is different. And the series of transactions are not the same as were before the Court in 1989. It is not the same transaction. It is not the same rooming house. It is not the same weiner and it is not the same pamphlet. And I may add this, Your Honour, in the last hearing in court, it was made clear that the Crown was not even relying on the same section of the Code. It is not even the same offence. The offence listed are offences of gaming and betting, but the definition that the Crown is relying on... And this was put on the record, as I understand it, by Mr. Dandyk at the last appearance, Your Honour, that the Crown is relying on the definition of common gaming house as found in section 197(a) of the Criminal Code. It was not decided by Judge Fontana that it did not form part of his reason for decision.[N] The common gaming house is defined as in either/or scenario. It's either (a), which defines it: "(a) kept for gain to which persons resort for the purpose of playing games, or (b)..." And in (b), it lists four ways by which a common gaming house can be made out. And the Crown had relied previously on (b) [N] and the Judge found there was an absence of evidence under (b). Is that to say that the Crown is barred from prosecuting any other case, although the Crown has evidence under (a)? In my submission, the case law does not stand for that proposition. I'll be getting to that in a moment. So, it has been made clear the last time and it's under the provision of that section and the evidence that has been adduced by the Crown more particularly fit under (a) and the evidence has not been gathered under (b) but gathered under (a). So, that makes a significant difference to my friend's argument. So, it's not the same. He keeps referring to the same organization, the pamphlet, the weiners, but, here, we're dealing with a different section; we're dealing with a different way to commit the offence. Maybe it could - acquitted of one way of committing the offence, but, there remains more than one way to commit that offence. So that just adds to the difference in the transaction between then and today. I submit a number of cases that I'm bringing to Your Honour's attention. There's the Riddle decision under tab one. In this particular case, the accused is charged with assault and the trial Judge dismisses the case as there is no evidence adduced by the Crown. And one week later, there is a new Information which is sworn and we're dealing here with the same facts and the same matter and the Court indicates in a key decision as far as autrefois acquit is concerned in Canada, the accused should not be re-tried for the same matter. I refer Your Honour to the headnote, the third line on page 366: "On that second date the informant failed to appear. An application by the Crown for an adjournment was refused. The Crown then called no evidence and the trial Judge dismissed the charge. A week later the informant swore a new identical Information. At trial on this charge the plea of autrefois acquit was upheld and the charge dismissed." Now, if we take the next paragraph: "At common law where the accused sought to rely on a prior dismissal of a charge the proper procedure in summary conviction matters was simply to enter a general plea of not guilty embracing the concept of res judicata...", and so on. But, here, the defence is advanced in the Canadian context as being one where you have to deal with the same scenario. The decision, Your Honour, of R. v. Petersen under tab two, again, at page 385, the headnote, the second paragraph at page 385: "The trial judge erred in failing to give effect to the plea of autrefois acquit. The judgment of dismissal by the summary conviction court, so long as it stood, was a bar to proceedings on the same charge even though the Crown proceeded by way of indictment on the subsequent proceedings. A plea of autrefois acquit is available and should succeed where an accused shows that he was placed in jeopardy on the same matter on an earlier occasion before a court of competent jurisdiction and that there was a disposition in his favour resulting in an acquittal or dismissal of the charge." So, again, it's the same matter. And this is a Supreme Court of Canada decision at page 385. So, whether we're dealing here - Your Honour has to decide whether, in fact, we are dealing with the same matter. In my respectful submission, we are not. Different way to commit the offence, different time period, different location, different witnesses involved. It is not the same matter, The closest analogy I could find, Your Honour, to the case at bar is the case of Walbourne under tab five of the casebook. The case of Walbourne deals with a charge of breach of probation. The accused was charged with breach of probation because he failed to make the first installment of his restitution under the probation order. What happens, the charge is dismissed because it is laid outside of the limitation period. Okay? So, we have one order of probation, one charge of breach of probation, charge dismissed because of an error or jurisdiction. The second charge is laid, but, this second charge, although covers the same probation order, the same type of breach, it covers a breach for the balance of the restitution. Now, does autrefois acquit apply? We're dealing with the same probation order. We're dealing with the same - you know - the same type offence that is made out. The Court says no. And I quote, Your Honour, from three- quarters past the beginning of the cite: "Although the accused was acquitted of the first charge, he was still under an obligation to comply with a second term of the restitution condition for repayment of the balance of the money. The fact that the language used in the second charge was practically identical to that employed in the first one was not in itself relevant to the validity of the second charge as it was clear that the first charge was concerned only with the non-payment of the first installment. The alleged violations of the probation order were separate and distinct from each other and could be the subject of separate charges so that the defence of autrefois acquit had no application here. In particular, the dismissal of the first charge was not a ruling that the accused was absolved from payment of money but only an acquittal upon an allegation that he had not paid the initial portion of money with the time stipulated." As well, Your Honour, I've provided excerpts from Salhany on Criminal Procedure, which is instructive on both the matters of autrefois acquit and res judicata. He says: "The test to be applied in determining whether the two charges are identical or substantially identical is set out in section 609 of the Criminal Code. It is provided under 609(1) that if the matter of the other charge is the same in whole, or in part as a later charge and that the accused might have been convicted of all the offences on the earlier charge, assuming that all proper amendments had been made, or could have been made, of which he may be convicted on the later charge, the plea of autrefois convict and autrefois acquit is applicable." So, we don't have this here. We don't have the second - assuming we do have the first pre-condition, we don't have the second. And in my submission, you don't have either. "The term "matter" here refers to offences and not to 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." So, in my respectful submission, Your Honour, this sets out clearly the test to be applied in these circumstances, that is, the matter is not the same and, secondly, it is not a matter where the accused might have been convicted of all the offences on the earlier charge. This charge that we're dealing with today was not even in existence. And, secondly, the Crown is relying on a different way to commit the offence. So, it would be my respectful submission to the Court, Your Honour, that it's apples and oranges. There's fresh evidence dealing with different transactions, a different way to commit the offence, at a different location and that, consequently, the plea of autrefois acquit or autrefois convict would not apply. To hold otherwise, in my respectful submission, would mean that accused, such as Mr. Turmel, would have carte blanche as long as we're dealing with the issue of gambling and betting to commit the offence in any other fashion, in any other way and would never be liable to prosecution. In my respectful submission, that is not what the case stands for. It stands for abuse of prosecution based on the same matter and that is not what we are dealing with. Those are my submissions on autrefois acquit and autrefois convict. My friend has also referred to the issue of res judicata. Res judicata is not a special plea. It is not to be dealt with at this stage in the proceedings. Res judicata has to be plead under a plea of not guilty. It is a matter for the trial judge to decide. It is not a special plea. In autrefois acquit and autrefois convict, it has to be so clear on the face of it. That is why it is a special plea. There is no evidence adduced. In Salhany: "In determining whether the second charge is identical or substantially identical to the earlier charge, the Court may look at the evidence, adjudication and the notes of the Judge and official stenographer on the former trial, together with the entire record of the proceedings." The is not before Your Honour. How can Your Honour make that determination to start with? Now, what is before the Court, Your Honour has the judges' finding of the case. Well, that's insufficient. And that just shows how they have to be so similar. Your Honour has to be able to make that determination summarily without hearing any evidence and that, Your Honour, is unable to, in my respectful submission. In dealing with res judicata, it is not a special plea. It is a plea that is entered under the auspices of a not guilty plea. At page 230 of the Salhany book, Your Honour, page 231, actually, of the hand- out: "The defence of res judicata cannot be raised as a special plea. Rather, it must be raised under a plea of not guilty. Where it is raised, the onus is upon the accused to satisfy the Court than in the earlier proceedings there was a determination of a question of fact in favor of the accused which is vital to the charge and which operates as an estoppel against the Crown so as to bar the later prosecution. But, he is generally required to establish that: 1) the particular judicial decision relied upon was in fact pronounced by a court of competent jurisdiction. 2) the judicial decision was final. 3) the judicial decision involved a determination of the same question as that sought to be determined in the litigation in which estoppel is raised. 4) the parties to the judicial decision are the same persons the proceedings in which estoppel is now raised." So, that's what the accused has to show on such a motion, but, it cannot be advanced as it is advanced today, simply locked together with the special pleas. Your Honour has to make an evidentiary finding, and that's the finding Your Honour has to make. No such evidence is before the Court, despite Mr. Turmel saying, 'Well, I can tell you this and Mr. Booth can tell you that' and so on. That is not evidence and there is no evidentiary basis for Your Honour to make that determination today. The final argument that is advanced in favour of the defence this afternoon is the argument of abuse of process, prosecutorial oppression and so on that is put to the Court this afternoon. I have provided the decision of R. v. DeSousa with the casebook. The reason I did this is because one of the prior applications that I had listed for today as well, lists sections 2, 6, 7, 8, 9, 11(a), 11(d), 11(h), 12 and 15 of the Charter. And this was presented in General Division and I wasn't there, but, I understood the matter was simply deferred to this Court. So, the accused was asking for a stay based on all those sections of the Charter and he hasn't followed up with the arguments under the Charter, but, he has, inferentially, referred to the rights of 150 people to earn a living and so on. And he's also asking the Court to impose a stay of proceedings And in my respectful submission, he is asking Your Honour to find - to make a finding of prosecutorial abuse and vexatious proceedings and so on, based on absolute - in an absolute vacuum. It is not an argument that one bases on newspaper clippings. It's not an argument that one can simply base on arguments. There has to be an evidentiary foundation. That is not there. The Court in DeSousa, made arguments. Justice Sopinka, in this Supreme Court of Canada decision, makes arguments which, in my submission, are analogous, or could be applied to this particular case. At page 74 in DeSousa, at the bottom of page 74, Your Honour, at the bottom of page 74 at line 14: "The general rule was with respect to a talking indictment by reason of a defect in law is that a motion to quash the indictment for a defect apparent on the face thereof must be made before pleading. The rule is subsuant to the provisions of section 601.1 of the Code which requires the motion to be made before the plea and then after only with the leave of the Court. The main purpose of the rule and of section 601 to the extent that embodies the rule is to ensure that defects cured (ph) by amendments or tact before pleading, as if not cured by amendment, they may be waived by a plea." The bottom of page 65, paragraph - 75, Your Honour, at line 16, page 75 at line 16: "With rare occasions that do not apply here, a trial Judge is empowered to reserve on any application until the end of the case. He or she is not obliged therefore to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised having regard to two policy reasons. The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own." Such as this one, I may add. "This policy is the basis of the ruling against interlocutory appeals in criminal matters. The second, which relates to constitutional challenges discourages adjudication of constitutional issues without a factful foundation." Below, after those cases, Your Honour: "Both the policies favour dispositions and applications at the end of the case. In exercising the discretion to which I have referred, the trial Judge should not depart from these policies unless there is strong reason for so doing. In some cases, the interests of justice necessitate immediate decision, examples of such necessitous circumstances include cases in which the trial court itself is implicated in the constitutional violation, or where substantial ongoing constitutional violations require immediate attention." And then a little - two lines below: "Apparently meritorious charter challenge of the law under which the accused is charged which is not dependent on facts to be listened to during the trial, may come within this exception to the general rule." So, Your Honour cannot draw from Mr. Turmel's submissions which inferentially refer at length to evidence, but his submissions are not evidence. Your Honour cannot use that submission to conclude that the proceedings are vexatious or an abuse. Your Honour, in my submission, has heard from Mr. Turmel and we have heard what his position is. Now, let's see how it is established. Let's see if the evidence establishes it. And it would be unfair to the proceedings that Your Honour pre-judge the issue without having the necessary evidentiary basis. So, in summary, Your Honour, to summarize briefly with the Crown's position, is sufficiency has been dealt with, disposed of and the decision will be produced by the Crown and communicated to the Court as soon as it's available. Mr. Turmel was there. I assume he has notes of that decision, but, it has been dealt with. Autrefois acquit doesn't apply when a charge has been withdrawn. So, we're looking solely at gaming, the elements the defence perpetrated in a different fashion. We're dealing with a different time, a different location, different offence, different subject matter, so, therefore, it would not apply. The argument of res judicata, it's not the appropriate place to enter that plea. It should have to be argued after a plea of not guilty. And, finally, abuse of process, there has to be some evidence before the Court, evidence which is lacking. He is asking you to make that decision in a vacuum, in a void, based on his submissions and his reference - selected reference to the evidence and that, in my respectful submission, is insufficient to establish what he is seeking. So, all motions that are framed the same way as his that are before the Court should all be dismissed for those reasons. COURT: Mr. Marin, would you think that there is a difference in character between the type of activities that would fall under the heading of autrefois acquit or autrefois convict and issue estoppel? And, in particular, if I could point out a passage that Mr. Turmel referred to in the Rourke case, at page 1031, second paragraph? MARIN: If there's a difference between both concepts? COURT: Well, in terms of the nature of the prior activity, or the prior conduct. MARIN: All right. Well, my understanding is that both motions are quite different, Your Honour, if that is what you are asking. The autrefois acquit, autrefois convict is simply that the Crown is barred from prosecution because the subject matter entirely has been disposed of. COURT: It's the same thing. MARIN: It's the same thing. Whereas, res judicata, means that there is an issue within the prosecution of the case that has already been decided. If I may say so, for example, the issue that my friend is raising today of sufficiency, inferentially, that is res judicata, if I may say so, because it has been disposed of. A judge has already - but, it does not mean it's the end of proceedings. It means that a matter within the proceedings, an issue, has been resolved. So, it is a different concept. It does not mean that the matter cannot proceed. It just means that an important element within the process has been decided by a court. So, it cannot be re-litigated. If I may just draw an analogy on it before we move on, the whole Kienapple concept is a version of the res judicata, where a behavior and an offence has been judged and, so, the Court cannot proceed with a charge of impaired driving and driving with over 80 milligrams of alcohol in their blood. It's not autrefois acquit, autrefois convict, it's just that the subject - the issue - the behavior has already been judged by the courts. So, that the Kienapple principle would be administration of the res judicata. COURT: I don't think I have a great issue with respect to your submissions concerning autrefois, but I would like to address the issue relating to issue estoppel in Rourke. If I understand your submissions in relation to autrefois, a distinction could be drawn because, in a particular charge, there were different dates, different locations, things of that sort, which would draw a particular fact situation out of the autrefois scenario. MARIN: That's correct. COURT: If you look at the passage starting with, "The result..." It talks about "...the same facts as the charges in a previous indictment on which the accused has been tried, or form or are part of a series of offences of the same or a similar character as the offences charged in the previous indictment." Which would seem to be a broader application than the arguments that you advance with respect to autrefois. MARIN: The difficulty I have, Your Honour, with Mr. Turmel's argument is that how is the Court going to make that conclusion today? Your Honour.... COURT: I don't know. MARIN: Okay. In my submission, the Court could not, whereas autrefois acquit autrefois convict is recognized as a special plea, a Pre-Trial plea, that we can all stand here and show you the record. Mr. Turmel would show you the evidence, the record, here's the same thing, now they've re-charged me after it was dismissed. And then Your Honour can make a finding on that without any other evidence before the Court. But, what he is asking you to do right now is to - if you look at this rule: "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 on which the accused has been tried, or form or are a part of series of offences of the same or similar character as the offences charged in the previous indictment." The reference here to facts should, in my respectful submission, be of great concern to the Court, because Your Honour is asked to look at the facts. There are no facts before the Court. There is no evidence before the Court. Your Honour has an Information, alleging a number of offences. Your Honour has a transcript of a case, or a ruling where there is a dismissal and a withdrawal of charges. But, Your Honour has no facts to make that determination. If we were at the end of the case and we were arguing this, then we could refer to the facts and say, 'Well, Your Honour, in this particular case, Your Honour has heard these facts. This is how the offence was made out today on this Information.' And then we could refer to the transcript of the previous charges against Mr. Turmel and say, 'Well, this is how they differ.' We'd have some facts to play with. There are no facts before the Court today. So, Your Honour cannot, in my respectful submission, deal with the substantial portion of the motion because there are no facts. The quote relates to the character of offences. I've indicated to the Court that the Crown is relying on a different section to make out the offence. The elements of the offence are different. What was a gaming house then is not a gaming house in this provision. So, it is my submission that these are all inferences, deductions of facts of evidence nature of the case, that you would be called upon to make the decision on issue estoppel. And it cannot be argued along with the special plea as indicated by Judge Salhany in his book. The proper time to raise the issue estoppel argument, Your Honour, would be at the close of the Crown's case, before the defence is asked to present it's case. Then the evidence against the accused would be as part of the record and then you take it from there and then you argue issue estoppel. COURT: When you made reference to the different section numbers under section 197 (a) and (b), to the definition of common gaming house, could you refer to page seven, please, of Judge Fontana's decision? It would appear to me that he makes reference to both (a) and (b) in his ruling. Do I take it that the Crown's assertion is that the factual basis will be different in this particular case from that which was before Judge Fontana? MARIN: Yes. [JCT: This is the most important point for the Defence in the whole trial. At this point, it appears to Judge Wright that Judge Fontana did rule on Section (a).] COURT: Thank you. Mr. Turmel, is there anything you would like to add? TURMEL: Yes. First of all, it's true that we did not argue the sufficiency arguments. They were done. At the time we had argued that they should specify whether they were going to alleging section (a) or not. And the Court decided that they didn't have to specify section (a). Now, it's not specified in the indictment. I mean, it's nice if he's telling us here that section (a) is the one that he has picked, but, if you look at the indictment, it's not there. As a matter of fact, we went through a great deal of effort and expense to get them to tell us if it was section (a) or not and this is the first time I hear about it being section (a). Out of the blue, now, oh, it's section (a). Well, we did go to court trying to ascertain what section it was, trying to say that the indictment was badly drawn. It would make autrefois acquit possible because you didn't specify that last time it was section (d), now it's section (a). You wasted all our time by not specifying. Now you want to walk in and claim, 'Oh, yeah, I guess we should've specified originally.' Well, the point is, it's not specified. Not on Mr. Lo's indictment. Not on my indictment. Nowhere does it say section (a). And, yes, Your Honour, you were correct when you pointed out that Judge Fontana did rule on section (a) and did rule there was no evidence of section (a) violation. Now the Crown is alleging that they have evidence to prove section (a), but they didn't put it in the indictment. And, you know, sure, it's a technicality, but they were given the opportunity to fix it. They chose not to. To fight it even. And now they want to tell us it's section (a). Well, it's not in the indictment. You are not supposed to be taking evidence from him that it is evidence with respect to section (a). You are supposed to be looking at just the indictments which are identical. And, again, he was saying I wanted to bring evidence of things going on. Well, no, I stayed away from evidence. I didn't talk about sufficiency and, so, therefore, the Crown, himself, has made the point. If you look at the indictment, there is nothing specified. They are absolutely identical. It's the only reason I'm here on an autrefois acquit and an issue estoppel is they didn't specify a difference. And when we asked them to, they refused to. And that's the only reason we are even using these arguments, is because it's the Crown who insisted on not specifying. Now, they're using their specification as a defence. So they won't specify, we go on attack to get the information, they win, they don't have to specify. So, now we go on attack because they didn't specify and now they specify. So, the Crown basically wants to have it both ways, one, not have to specify; and then two, use specification as an out. So, if you just look at the indictments, you will note that they are badly done. They are identical and therefore, autrefois acquit should apply. Now, he says as to whether or not the withdrawal of the betting charge was done after substantive - well, you see, in the case he mentioned, he mentioned that you have to do it, your motion to quash before evidence is presented. Well, in my case in 1989, the Crown did present their case. There was evidence put on the stand. The expert witness, Mr. Durno, was on the stand. I did face the evidence. I did face gaming house and betting house charges in 1989. The Judge took my pleas. The Judge took evidence and then he reserved his decision after the Crown's case on a motion to throw out the charges on the grounds that they had no evidence. So, I did face all the evidence they had of betting house. The Crown's allegation that it wasn't like Judge Fontana heard the case, Judge Lennox said, 'Well, let's not start anything, let's wait and see.' If you read the transcript, you will notice that I forced the issue and we did hear evidence, therefore, I was put in jeopardy of both the gaming and the betting and it was only after they had lost on Fontana, they came back and said, 'Well, I guess we're not going to argue. We'll try and withdraw.' Now, I can only say that I faced evidence, I faced the whole case. They closed their case - the Crown closed the case. So, how they can now say I didn't face the case, I don't understand. I did face the big betting house case and the gaming house case in 1989. I was in jeopardy in both, so, therefore, it should apply. I was in jeopardy, because I did plead. Okay. Again, the Crown has re-iterated that the time and the place and the transactions have to be the same even though they are immaterial. Now, this is what I consider one of the flaws of the legal profession, is the taking into account of immaterial things in consideration of the decisions. I presented the Carrier case, which ruled time and place and even transaction immaterial. I pointed out the City of Montreal v Rothman Realty Limited case where it says time is immaterial... COURT: You don't need to repeat. TURMEL: Okay. But, I mean, he just got up and said, 'I disagree with these cases. They're not.' So, I'm saying that if it didn't get through, I was pointing out that these cases I presented were arguments that when time and place are immaterial, they should be treated thusly. Now, he said it wasn't the same pamphlet. And it wasn't the same weiner, the same recipe. It wasn't the same game, the same set of rules. So, no matter how you look at it, those statements of the Crown were wrong. It was the same pamphlet. Physically not the same pamphlet, but it was the same words. Would we grant that it was the same words, if not the same pamphlet. So, the fact that what he thought he was arguing were points for him, I thought were actually points for me. It was the same set of words, though a different piece of paper, and it was the same formula for a weiner and it was the same game and house rules. Now, again, I don't see any evidence here that the Crown is relying only on section (a) and I do see evidence in the Fontana decision that he did consider section (a) and did dismiss the charges on section (a). He considered all five sections. He went over them one at a time and dismissed them all. So, I don't think the Crown has any right to say Fontana did not consider the section (a) ramifications. He found a total absence of evidence under the (b) sections correctly and the (a) section. If you re-read his decision you will see he did. Okay. Now, he's looking for fresh evidence of different transactions. He says he has fresh evidence of different transactions. well, again, this should've been put into the indictment so there would be a difference for you to look at. Right now, you have to take his word for it. You know the indictments are absolutely identical and you now have to take his word for it, that this time it's section (a), last time it was (b)(4), when, actually, I think we've pointed out last time it was all five. Fontana did all five and now they're saying that even though Fontana ruled on five, the fact we're going to restrict ourselves to just section (a) makes a difference. Well, it doesn't. He dismissed on section (a) as well. All they're doing is limiting their options to one, that Fontana refused, and he refused them all. That's the beauty of his decision for us. I don't believe I ever argued res judicata. I think I admitted that it has to be after, not during the trial. I just pointed out that res judicata was intrincally linked with issue estoppel and autrefois acquit and abuse of process. I've read a few quotes on that basis, but, I do not allege it should be used at this point. And I didn't raise the sufficiency, one, because that had already been settled, wrongly, I believe, but that can be done on appeal. And as for the proper time to raise the issue estoppel at the end of the Crown's case, well, again, we're back to the problem, how does Wayne get his weiner wagon back if the formula is legal and he didn't do anything wrong? How do I get my equipment and my gaming casino back if the formula I used for my game is correct? And issue estoppel, if it were placed at the point in time when the Crown says it should be argued, I believe would lead, like Judge Lachapelle said in the Rothman case, the defendant opened to being charged repeatedly on exactly the same set of facts. So, I think given the fact that there is no evidence before you, this is a question of pure law and the fact that the Crown Attorney stated its section (a) that he wants to rely on, the fact that Judge Fontana clearly defined and determined the issue in section (a), I think should be a bar to future prosecution on section (a), if that's the only one they're talking about. And with no specifications, I don't understand how the Crown can think that section (a) is going to save them. In this case, Fontana considered all five ways; cleared us of all five ways down and think that considering that the population were well aware of exactly how we were doing it and the Crown were, as well, well aware of how we were doing it, I think that we do have an abuse of process here lodged (ph) into all these autrefois acquit, issue estoppel and res judicata considerations. So, I hope Your Honour can find some way to allow us to get back to playing this game we were formally acquitted of playing without any undue delay. Thank you. COURT: Mr. Turmel, you wish to enter a plea of autrefois acquit? TURMEL: Yes, I do. COURT: My understanding is that in accordance with section 606 of the Criminal Code, you'll have to be arraigned and called upon to plead. Do you understand, Mr. Marin? MARIN: I hadn't really thought of the mechanics, Your Honour, but, certainly, that is what section 606(1) seems to suggest. If you could arraign Mr. Turmel, please. TURMEL: Now, is this seizing you as my trial judge by the way? COURT: I'm afraid so. TURMEL: I'm just wondering how that jives with the Quebec case where they asked me how I pleaded. I said autrefois acquit. The judge disposed of it, picked a date and then sent me off for trial to someone else. You think they did it wrong over there and we're going to do it right over here, or, could that be a good precedent over there? Because, do you really necessarily want to be tied down with all of these? COURT: I won't be able to deal with all three. I'm assuming that the argument and the decision may be of assistance to both the Crown and the defence in respect of all three and that is why we have heard the arguments together, but, I will not be able to deal with the trial, obviously, of all three, if there is a trial. TURMEL: So you have to arraign me right now. COURT: If your argument is successful and I can tell you, I am not going to decide today, but, if the argument is successful, then, in your case, subject to an appeal by the Crown, there will not be a trial. If it is not successful, then we will proceed to trial. So, if you wish to advance those special pleas, then, it is my understanding that you have to be arraigned. TURMEL: And you have to be the seized Judge. COURT: Otherwise, I can't take the plea. TURMEL: Okay. Because I remember when I read the autrefois acquit section, it did not say the trial Judge, it just said the Judge. And that is why in Quebec we just went up, the lady heard it, and said no and then off to another Judge. Now, whether or not the indication of the plea is what they called the pleading, the autrefois acquit plea was heard by one Judge and it was not my trial Judge. So, unless that was in error or a precedent. I'd like them to have their questions answered, especially Mr. Lo, with his clean found-ins, but it shouldn't mean you're necessarily tied down with all our trials. COURT: I don't think I can deal with them all. There are different types of charges. They are not on the same Informations. TURMEL: Okay. Well, I just want to make sure there is no other way out of here before actually - not that I do not want you as my Judge, I just meant to say I like to have a precedent knowing that the poor guy who gets stuck with these things if it ever happens again isn't nailed with the case too. But, "...an accused who is called on to plead, may..." - okay. You may as well call on me to plead. COURT: Arraign Mr. Turmel. CLERK OF COURT: Yes, Your Honour. John Turmel, you are charged that [repeats indictment] COURT: As far as the elections, Mr. Marin, are you aware of...? MARIN: It's a straight indictable election with absolute jurisdiction to this Court. CLERK OF COURT: Jurisdiction, okay. And how do you plead to these four charges, guilty or not...? TURMEL: Autrefois acquit. COURT: As I indicated I intended to do, I am going to take some time to read again the materials and consider the argument. All right, then. The matters for Mr. Turmel will go over to November 24th at nine o'clock in Number Four Court. What would you like to do, gentlemen? TURMEL: They will have to wait for maybe we can just leave the motions on the books and they can kick them in at some other point, maybe? COURT: All right. would you like to be put over to a day after Mr. Turmel, or a couple of days afterwards? Mr. Lo and Mr. Booth, it would appear that there is a date for - it's confusing. It would appear that most - the accused have been adjourned to December 1st. TURMEL: Your Honour, the keepers, I believe were sent off to the lOth and the found-ins were sent off until the 1st. So you might want to stick Mr. Booth on the lOth and Mr. Lo on the 1st. COURT: All right, then. The Turmel matter will go over to November 26th, 8:30, this courtroom. 931126 #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** REASONS FOR DECISION HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT on November 26, 1993 at Ottawa, Ontario. ********** CHARGE: S. 201(1) (2 counts), C.C. S. 202(1)(e), C.C. S. 202(1)(c), C.C. ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self COURT: At the commencement of the trial for Mr. Turmel, a number of arguments were advanced on behalf of Mr. Turmel who represents himself in these proceedings. Mr. Turmel argued autrefois acquit, res judicata and issue estoppel. At the conclusion of the arguments which were advanced on behalf of both Mr. Turmel and on behalf of the Crown, the Court expressed that, perhaps, the argument or plea of autrefois acquit or convict could only be advanced procedurally on the accused being arraigned and a plea being taken. It is likely the Court erred in not raising the issue at the outset of the proceedings, however, the matter was considered by Mr. Turmel and a plea of autrefois acquit was entered. This would appear to be the course as set out pursuant to section 606 of the Code, As well, it would appear that there is some authority for the argument of issue estoppel being raised as well during a trial. According to the Criminal Procedure, Canadian Law and Practice, Volume Two, Atrins, Burns and Taylor, the authors indicate: "The onus of establishing the defence is on the accused. On the pivotal question of whether a common issue was decided in the accused's favor by a previous acquittal, the onus is heavy. The defence is not raised by a special plea, The standard method of raising it is on a general plea of not guilty. It has been suggested that the defence may be raised before plea, but the proper procedure to submit it is to raise the issue after plea in the trial court. The ruling on the defence would then be appealable, Disposing of the defence before plea would invite multiplicity of proceedings and necessitate review through the prerogative remedies. Although authority on the point is divided, given the limited jurisdiction of a Judge presiding at a Preliminary Inquiry, in the absence of an appeal procedure, the accused should not be able to invoke the defence at the Preliminary Inquiry, Since issue estoppel is a complete defence, it should be raised at the earliest possible time after plea. If the defence is successful, the delay, expense and inconvenience of further proceedings will be avoided." In any event, arguments have been advanced, following which Mr. Turmel was arraignment and a plea was taken. While the Court, therefore, may have been in error in not having Mr. Turmel arraigned at an earlier time, I do not feel that there has been any prejudice as a result to either the Crown or the defence. Mr. Turmel argues, therefore, firstly, the issue of autrefois acquit and brings to my attention the decision of my brother Judge Fontana in David Booth, a decision which was rendered at Ottawa on the 3rd of April, 1989, in respect to a charge contrary to section 185(2)(a). Mr. Turmel argues that the issues raised in that case as to the ruling by Judge Fontana as to the definition of a gaming or a betting house are the same as the charges before me. Mr. Turmel appeared as a witness in that matter, according to the decision, and he argues that, as I have indicated, the issues are the same. He further draws the Court's attention to a transcript of an unreported decision before by brother Judge Lennox in R. v. John Turmel and Ray Turmel, which decision was given, again, in Ottawa, on the 7th of April, 1989. In these proceedings, the Court indicated an intention to follow the previous ruling of Judge Fontana and I quote from the transcript of by brother Judge Lennox: "I understand that it is common ground that the evidence called in the course of the proceedings 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 it's results. In my view, it would be an error on my part at this point, to consider delivering a contradictory verdict on what amounts to an argument at law, that being a complete absence of evidence. In those circumstances, as I have indicated to counsel who are content to make no further submissions, with the exception of Mr. John Turmel, I propose simply to adopt the Reasons for the purposes of this trial of Judge Fontana and the result." Following His Honour Judge Lennox's ruling, the Crown then withdrew charges in relation to a betting house. Mr. Turmel, in his submissions, relies, as well, on the decision of R. v. Wriqht, a decision of the Ontario Court of Appeal, 1965, Volume 2, 0.R., at page 337. In this decision, the Court, in a decision which was rendered by the Chief Judge, deals with the issue of issue estoppel. He considered the matter at page 338: "The doctrine is different from the pleas of autrefois acquit and autrefois convict. Autrefois acquit applies where the accused has been previously acquitted of the same offence of which the accused is subsequently charged. Whether it applies where the offence charged is not the same, but, the crime committed is essentially the same, is not so clear. From these authorities, it is evident that apart from the pleas of autrefois acquit and autrefois convict, the principle of res judicata and the doctrine of issue estoppel apply in a criminal case where there are inconsistent verdicts, or where it appears by the record of itself or explained by proper evidence, that the point was determined in favor of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner." Mr. Turmel made further reference to the decision of the Supreme Court of Canada in Jewitt, reported 1985, 2 S.C.R., page 128, which I take for the proposition, that where there is, as a result of abuse of process, the Court has entered a stay of proceedings, that will amount as to a final determination which would sustain a plea of autrefois and would amount to an acquittal, only for the purposes of enabling an appeal by the Crown. The Court was also referred to a decision of the Ontario Court of Appeal in Boross, 12 C.C.C., (3rd), page 480, which also stands for the proposition that' the argument advanced to the issue estoppel may be combined with an abuse of process plea. In that decision, the Court indicated here that the defence that is offered is essentially that of issue estoppel with abuse of process in support. I say so because the Crown's position appears to be that the prosecution for perjury is no more than a colourable attempt by the Crown to re-try the very issues in the shoplifting in order to gain a more substantial penalty. The Crown then argues that for autrefois acquit to apply, the circumstances must be identical and that the matters before the Court involving Mr. Turmel have different dates, different locations, that, essentially, these matters are completely different occurrences. The Crown further contends that autrefois acquit or autrefois convict are not applicable where the accused has not previously been in jeopardy. And in support of this contention, relies upon authorities which touch upon the issue of prior jeopardy, in particular, the Supreme Court of Canada decision in Peterson, reported at 69 C.C.C., (2nd), at page 385, where the decision of the Court was as follows: "In Riddle, the Crown's case was dismissed because the Crown, despite a refusal of an adjournment and the Court's direction that the trial proceed, declined to call evidence. There was, accordingly, no case for the accused to meet and the acquittal resulted." I do not consider that Dickson, J., imposed by those words, a requirement that some direct invitation must be issued to the Crown to call evidence before it could be said that the issue had been joined and the accused placed in jeopardy. The authorities he relied upon in his decision support the proposition that once a plea is entered before a court of competent jurisdiction, the accused is in jeopardy, and this quotation is from page 392. Mr. Turmel cites and relies heavily upon the decision in Carriere, a decision of Mr. Justice Drew of the Quebec King's Bench, 104 C.C.C., page 75, which indicates, in short, the charges brought in the first place against the accused and the present charge are substantially the same. Fundamentally, what the accused is charged is with having distributed a pamphlet. He was found not guilty the first time, and although he is prosecuted in different terms, it is the same act with which he is charged. And this is a quote from page 85 of that decision. The Court, in Carriere, evidently, therefore, had evidence to establish that it was the same pamphlet. Here, it would appear that there are, indeed, different places and times. And although Mr. Turmel contends in his arguments that the actions, the process or the structure, as he describes it, are the same, there is simply no evidence to that effect before the Court, other than argument and submissions. I have concluded, therefore, in the absence of any evidence, the analogy is simply not applicable. I have also come to the conclusion that the plea of autrefois acquit is not applicable in this case for the following reasons: Although it would appear that autrefois acquit requires the same parties, and, therefore, with respect to, at least, the Booth decision of Judge Fontana, the decision, even if it were with respect to the same occurrence, could not support a true plea of autrefois acquit because Mr. Turmel was not an accused with respect to that particular proceeding. The only issue with autrefois arises in respect to the decision of my brother Judge Lennox, which I have previously made reference to. It would further appear that the special plea would not be applicable in respect to the betting house charges, as these were withdrawn, apparently without any plea having been taken. And in this view, I rely upon and follow the decision of Peterson, supra. However, in my view, the plea would only and could only be appropriate with respect to any of the charges, if those charges were shown to be the same offences or substantially the same offences. In the case at hand, it would appear that the offences are not the same in respect of date, time, location and so forth. And there is simply no evidence with respect to the details or circumstances in which the offences are alleged, and, therefore, with the greatest of respect, the plea of autrefois does not succeed. With respect to the defence of res judicata, which was also raised, and issue estoppel, it should be noted that while the plea of autrefois acquit is specifically provided for in the Criminal Code, res judicata and issue estoppel [N] are common-law pleas or defences. Res judicata is a defence that is raised when in some earlier proceeding, an issue has been litigated with a final decision having been rendered on the same issue as in a subsequent proceeding. I propose to deal with the issue of res judicata as raised by the defence, at the same time as that of issue estoppel. Issue estoppel may lie in those situations where the defence is able to establish that the issue which has previously been decided is identical or very similar to the issue before the Court. In a decision by His Honour Judge Borrens in R. v. Nichols, 1984, 17 C.C.C., (3rd), at page 556, the Court stated: "The principle of issue estoppel bars re-litigation between the same parties if issues actually determined at a previous trial." It means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future law suit. The difficulty is that the Court has heard no details as to the nature of the allegations and, therefore' the issues in the charges before this Court, no evidence has been called with respect of this issue, as to the applications that were brought prior to the hearing of evidence. No affidavit materials were provided and there is no agreed statement of facts presented to this Court. I am therefore left in a position of having to decide the issues of res judicata and issue estoppel in a vacuum. The onus is upon the applicant, in this case, Mr. Turmel' to establish, as stipulated in the Wright decision by proper evidence that the same point was determined. The Crown contends that the facts are different, that there are different issues. 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. COURT: Have the parties discussed what happens at this point in this eventuality? TURMEL: A Pre-Trial. MARIN: I think the next logical step, Your Honour, should be to set a Judicial Pre-Trial. I believe at the last Judicial Pre-Trial we had, Judge Lennox had agreed that we would do these motions and then look into the possibility of having a Pre-Trial to shorten the eventual proceedings. I'm not sure what Mr. Turmel's position is on that, but, I would suggest that it be.... TURMEL: No. I'm ready to go to Pre-Trial now too and I don't think it will take too long. COURT: All right. Mr. Turmel, you will re-attend in this Courtroom Number Seven on December 13th at two o'clock for your Pre- trial. Thank you. 931213 #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** PRETRIAL HELD BEFORE THE HONOURABLE JUDGE B. LENNOX on December 13th, 1993, at Ottawa, Ontario. ********** CHARGE: S. 201(1) (2 counts), C.C. S. 202(1)(e), C.C. S. 202(1)(c), C.C. ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self COURT: Now, Mr. Turmel, my understanding of the proceeding is we are simply going to try to estimate the length of time to be taken for your trial. TURMEL: Yes. COURT: And, sir, are you going to be represented by counsel at the trial? TURMEL: Perhaps. At this stage I'm just going to continue myself. If I have to before the trial, I have an attorney in mind who is up on the issues already. He did it back in '89 successfully, so I may use him again later on. COURT: All right. Mr. Marin do you have and have you provided a list of witnesses or proposed witnesses or admissions that you are seeking, admissions of fact that.... MARIN: Well, my friend has the full disclosure of the entire case but there are some areas that I can canvass and if the areas are admitted, then we won't require the witnesses to prove those areas. Now, on the Information, there are four counts. As to the first count, common gaming house. There are two or three elements of the offence that I would have to prove. The first issue is the game, the common gaming house. Now, the evidence would show, Your Honour, that at both locations that the games of blackjack and poker were played at those locations and I would expect the evidence to show that those games are games of chance or mixed chance and skill. There is a witness by the name of Ron Shephard who would be our witness on the blackjack game, and who could testify as to the nature of the game, how it's played and the odds and so on, and the second game is poker, and, for that game, we have a witness by the name of Joe Fotia, Sergeant Joe Fotia from the OPP, again would be able to testify as to the nature of the game fitting within the definition of the Code as being one of game of chance or mixed chance and skill. So that would be the first area that would be up for discussion if my friend would be ready to make any admissions in that respect. I can go on or we could just deal with.... COURT: Well, perhaps we could deal with them one at a time. I don't want to get in any sense, Mr. Turmel, into any kind of argument at this point, because it's not the function, but do you take issue with the Crown's basic position that the game of blackjack and poker is a game of chance or a game of mixed chance and skill? TURMEL: Well, Your Honour, I'm prepared to make a lot of admissions. I believe this is a question of pure law. As a matter of fact I have here for the Court a copy of the agreed-upon statement of facts that was made in 1989. Now, I don't believe the Crown is aware of this because I don't believe the officers told them that we had a trial. If you'll remember, we discussed whether we should wait until Fontana decided and I insisted on having the Crown present their case, and, unfortunately, the Crown was not made aware of the fact that we had a whole bunch of expert witnesses on the stand and all these issues were discussed. So I have here the agreed-upon statement of facts that we had back in 1989 when, I believe, there were two witnesses for the Crown. Now, I believe, they have a little over 90 right now. So, had they gone and checked the case in '89, they would have run into the transcript about 85 pages of our trial and the statement of facts, Exhibit One, and I did ask the officer for a true copy of Exhibit One, because I only have the one they made me sign before they went and re- drafted it, but I brought it along, nevertheless. So I have a copy here. These are the admissions that were made in 1989, and I'm fully prepared to make 99 per cent of them again. Now, I don't expect the Crown is going to have many witnesses left. Well, actually, I would have expected them to do this on the weekend because I mentioned it to Mr. Marin last week that he should go get Exhibit one, and I would be making all these admissions again. About the only difference between the two games happens to be that this one here, I was inviting the public to come and play with me as opposed to at Bayshore, where I wasn't. So, other than that, all the admissions are pretty standard and should he useful here to virtually eliminate 99 per cent of the -- well, let's say we might have the statistician come in. I can't believe there are too many witnesses left after these admissions. So perhaps we should take a quick five-minute recess so you can take a look at this and refresh your memory as to the statements of last time and the Crown may examine it for the first time, I don't know, but, with all these admissions, you must understand my goal here is to get this down to a question of differences between '89. I don't want to spend a lot of time talking about a lot, like doing it like a lawyer would do it. I'm going to admit everything. I'm not here to argue facts; I'm here to argue a re-interpretation of the law and I think the first thing we should do is establish particulars. Now, in the discussion before Judge Wright, the Crown pleaded Section (a). They said, "Judge Fontana ruled on Section (b). We don't disagree with him on Section (b), but we say he didn't rule on Section (a)." Now, Judge Wright pointed out that he had ruled on Section (a) but the Crown has nevertheless said that they are going on Section (a). Now, I spent a lot of money to pay a lawyer to try and use a Bingo argument to try to find out what section they were going to use and they wouldn't say. Then, we get in front of Judge Wright and now they're screaming Section (a). So they promised particulars before Judge Nadelle, I don't see them yet, and I think they should, you know, continue with that undertaking before things go on. COURT: O.K. Again, we either have an agreement or we don't with respect to certain facts, and my role is limited to try and estimate the time that's going to be taken on the basis of the evidence that has to be called and the argument that's going to be made. The matter of particulars.... TURMEL: It doesn't look like there's much left. COURT: Well, that was my impression in the first place, and that's why I suggested we have this meeting, after the initial Motions were dealt with, to try and find an accurate estimate of time. Mr. Marin, have you had a chance to look over briefly the admissions that were made at the earlier trial in 1989? A number of them are particular to the circumstances, I take it, but.... MARIN: Well, that's exactly it. I've just looked at it now. Mr. Turmel is right that he had indicated to me last week, but he'd be looking at the same admissions as '89 and I did ask my investigators who are not the same, and they could not locate it. This is the first time that I have been provided with what was admitted the last time. The location is different, and, I mean, a lot of them, the first four, for example, are case specific. TURMEL: Well, Your Honour, I happened to have typed up a draft of one set for 1993. Perhaps I could just read it and the Crown can object if there are any facts that are wrong. COURT: Mr. Turmel, my understanding from reading the brief disclosure that I was given for the purpose of the pre-trial is that, among other things, the police attended with the knowledge of yourself and the operators at the premises to make certain observations during the course of the investigation into what has now become charges. Is that correct? Would you, in the normal course, just generally and without speaking of specific observations, would you, in the normal course, have any objections to their observations going in by way of agreed statement of fact? TURMEL: No. As a matter of fact, I took Appendix C from the search warrant application. I have a copy here. I suppose you have one already, eh, appendix C, about 27 pages of facts from the investigation, and I've noted just a few things I do disagree with, opinions mainly. And virtually the rest I don't believe there's a problem. So that, if I am to look through here, do you want to go over these few objections? COURT: Could you just go quickly through it? TURMEL: Paragraph 1.017 where it says, "The sum of $2.50 is paid to the dealer." If they were willing to put in the word "tipped", I would agree. COURT: Instead of "paid"? TURMEL: Instead of "paid". If they'll put in the word "tipped", I'll agree. COURT: All right. TURMEL: Where it says, "The dealer is acting on behalf of the house", well, actually that's not true. The house really isn't involved in any poker at all, so the line there.... COURT: I think what you're just telling us, I don't expect perhaps for you and the Crown to reach agreement today, but, if the only things in issue are the matters you raise, then presumably the other matters are matters of admission that you are not disputing and that's quite helpful. TURMEL: That's why out of the 30 pages there may be five or six little things like that that I dispute and other than that I'll sign it. COURT: All right. Could you tell me what the next one is, please? TURMEL: O.K. On paragraph 21... They talk about Sergeant Joe Fotia (ph). I would like that advanced to December 1991 when he investigated my home undercover, and that date happens to be part of the search warrant. And one other thing, at this stage I must bring up: Would it be possible to have an examination of the game ? You see, they went from February 25th when I was in my home at Baseline Road which they did investigate. Then, on February 28th, I moved to Baxter Road, which they did investigate. Then, on November, I moved to Topaz which they did investigate. Now, different things changed under different administrations. Like, when I was in my home, I covered no expenses; when I was at Baxter Road, I covered a few; and when I was at Topaz, I covered them all. So there are differences here and I think that I would be willing to look at, you know, case A, case B, case C, for home, Baxter and Topaz, because they weren't the same operation in the three different locations. So could we split that up into three different instances? O.K. Well, then, I want that changed to December '91 when Officer Fotia came to my home. 1.080 where it says, this is now the second last paragraph, "He feels he's lost $60,000 to Turmel over the years." Could they change "to Turmel" to "at Turmel's", because I certainly didn't win it from him. This guy is a poker player and probably several people in the room participated in his losings. So I didn't win it all and can they put "at" with any objection? Is that O.K.? MARIN: Well, I'll note them, Mr..... TURMEL: O.K. And then the very last paragraph, ".. . where he had been. Playing recently and he was forced to give part of his poker winnings to the house." Actually I would like to change that "He'd agreed to pay $100 off a loan per win.' That's the truth. You know, people hurt themselves. I let them come in and play and if they made a win, give me a little bit. Standard practice. I'll admit that for not him, but for everybody. You know, if you wanted to keep playing and you made a win, you give me a little bit. So he wasn't forced to give part of his poker winnings to the house which implies "a rake", is that O.K. ? MARIN: He agreed to pay $100 off what? TURMEL: Off his loan. Is that acceptable? MARIN: I'm going to note them all and.... COURT: It may be that the matters that you are raising now won't be in dispute at all Mr. Turmel but I think it's fair to give Mr. Marin some time to consider them before asking that. SGT. CLEARY: What's the issue, Mr. Turmel, that you earlier mentioned with regards to Baseline Road? TURMEL: You included it in the indictment. From the 25th of February when I was running Poker and Blackjack games in my home to July '93. And I know that Officer Fotia investigated my home because I saw it in his reports. So they may not want to talk about the game in my home but I want to. It was the same game in my home as it was at both other places. SGT. CLEARY: The evidence that relates to that date, the first date you mentioned .. TURMEL: 25th.. SERGEANT CLEARY: .. of November? TURMEL: Of February, '92. It was just before Baxter Road opened. COURT: It's Sergeant Cleary speaking and perhaps what we could do is address your remarks through me to Mr. Turmel. It's not quite the mode that we use in a Pre-trial but this isn't the forum for a Pre- trial normally, either. SGT. CLEARY: Your Honour, we don't plan on introducing any evidence in relation to the gaming that took place at Mr. Turmel's residence. We are introducing gaming evidence of 1141 Baxter Road, and of 2335 St. Laurent Boulevard, the Casino Turmel at Topaz Plaza. COURT: I take it, Mr. Turmel, you see some benefit to your defence of having the earlier... TURMEL: Well, yes, I do, and mainly because there was an investigation by Officer Fotia. Officer Fotia did investigate and obviously didn't report a crime and, therefore, I would like to have Officer Fotia talking about what he saw on Baseline Rd., and it's in the right date of the indictment. They should have started on the 28th.... COURT: That's something I'm sure the Crown will consider. It may not be something the Crown would have called, but, if you feel it necessary for your defence, it may be something they are prepared to admit. TURMEL: O.K. Next page. I think there are only three more things. The top paragraph, it says, "This has occurred many times to him and others every time there was a split pot at the Poker tables. Whenever there was an extra five dollars left in the pot, both players who had split had to forfeit the five dollars to the house or the dealer." O.K.? Now, I don't know how to change that. mean, obviously if that's true, I'm guilty. So, if they did have to forfeit five dollars to the house, well, I'm guilty. So that's not true, I object to that statement that "they had to forfeit" COURT: All right If the Crown wants that in evidence, it will have to prove that or else state it in some other way that is agreeable to you if some transaction actually took place. Is that correct? You're not admitting that? TURMEL: I'm not admitting that one, no. Next paragraph, where it says, second last line, "The other percentage goes to John Turmel." O.K. This is the "tip pool." They're talking about the tip pool here, where everybody in the room know that I wasn't involved whatsoever with the tip pool, and Officer Cleary went and told the J.P. and I was taking half of it. So I will not admit that I was taking half of the tip pool. They will have to prove that one. COURT: All right. Do the first two sentences in the paragraph cause any difficulty in terms of an admission? TURMEL: No, that's no problem at all. Salary, things like that. By the way, one other thing: On the third line, where it says, "plus one percent of the tips, could that be changed to "one share?" COURT: O.K. Again the Crown can take that under advisement. TURMEL: All right. Because every employee got one share of the tip pool pro-rated on hours. Of the hundred percent, I didn't take fifty. So if they can make that "one share," then Mr. K's statement is correct, except that the fifty percent went to me, that wasn't. Paragraph 1.090, fourth line, last word, "They had to tip the dealer." O.K. I object to the word "had." They "could." COURT: O.K. So you're saying that you're position is, if that was made an option of the players, the players could tip the dealer and that would be satisfactory to you? TURMEL: Could tip. That's right. As long as -- well, it's admitted later in other of his statements that there were times when there were no tips. COURT: And, if the Crown wishes to prove an obligation, then they have to prove that through evidence. TURMEL: Yes. O.K. Paragraph 1.092. "That they need these tips to pay the rent and expenses." O.K. Well, I object to both those two. I paid the rent personally, and expenses at Topaz. The dealer's tips, I never touched. That would have been stupid. 1.093, Oh no. There's the proof. Third last line, "With the exception of two winning pots where there were no tips." So obviously it wasn't forced. But, anyway, I thank God he did mention it at that point. I do believe I found nothing else objectionable in their statement. So, not only do I grant everything I agreed upon in my '89 statement, but everything except those few objections should make this rather easy at this stage. COURT: Mr. Marin, is that of some assistance? You may not have had a chance to review Appendix C recently but it seems to me there are a number of factual matters that are clearly admitted by Mr. Turmel that should serve to limit the issues and shorten the time required for trial. MARIN: Yes, absolutely, Your Honour. COURT: And, Mr. Turmel, you have a copy now of an Agreed Statement of Facts that you specifically prepared for this proceeding, is that right? TURMEL: Yes. I changed a few of the words, kept it identically numbered so that it would be virtually -- well, there's a reason for wanting to keep it identically numbered. And I could provide the Crown with -- I can give him this one. I have it on my computer. COURT: O.K. And is it safe to say then the matters that are not admitted by the Crown, you would required proof by them if they don't agree to those statements? TURMEL: Yes, but, of course, first I'd like particulars. I don't know what all th is evidence means, until they specify what -- they promised particulars two months ago, and then they were screaming Section (a) a month ago. I still want it officially on the record. What section is the Crown using in the gaming and what section is he using in the betting definitions? And I remember in '89 when I said I would like particulars, you just turned to the Crown and said," "Go ahead" and she did. So I'd like particulars now so I can prepare and know which particular sections to defend against. COURT: Mr. Marin, are you in a position to specify? MARIN: Your Honour, there is just one thing I would like to clarify. My friend of the accused had raised the issue of insufficiency of the Information before. That has been decided. All right. So I just want to make that clear. The Court has already ruled on whether it is particular or not. But, be that as it may... COURT: I thought that was a Motion to quash. MARIN: For lack of sufficiency, and I believe the Court found the Information to be sufficient in every respect, and so the Court did not order particulars at that time. But, if I may say this, that I have had the opportunity to indicate it before on the record and lost with time, I believe , and I can do it now. The common gaming house charge, the first count on the information, section 201, the offence is to keep a common gaming house which is the first count. The Crown is relying on the common gaming house definition found under Section 197(a). All right? There are five ways in which common gaming house is defined. It is "kept for gain to which persons resort for the purpose of playing games or" and then there are four alternative ways that consist of a common gaming house. The Crown is relying on the (a) definition of "common gaming house." COURT: Which is kept for gain? MARIN: That's correct. COURT: For the purpose of playing games? MARIN: And I come on this judicial pre-trial to get admissions on the nature of the games played. Secondly, the issue of gain, and I have identified at least nine or ten areas of gain through the evidence that I was going to lead at the trial. The third element would be the place and I believe that there can't be an issue there. So it's really the game and whether there is gain. I mean, it really boils down to something quite simple in my view, Your Honour. COURT: My understanding would have been and correct me if I'm wrong: Those are the matters that were litigated previously. I don't know if Mr. Turmel is in a position or would wish to admit those. I had thought -- Mr. Turmel? TURMEL: Yes, Judge Fontana did rule that there were no sales and Section (a) did not apply. So I'll admit that. COURT: I'm sorry, you're admitting what? TURMEL: That Judge Fontana said section (a) does not apply. COURT: O.K. I had thought that the way that this trial was to proceed, quite frankly, with respect to the factual elements was that almost everything would be admitted, but that you would probably be required to call an expert to testify with respect to the question of whether or not what was taking place in fact was a game, whether or not the premises were being kept for gain for the purpose of playing games. Now, it seems to me are you asking for admissions in respect of those matters now? MARIN: Yes, Your Honour. TURMEL: I don't understand what's lacking yet. I mean I admit the games. I admit everything about the games. COURT: Well, we could go back to the first point which is whether or not you are prepared to admit that the specific games, Blackjack and Poker, are in fact games of chance or mixed chance and skill? TURMEL: They're admitted in there we were playing those games. DET. YOUNG: Your Honour, if I could inject here, I am Detective Constable Young with the Ontario Provincial Police, Anti-Rackets Gaming section. The main focus, we would say, rather than going on Section (a), 197(1)(A), our main focus of our investigation is 197(1)(a), but we are not restricted under 197 to keep our evidence to 197(1)(a), but that is the thrust of our investigation. TURMEL: Oh, I thought they were restricted to the sections that they claimed. DET. YOUNG: We are restricted to the section or the definition and in 197 under the Code under part VII is the definition by which they can offend 201(1) of the Criminal Code, which is keeping a common gaming house. However, they are totally open as far as the violations concerning the sub-sections. We are not -- if we go under section 201(1), that's the charge, keep a common gaming house, and, by that, we are unlimited in the definition under 197. TURMEL: And I though particulars were to limit them. COURT: Yes, my understanding, too, at the elementary level, the purpose of the particulars is to enable the defence to know the charge that has to be met and in the normal course of events, although the broader definition gives rise to a potential liability, once the particulars are offered, then normally, the scope of the prosecution is limited to the particulars provided. I understood that was part of what we were doing. DET.YOUNG: And the focus of that is 197(1)(a), Your Honour. COURT: That's something that the trial judge would have to ultimately to determine but I understood, in terms of particularization, that, Mr. Marin, you were indicating (a) as being the definition. MARIN: That's correct, Your Honour. COURT: All right. So there is an admission with respect to the games. What was the next point, Mr. Marin, you were requesting? MARIN: The aspect of gain, Your Honour, "Kept for gain," that the premises were kept for gain. TURMEL: Well, actually, I was saving this for last, but, I mean, we now have the particulars for the gaming house, Section (a). I would like to take a moment and see how all this evidence we have been discussing now deals with the betting house charge. I mean, therein likes the most ambiguous of all that have to face; with again no particulars there and no evidence there, and I think, before we get into the deepness of Section (a) which is a legitimate attack I accept, I'd like to go on to the spurious sections, the betting house which had no evidence in '89 and have no evidence now and could really facilitate the case if we dropped the spurious charges. I unveiled a chart showing a list of the two sections with all nine subsections and Marin's jaw dropped. He was totally unprepared for any discussion of betting house particulars. I bet he didn't even know betting house had so many different ways of being committed. I mean, I'd like to know what particulars they have on the betting house when one considers that there happened to be nine different ways I can violate the betting house. Under the (a) section, I can enable bets, encourage bets, assist bets. Who know? Maybe I did. Under the (b)s, I can receive, record, register, transmit, pay bets. The point is: I don't know yet what the particulars of the betting charge are, and before we get into what I consider the legitimate case, I would like to deal with the illegitimate charges first, if you don't mind, get particulars of betting house. COURT: I guess it was at an earlier pre-trial you suggested that the Crown may wish to go only on the first count and not proceed on the betting house? Is that your position? TURMEL: Well, not, I'm not saying that they would prefer. I'm just saying that the last three charges are spurious and can be argued so, but let's see if they have any evidence on it when you consider in '89 they had no evidence of betting house when they charged me with it, and now again, they have charged me with betting house once more, and again, I point out there is no evidence of betting house. So I think the best way to show there is no such evidence is to ask for particulars. Does he have any recording slips of bets? Does he have any telephone calls of bets? You know, I mean, which of these particulars or which of these definitions have I violated? I don't know yet and I believe there are none and that could really clean up the indictment considerably to get rid of these ones. COURT: Mr. Marin, with respect to the betting house charge, did you intend to proceed on the betting house charges? COURT: Yes and I presumed we were still on common gaming house and I presume that the answer is that the "kept for gain" is not admitted, and then we moved to the other charges but I would still like to have an answer on common gaming house. TURMEL: Well, I will. I promise to come back to that one in much more depth once we get rid of the ... MARIN: The common betting house, the Crown is proceeding with that. It's essentially the same evidence as used in common gaming house. My friend has full disclosure of all the evidence and all the statements. TURMEL: Well, I have lots of case law that says common gaming house and common betting house aren't the same, and he says he's going to use gaming house evidence to prove a betting house. COURT: Mr. Turmel, does that cause you concern? Your view, I take it, from the beginning is that whatever this is, it could not be considered a common betting house. TURMEL: That's right. Well, yeah, it does cause me concern because it serves to confuse. The last thing I want is a situation where people who aren't gamblers have a chance to be confused about the difference between betting and gaming, and, if we could settle that before we go into a Judge, he'll be able to devote his exclusive attention to no "red herrings." See, first of all, I have a definition of "betting" but I don't think the Crown does, and I think that it could pretty well be easily established in just a few moments, and I am saying here now, I could pull out the Pilon case which stresses that betting is on outside considerations, horse races, Pro-Lines, things you don't control, and gaming is betting on things you do control. Very simple distinction by the Pilon case established and the Marbella case, and I have four or five others explaining the difference between gaming and betting which the Crown did have and I thought might have read. Now, the Crown thinks there's evidence of bookmaking at my place and I'd like to hear -- I don't see any evidence of bookmaking in anything I read so far. I see evidence with respect to Blackjack and I see evidence with respect to Poker. Both games have always been treated under the gaming house laws, have never been treated under the betting house laws, and that's the reason why it was dismissed, sorry, withdrawn in '89 and dismissed in '91. (in Quebec) And not only that, now that they threw in two more bookmaking sections. If one realizes that the business of betting -- well, no, no, I'm in the business of gaming and I admit it. I'm a professional gambler. I'm in the business of gaming. And yet, they are attacking me under the business of betting because they don't have a definition of "betting" versus "gaming." I don't think it's fair that I have to go into a Judge with three "red herrings" and only one good one which could serve to confuse the issue when there's zero evidence now, as there was zero evidence in '89 and '91 of betting, and I think we should clean that, that's the number one criteria to make this the true issue. Is this a gaming house or not? Because there was no bookmaking going on that I knew about. COURT: O.K., Mr. Turmel. Again, I come back to my mandate in this proceeding. All I really have before me is an Information. I'm not entitled to go necessarily into the evidence or require evidence evidence at this point. If the Information and the count on the Information is valid on its face and the Crown says it's going to proceed with it, then I presume it's going to proceed with it. TURMEL: Well, shouldn't the Crown be exposing what evidence they have of my enabling bets, or my encouraging bets, or my assisting or receiving or recording or registering or transmitting or paying bets? COURT: The material that's before you in terms of disclosure should contain all the evidence upon which the Crown intends to rely , and if there is no evidence of betting, then you may have much less concern about that count than you would otherwise. But I can't go any further than that, I don't think, except to ask Mr. Marin, since we are discussing the second count, and there has been a request for particulars, what is it specifically that you're alleging under section 197 for the common betting house? What activities? Is it a) or b) in terms of the definition? MARIN: Again, Your Honour, this is the situation where the Crown will be relying on (a). COURT: That's enabling, encouraging or assisting to bet between themselves or the keeper? MARIN: That's correct, Your Honour. Yes. COURT: All right. don't think I can go any further than that, Mr. Turmel. If the evidence isn't there, then, from your perspective, that's a good thing and if it is, then the Crown is entitled to call it an rely on it. COURT: The question was whether or not the premises were being kept for gain, I think, Mr. Marin? MARIN: Yes, Your Honour. TURMEL: O.K. Well, COURT: I think, Mr. Turmel, again, perhaps, unless there is a need for particulars, then you.... TURMEL: No, this is going to be pretty good. Now I brought along a little graph because I assumed we'd be dealing with Section (a) because that's what it said. Can I put it here for a moment? COURT: Now the point is: Section (a) says "a place kept for gain to which persons resort fort the purpose of playing games," O.K., "of gambling," I put here. Now the point is: What kind of a place "kept for gain" operates to which persons do not resort for the purpose of gambling? Well, obviously, if you have parking, entry fee, coat check, dinner, drinks, food, smokes, photographers, video tames, all these things can make the house money independent of whether there is a game there or not. Now, obviously, we've got four ways when it's a game of finding the game illegal but the mere fact of bringing gambling, whether it be a legal game or not, into this environment makes this a gaming house under Section (a) because it's a place "kept for gain" to which persons resort for the purpose of gambling. Now, for the moment, let's shut down every game in my casino. No Blackjack games, no Poker games. I now say to the Crown: What kind of gain have I made when they are not coming there to gamble? So the (b) section deals with the gambling, the (a) section deals with the house. I think the Crown blew it today. I think this is a big mistake. The fact is I have a letter there from Judge Young, former Judge Young, who explained in one of my o0pinions that the gain out of the house is different than the gain out of the game. I'm saying here the Crown has now restricted themselves to accusing me of making a gain out of the place, like they originally thought I was charging for the cigarettes, and they found out after the raid I wasn't, and they originally thought I was taking half the tips -- mind you, that would be a rake-off under the gaming section -- and they found that I wasn't. I'm saying right now I don't see any evidence taking out the game that there was any (a) section gain possible. If you shut down the Poker and Blackjack, there was no GST-able commerce going on and that's why my statement of admissions for '93 says that the Government didn't ask me to pay or collect GST or anything in my place. No GST- able gain and now the Crown has the problem of coming up with evidence of a gain which would be illegal when the game is there not when the game isn't there. And the best way is an analogy. Imagine they changed the laws, tighter laws in the country. We have a place kept for gain for which persons resort for the purpose of dancing, or fencing or sewing or singing. If you bring a choir into the place, it's illegal, but if you don't have a choir in the place, it's not illegal. Well, it's the same kind of thing. These gains are not illegal under normal circumstances and become illegal when gambling is brought in and now that they've alleged there's none of the illegal games being played, I don't think they have anything left. So I don't know what the Crown wants to do with this now but I think they're dead. COURT: O.K. Well, I think the question is fairly straight-forward and that is whether or not these premises are kept for gain. That was the original question. And if you're prepared... TURMEL: I see no evidence of any GST-able gain. COURT: O.K. So that's not something you're admitting. TURMEL: No. COURT: The next matter, Mr. Marin? MARIN: That's it, Your Honour. COURT: O.K. Could we move on to the second count? You have asked for particulars with respect to the second count. That's been given, in effect, Mr. Turmel? Were there any admissions you were seeking with respect to the second count specifically, Mr. Marin? MARIN: No, Your Honour. COURT: All right. The third count is engaging in the business or occupation of betting and I take it your argument is the same as for the second count, is it, Mr. Turmel? TURMEL: Yes, the business of gaming. COURT: I don't know if we specifically dealt with the fourth count, which is controlling the monies for gambling? TURMEL: Actually, Your Honour, that was an error, and it's unfortunate because that's not in the Criminal Code. It says controlling monies from this section, the bookmaking section. They threw in the word "gambling." They could have thrown in any word they wanted. They made it up, and, of course, the indictment was challenged but it was viewed as valid even though it is not a crime know at law. COURT: All right. So we'll leave that for the trial court then. MARIN: Yes, Your Honour. Just one issue that comes up: Is it admitted that he is the keeper of the place as per section 197(a), Your Honour? TURMEL: I can admit I kept the place but I'm not going to admit I kept a betting house. COURT: I think Mr. Marin, it seems to me, quite frankly, that, if you're asking for admission that Mr. Turmel is keeping a gaming house, it may as well be a plea of guilty. He is prepared to admit that he is the keeper of the premises and the activity on the premises you demonstrate to prove whether or not it is gambling, but I couldn't expect more than that. MARIN: All right. So, he is the keeper of the premises. TURMEL: Yes, that's acceptable. I even admitted in my statement that I did rent the place. So it's already there. COURT: Now, is your admission limited to count number one or does it also apply to count number two? The keeper of premises which the Crown is attempting to prove is a betting house? TURMEL: Yes. Count number two also. COURT: Anything further, Mr. Marin? MARIN: There will -- obviously number three is intimately tied as well with number two, unlawfully did engage in the business or occupation of betting. COURT: Yes, I would think that the fate of both counts will be the same, would it not? MARIN: Yes. So again the keeper of the premises would apply to, as well, count three to the extent that that's necessary. TURMEL: Well, I mean, I don't admit any of it. I mean, I was in the business of gaming so I definitely don't admit the business of betting. That'll have to be proved. COURT: O.K. So you admit to being the keeper of the premises which the Crown is alleging in one instance, the first count, was a gaming house and in the second was a common betting house, and the third at which the business or occupation of betting took place. Those are the allegations but you are simply admitting to being keeper of the premises. TURMEL: Of the premises, yes. COURT: Now does it seem to you, Mr. Marin, at this point in time that we are dealing with a trial which involves largely expert evidence and argument on that evidence, examination, cross-examination and arguments? MARIN: Yes, Your Honour. I would tend -- my own feeling of the case is that there is much less expert evidence than would appear at first lush, because I've identified at least ten areas where I am in a position to show gain, without necessarily getting into the odds and so on, but simply to show that there is revenue, the place was kept for purpose of making money and there are many ways to do that, one of which is to bring in expert evidence. But I think Your Honour is correct that the evidentiary process of the case will be coming down to very few witnesses, actually. I have sort of a feel of around three days, Your Honour. TURMEL: Well, I don't waste a lot of time and I find it hard to believe that -- I have never had an Ontario trial take more than one day. So I honestly believe that, when you look at all the admissions that are there, that they're probably going to walk in with one Officer and one expert like they did the last time. COURT: Can I make a suggestion at this point in time? Could we just take a brief recess? If you could just examine the admissions specifically to this case that Mr. Turmel is prepared to make in conjunction with Exhibit C and the matters that are now on record, I am prepared to give the case obviously whatever time is required to deal with it, but I would like to have some confidence if we have an accurate estimate of time, and if, indeed, it is two instead of three days, that's fine, or three days. MARIN: O.K. Your Honour. If I may just make a comment on the fourth count before we take a break because there are some issues there as well. The fourth count is a charge of controlling monies for gambling related to the offence of engaging in the business or occupation of betting. The additional wrinkle for that charge is that we would want an admission if possible of the bank records showing Mr. Turmel received the money and controlled the gains arising out of the activities of the premises. There's a number of banks, I understand. SGT. CLEARY: Your Honour, if I may interject here, there are five banks involved. One is the casino employee's fund, which does not involve Mr. Turmel. However, there is another bank which involves three separate accounts. So the other ones would only involve one account in each bank with the exception of one which has three accounts. COURT: Mr. Turmel, are you familiar with the accounts of which we are speaking at this point in time? TURMEL: Yes I am and I have absolutely no qualms about admitting that I controlled all those accounts and, you know, and most people in the cage will remember there were six accounts, so, yes, monies went in and out and I am not denying monies were won or lost. COURT: Anything further, Mr. Marin, with respect to any of the accounts? MARIN: No, Your Honour. TURMEL: Oh, one last thing, Your Honour. In evidence, in the Crown's case there is a piece of literature I printed before I started all this. I call it "Operation Blackjack" because that's the name they give. I would be willing to include this in my admissions. If there is anything in here about the operation of the game that they want to use, I will throw this in, also. I mean I made it public to the world, I may as well admit it to the Court. So there's, you know, a hundred K worth of admissions in there that they can also choose to work from. I'm sure they've read it by now, so I'm not going to deny anything. COURT: Does that extend to the fact, Mr. Turmel, that you had knowledge of the contents and in fact were the author of the document? And are you saying that your operations were modelled or that was a blueprint for the operation which gave rise to these charges? So, if the Crown wishes to use part of that, then you are prepared to have it go in as an admission. Is that right? TURMEL: Yes that's exactly right. COURT: All right. Thank you. Can we take perhaps five minutes, then, to see if Counsel with Mr. Turmel can arrive at an estimate of time? Thank you. UPON RESUMING: MARIN: Your Honour, I have spoken to Mr. Turmel in the presence of the Officers and we have come to the conclusion that two days in light of the admissions. The accused sees this as a one- or two- witness case. I intend to call more than two witnesses, but, in any event, two days ought to be erring on the safe side and I would ask that two days be set aside for the trial. CLERK: Mr. Marin, are all of the counts absolute jurisdiction offences? MARIN: They're absolute jurisdictions. COURT: They're indictable offences, absolute jurisdiction. Just a moment. TURMEL: Your Honour, I may be able to help by saying that I was convicted under one of those 202 sections ten or fifteen years ago and it was absolute jurisdiction then. COURT: O.K. Nothing has changed, Mr. Turmel. Thank you very much. TURMEL: As a matter of fact, they're going for a heavier sentence. They've already put in their request for a heavier sentence, past the minimum three months, so it's absolute. COURT: Thank you. The estimate of time is two days. I have some relatively early dates, a number of them, a combination of any two days: January 11th, 12th, 13th, 24th, 25th, February 7th, 8th, 23rd, 24th, 25th. TURMEL: All good to me. MARIN: January, Your Honour, is pretty well out. The 24th and 25th of February. COURT: Oh, of February. MARIN: Yes. In early February, Detective Cleary, who is in charge of this investigation, is on a fraud case until the 11th of February. So if possible, the 24th, 25th of February would be the first suitable dates. COURT: Now, what I will do for the present purpose is set this for courtroom #13 but it may well be that the court actually used will not be 13 but another courtroom, but .... MARIN: That's a gamble, Your Honour. COURT: No. I had some hesitation in stating the courtroom number but that is the courtroom. TURMEL: Gamblers are allowed to be superstitious. COURT: Ten o'clock in the morning in number 13 courtroom, the trial will either be held there or in another court of which you will be advised at that time. So, Mr. Turmel, at this point, could you please stand up? I'll formally remand the charges you until February 24th, 1994 at ten o'clock in the morning, Number 13 court for a period of two days. Thank you very much. And Mr. Marin, will you be ordering a copy of the transcript? MARIN: Yes, Your Honour. COURT: Mr. Turmel, the Crown will have a copy of the transcript which will contain admissions made by yourself or indications by the Crown as to particulars. That may be of some use for you at the trial. MARIN: I've already ordered it. Thank you. CLERK: Would you like a copy, Mr. Turmel? TURMEL: Of the transcript? How much? CLERK: 55 cents a page. TURMEL: Yes. MARIN: You get it cheap. TURMEL: I know. 940208 AFFIDAVIT 1. On page 7 of the transcript of the Dec. 13, 1993 judicial pre- trial hearing, after I had introduced the Agreed Statement of Facts from my 1989 gaming house acquittal, Judge Lennox asked me: COURT: Would you have any objections to their observations going in by way of Agreed Statement of Facts. TURMEL: No. This is Appendix C of the search warrant and I've noted just a few things I do disagree with, opinions mainly. COURT: I don't expect for you and the Crown to reach agreement today but if the only things in issue are the matters you raise, then presumably the other matters are matters of admission that you are not disputing and that's quite helpful. COURT: (page 18) And, Mr. Turmel, you have a copy now of an agreed statement of facts that you specifically prepared for this proceeding, is that right? TURMEL: Yes, I changed a few of the words, kept it identically numbered. 2. I had been informed by Ms. Breault of the Crown's office that the statement of facts would be ready for my agreement by Feb. 2, 1994. On Feb. 2, she indicated to me that the Crown was not preparing a statement for my agreement and was going to rely on the transcript of the pre-trial hearing. I pointed out that the transcript dealt with only issues that were not admitted and that the facts which were admitted had not even been discussed. 3. When Your Honour stated that you did not expect us to reach agreement on that day, the court must have expected us to reach an agreement some day. I further submit that the trial judge should be given a statement of agreed-upon facts, not a statement of disagreed- upon facts. 4. Considering one of the facts I sought to have admitted in the statement was that I had not been called upon by any government agency to collect or pay G.S.T. and considering the Crown has alleged ten or more Section (a) gains I'm supposed to have made, it would would be difficult to defend against those 10 gains without knowing what they were and if they bore any G.S.T. 5. That the Crown is reneging on their undertaking to prepare the Agreed Statement of Facts is disconcerting at best and sinister at worst considering the abuse of process a second "no evidence" acquittal would imply. 6. This Affidavit is made in support of a application for: a) an Order that the Crown complete their undertaking and produce a draft of an Agreed Statement of Facts within 3 days; or b) an Order for the resumption of the judicial pre-trial to put any agreed-upon admissions on the record. #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** PRETRIAL II HELD BEFORE THE HONOURABLE JUDGE B. LENNOX on February 8, 1994 at Ottawa, Ontario. ********** CHARGE: S. 201(1) (2 counts), C.C. S. 202(1)(e), C.C. S. 202(1)(c), C.C. ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self COURT: Mr. Turmel, are there other matters outstanding with respect to the Pre-Trial? TURMEL: Well, yes, Your Honour. I have here a copy ... Now, first of all I spoke to the Crown's office last Wednesday when I was told that they weren't going to be preparing an Agreed Upon Statement of Facts, I then prepared and filed this Motion and after it had been already served and handed in, I was told by Ms. Breault, that she was working on something. I said; "Well that's nice but it's a little late", and then on Monday, yesterday, I was given the Crown's Agreed Upon Statement of Facts. I have a copy here which I would like to give you, as well I have a copy of the Agreed Upon Statement of Facts from 1989 and you will see they are virtually identical except that the Crown has dropped several points which I don't understand the reasons behind the dropping of those points. I've underlined those points in the Agreed Upon Statement from John and Ray Turmel in 1989. Point number 11 was dropped. Not too important. Point number 17 was dropped. Now she entitled it or - I don't know. Mr. Marin did you prepare this with Ms. Breault? MARIN: She prepared it. TURMEL: Number 17 has been dropped and, I guess, they want to dispute the fact that Black Jack is a bank game. Now this was a point made by the Crown back in 1989 and I find it hard to understand why the Crown would wish to consider this a disputed fact at this point. And, of course, the same thing for number 18 and, of course, parts of number 19. These are important facts relative to the case which the Crown thought sufficiently important to present to you in 1989 and now we see that some relevant information has been chopped out of this draft Agreement between us and I just don't understand why this information wouldn't be included unless the Crown would rather spend time proving it's a bank game. So just to start with I think very much that the original statement, as handed in from 1989, should be a starting point unless the Crown has valid reasons for not wanting any of those admissions put in at this stage. It can only complicate things at trial. So can we start with just this piece first and find out what Mr. Marin hopes to accomplish by deleting these portions? COURT: I don't know if that's a particularly useful exercise, Mr. Turmel. I'm not in a position to compel anybody to make admissions or to seek admissions. I don't know. Mr. Marin, was the one Agreed Statement of Facts prepared using the other as a kind of model? MARIN: Yes it was, Your Honour, and I can indicate for your benefit and the benefit of Mr. Turmel that we simply went through the exercises sitting around a table and putting down on paper what we could not dispute. I don't remember the particular reason why this one was dropped but we tried to put in as many of the facts as Mr. Turmel wanted in. TURMEL: Well again, Your Honour, I think that the original start should be what we had in 1989, unless ... COURT: Well not necessarily, Mr. Turmel, because each fact situation is different. You keep trying to equate this and it may well be directly equated to the 1989 situation but matters that aren't admitted, of course, are matters that require proof. TURMEL: So does the Crown choose now to prove Black Jack is a bank game rather than accept my admission? is what this point boils down to, point 17? I admit it's a bank game and is the Crown going to hope to prove that and bring witnesses rather than just accept my admission? I figure the more I admit, the less we have to do. COURT: Perhaps we could simplify it somewhat. Point number 11, of course, is specific to the charge dealing with February, 1988 (sic) as you said that. TURMEL: By the way, Your Honour, I had prepared ... This is the one I handed into the Crown. It had up-to-date information for this case here including the address on St. Laurent and the address on Baxter Road and the fact that 4,000 people came instead of several dozen. But I mean I drafted it identically. COURT: I take it, Mr. Turmel, that what you're really saying to me is that if the Crown wished you're prepared to make admissions identical to those made in 1989 with respect to the paragraphs you pointed out? TURMEL: That's right. COURT: And in addition to make admissions as set out in your Agreed Statement of Facts? TURMEL: That's right. I assume we'd make another and we'd start with this as a basis. I don't understand these deletions because they seem to be things that the Crown is going to want to spend time proving and yet I admitted them in '89 and they didn't have to prove them then so why would they choose to prove something I'm willing to admit? COURT: I find it a little bit odd that you seem to be complaining about matters that you think strengthen the Crown's case, the Crown not being prepared to admit them. TURMEL: Well it may be so that, you know, they may have a little more difficulty proving it's a bank game without an admission but I figure that's a large waste of time. Specifically point 17 and 18 the ones dealing with the game. I'd like them to mention that it's the same game and best done if they admit the same facts. What's the purpose in trying to, you know, not admit it's a bank game when the Crown is going to want to prove that eventually anyway. COURT: This process is a little unusual. First of all I'd like to say that in terms of the Pre-Trial process I certainly appreciate the efforts that you're making, Mr. Turmel and Mr. Marin, essentially to limit the issues to those which are actually in dispute and to provide a rather full Agreed Statement of Facts. It greatly facilitates dealing with the matter both in a Pre-Trial and, of course, at trial. The way that Agreed Statement of Facts work is that there must of necessity be an agreement with respect to the particular fact of which admission is sought. The Crown is free to admit, or not admit, anything that you're prepared to admit. You're free to admit, or not admit, anything the Crown would like you to admit and the balance of those facts which are not admitted become the subject of the litigation and of evidence and argument. It's somewhat awkward for me to sit here and enter into what amounts to a negotiation between the defence and the Crown as to admissions when it is really entirely within the capacity of either of the Crown, or of yourself, to make or not make admissions as you will. You seem to think that the Crown will wish to prove that the game of Black Jack is a bank game. That may well be the case. I don't know if that's Mr. Marin's view or whether he intends to call evidence on it but, at least, when an Agreed Statement of Facts is prepared and presented I would assume that you could presume that the document provided to you which is entitled Undisputed Facts Between the Parties. I believe that's a Crown document constitutes the admissions the Crown is prepared to make and the Crown is accepting. So they're joint admissions. No one party can bind the other to make a decision. You can admit certain things which the Crown could then refuse. The ultimate, for example, you could admit you're not guilty and the Crown may choose not to accept that. That's more a question of fact in law. So you can't bind the Crown by making an admission. The Crown may wish to prove the fact which you admit or may wish to prove something slightly different but I take these as being documents, joint documents. So what has happened now is you've made a series of admissions, the Crown seems to have taken the bulk of them and put them in a list of undisputed facts. You've produced another document, which you entitle Agreed Statement of Facts which contains admissions you're prepared to make. If the Crown wishes to accept those as admissions it will, if it doesn't it won't and the same goes for you. Do you follow that logic? TURMEL: Yes, I do. It's just that I'm kind of shocked why the Crown would delete these portions when they are going to have to prove them in court. COURT: I would think that when Mr. Marin has a chance to review that he may be in a position where he would tell you, in fact, that he is going to accept the admission and doesn't wish to prove it. TURMEL: It could be admitted at trial I suppose. COURT: That's right. And really if in your view defending this case, matters which you are prepared to admit are essential for the Crown to establish its case and the Crown wishes not to have those as admissions then in point of fact you may actually benefit from that. TURMEL: I appreciate that angle and I just, you know, my purpose was to try and make the admissions as close to the 1989 ones for an analogous reason. If the Crown wants them well the point is I've made the admission at a Pre-Trial earlier than these were all made. COURT: As I said and I say it again, because I think it is worth stressing, that in cases like these, or such as this one, often take considerably more time than we have set aside. The reason that we have been able to set the limited time for the trial is because you have been more than generous in terms of the agreements that you're prepared to make with facts and, of course, that's the Court's experience with you in the past is that you seem to be prepared, which is unusual for a person representing himself, to deal with those matters that would appear fundamentally in issue. We appreciate that but we can only go so far and if you're prepared to make an admission which the Crown doesn't choose to accept then there's nothing I could, or should, do and there's nothing that necessarily you could do which would change that. I would suspect that as we get closer to the trial date that Mr. Marin may well be in a position to indicate to you that certain of the matters which you've stated in your Agreed Statement of Facts are, in fact, matters which the Crown is prepared to accept by way of admission. TURMEL: Okay. So what they chose not to accept is fine by me. But I mean what this is ending up to be is John Turmel admits all the obvious facts and the Crown admits none. For instance, if you take a look at the one titled; Regina v. Turmel, Agreed Statement of Facts there are some statements at the bottom there that are important for me to know whether or not I'm going to have to prepare a defence to these allegations, like point 20. Point 20 was not on the original one in 1989 because it was germane to 1993. That the tips given to Turmel's dealers were the sole property of the dealers. Now is there any dispute with that point? My point is; should I actually go out and subpoena all my dealers to come in because it looks like the crown wants to dispute that fact or are saying that they have evidence that I did take part of the dealers' tips. I mean, from a Defendant's point of view, if this is not going to be an accepted statement I'm going to have to bring in all the dealers and have them say. So that's one example of an admission that I would like from the Crown. I mean it can't be a one way street. There's two or three here and the second one therefore is the Goods and Services Tax. Now if the crown has any evidence of any government body or any time when I was charging, or collecting, G.S.T., fine let's hear about it and I can prepare a defence to it. But if the Crown is not going to present such evidence let's take that out so that I don't have to prepare a defence against a possible accusation of collecting G.S.T. MARIN: Well just on that point, Your Honour, may I say this that I have already explained to Mr. Turmel what my position was on that and it is that we are not alleging that he did pay it. We don't know if he did not pay it. We have no information on the G.S.T. So what I've told him is that we can't sort of go along on an Agreed Statement that he hasn't paid G.S.T. when it has not been claimed on him when I don't know if it's true or not. So I'm saying if he calls evidence that he hasn't paid G.S.T. I mean there's no way for me to contest it at this point but I can't go along with an Agreed Statement of Facts on it because I don't know. There's no way I can verify that. TURMEL: But you don't have any facts that, you know, anyone did... I mean is there any evidence at all of any transactions with G.S.T. and if there are 1 will know what to defend against. Now the Crown is now saying there is no evidence of any G.S.T. transaction and that's fine by me as an admission. MARIN: Mr. Turmel has received full disclosure of the case. There's nothing concerning G.S.T. on it. I'm not aware of anything concerning G.S.T. COURT: It's not your position, or not your evidence, that Mr. Turmel has in fact been called on to collect, or remit, G.S.T. You have no evidence of that? MARIN: No. Neither do I have evidence to the contrary. COURT: Well the absence of evidence is the same as no evidence, so there's nothing to establish that. MARIN: That he has been called upon to pay G.S.T.? COURT: Yes, that's right. MARIN: That's right. TURMEL: Well that's good enough for me if this counts. COURT: Well everything ... What Mr. Marin is saying is he has no evidence in his possession to show that you've been called upon at any time to remit or collect G.S.T. TURMEL: Well I'm happy then. COURT: So you will not hear that in evidence and presumably not in argument because there will be no evidence to support it. TURMEL: That one's solved. If we could go back to 20 for just a moment. Do I have to prepare any defence at all to an allegation that I touched, in any way, the dealers' tips? Oh, one last point. One last piece of paper I was given by the Crown's office is their short Synopsis of Admission. MARIN: Actually there are three things. TURMEL: And the third one says I had control of all bank accounts and if you remember correctly I didn't have control of the dealers' tips account. It was the only bank account I did not control and I do believe at the Pre-Trial the officer did admit that the dealers' tips had their own account. So that line there, in the third one, it can't be control of all accounts, but it would be all but one. COURT: The matter you have now raised is whether or not you had control of all of the bank accounts and your position is there was one account over which you had no control and that was the tips? TURMEL: Yes. That was admitted by the officer at the Pre-Trial. Okay. Well that's strictly for bank accounts but point 20 will solve my having to call any employees to discuss tips whatsoever. That the tips given to the employees were their sole property. Does the Crown allege any evidence that I, in any way, touched any of those tips. If so, I'll prepare a defence but if there is no such evidence that I touched the tips we have another admission which saves a lot of work. MARIN: Yeah, but I remember going through that, Your Honour, and it's not part of the Agreed statement of Facts because it's not admitted by the Crown. COURT: Do you expect to call evidence then that the tips were, in fact, under Mr. Turmel's control or are you going to ask the Court to infer that from the evidence which is called? MARIN: Yes, one or the other, Your Honour. COURT: Because if that's the case, Mr. Turmel is absolutely right, he will have to be prepared to meet that allegation. TURMEL: I mean I'll have to call... I can put all hundred employees on the stand, Your Honour. What a waste. I guess the question would be; do they have any evidence that I touched the tips? MARIN: I'm taking notes, Your Honour, of the points raised by Mr. Turmel and if at all possible I will notify him, hopefully this week - by the end of the week, as to a final ... I'm going to review again the admissions what Mr. Turmel is seeking and notify him through Claudette Breault, who is an articling student for our office who has been assisting on the file. TURMEL: And can I just bring up point 23 which could also serve to focus my defence which is that all monies that I did earn were the results of activities of Poker and Black Jack. If the Crown will admit that they're looking at my earnings at Poker and Black Jack it allows me to restrict my defence to this point or do they allege any other sources of income? COURT: Well there's that paragraph 20 that causes a problem there, I think, because if paragraph 20 isn't admitted then presumably it arguably affects 23. So that's something I presume Mr. Marin would want to speak to the officer about. MARIN: Yes. And 23 definitely is not acceptable to the Crown. TURMEL: So, in other words, there is an allegation of other sources of income other than Poker and Black Jack. Will I know what they are so I can prepare a defence? He did mention ten sources of gain and I would certainly appreciate finding out what they were and I'd be able to prepare my defence against those ten sources of gain. MARIN: Well one, I believe, has to do with the tips issue as pointed out by His Honour. TURMEL: Tips. MARIN: And that I'll be able to advise by the end of this week. I have nothing else to add. TURMEL: Other than tips ... In other words I should prepare a defence tentatively for a maximum of tips being the only other ... MARIN: I'm not just saying tips. I'm just saying that he's got disclosure of the case and I'm not prepared to go any further at this stage. COURT: Mr. Turmel I think, probably in the normal Rules of Pleadings such as they exist in criminal cases, that's probably that you're entitled to and have to rely on and that is that the witnesses' list and the witnesses' summary of evidence is the evidence from which Mr. Marin will either be proving 23 or attempting to prove the contrary of 23 or asking the Court to draw inferences. I don't think we can go any further than that. TURMEL: But I've gone through them all and I've heard lots to do with Poker and Black Jack but I hear no inferences from any other source. Now he can't bring up anything he hasn't given me so far? COURT: The disclosure, I'm told, is complete. And you have remedies if there is evidence called of which you have not been given disclosure if they attempt to call that evidence. Was there anything else? My concern, quite frankly, here Mr. Turmel and it's a limited one at this point because this is a continuation of course which is itself unusual of a Pre-Trial and there is a trial date set. Is there any other matter which potentially, from these documents, affects your defence rather than the Crown's case? TURMEL: Well, yeah, there's the last one now. I did make a Motion yesterday before the Trial Judge, hoping that now that the Crown had admitted that the only games in evidence were Black Jack and Poker to quash the betting house charges. I mean I've tried to ... COURT: I'm sorry, I'm going to interrupt you. I can't re-litigate the matter. I'm going to hear the Motion and I'm not going to make an Order. TURMEL: No, I know. It wasn't really delved into. It was put off for the trial but the point is I want to make the Crown understand that I've tried to be reasonable and I believe that if the Crown is going to continue to be unreasonable about the betting house charge, I have 4,500 witnesses here who perhaps one of them did see me book a bet. Now if the Crown wants to allege that I actually ran a betting house, well you know, I can bhe unreasonable too. I don't want to be unreasonable and come across like an unreasonable person but I'm ready to pass these subpoenas through my printer and just merge-file all these names and start serving them and see if there's anybody out there who will back up the Crown's allegation that I ran a betting house. COURT: Did you see any evidence of betting in the Summaries of the evidence given to you from the witnesses to be called by the Crown? TURMEL: The point is we don't have a definition of betting. Maybe the Crown does. The Crown alleges they see evidence of betting. I don't. Maybe we could agree on a definition at this stage. What is the difference between betting and gaming? COURT: That's ultimately a matter again for the Trial Judge, I think, to determine. Mr. Marin, at this point, do you intend to proceed with the betting as well as the gaming house charge? MARIN: Pardon me, Your Honour? COURT: You intend to proceed with the betting as well as the gaming charge? MARIN: Yes. I see it, Your Honour, as being a legal issue as to what are the elements of the offence. It's a legal argument to be based on whatever evidence is presented. I've looked at the cases of Mr. Turmel and I believe it's a legal question to see what the Code understands as betting and what the Code understands as gaming. COURT: So factually you don't intend to call any other evidence than that disclosed to Mr. Turmel. All of the witnesses will state your belief what is included in the summaries presented to Mr. Turmel? MARIN: That's correct. COURT: And you're saying that on the basis of that evidence the Court will be asked to conclude that there is, or is not, betting? MARIN: That's correct. COURT: So, Mr. Turmel, you're of course welcome to call whatever witnesses you require. TURMEL: Yeah, but I mean I don't want to be unreasonable. COURT: No, but it seems to me that Mr. Marin is probably correct in that ultimately whether or not what is established in evidence constitutes betting will be a matter for the Judge to define and to interpret by the application of the law to the facts which are established. You can subpoena obviously whomever you wish for whatever purpose as long as it's relevant but on the basis of the disclosure I was given it seems that the thrust of the Crown's case is clearly gaming. Sometimes in the Pre-Trial process we try to make an assessment of the evidence and I would think that you are at a relatively low risk in terms of betting and I'm sure that's your view also and I don't ... TURMEL: Yes. Except that I've had some sorry events happen to me in the past that didn't seem logical. COURT: Well we can't simply circumscribe this so it becomes an academic exercise or a mathematical exercise. A trial is something more than that, it's am organic process and if the Crown wishes to maintain that charge and attempt to argue that it exists on the facts, you have the facts and the question is whether or not that the facts established constitute betting. TURMEL: Well it's just that it seems that the evidence seems clear from the Pre-Trial that it's cards and, you know, the case law seems clear that cards are gaming not betting. COURT: I'm not going to disagree with you, Mr. Turmel, but I just don't think we're in a position ... You've tried now by a Motion. You had a Motion before, I think, before Judge Nadelle. I think these matters are matters that are left for trial and, quite frankly, on my view of it it's best left for trial, if you will, at the end of the Crown's case. If at the end of the Crown's case you believe that there is no evidence of betting then that, without wishing to give you legal advice, is probably the appropriate time to bring a Motion with respect to that count, not at the beginning but at the end of the Crown's evidence. TURMEL: Well if you will remember though in 1989 and 1991 those charges were dismissed because of a lack of evidence and autrefois acquit would apply if it's a lack again which has got to be done before the trial. COURT: Well I'm not going to dispute legal issues with you. I think it's best left for the Trial Judge and, quite frankly, I don't see the Crown maintaining the betting charges any particular obstacle to your defence the way that I understand it, I think it would be an exaggeration to start subpoenaing the witnesses that you have who actually attended the premises, the 4500 people. TURMEL: Well I know, I know. I could if I wanted to be unreasonable but I just think it's unreasonable that the Crown doesn't sit down and look at all this case law I've presented of cards and gaming. COURT: But I think what we can conclude from today's hearing is that in terms of a mutual Agreed Statement of Facts, or separately produced, that those points that are common are clearly agreed. You have offered other admissions that Mr. Marin may be in a position to accept and, as I understand, he said he will advise you of that or attempt to do so in the course of this week. TURMEL: And I'm free, I suppose when he starts to present proof, to interject and admit it at the trial? COURT: No question. TURMEL: Okay. COURT: No question. All right. Thank you very much then. TURMEL: Thank you. AFFIDAVIT 1. Over the preparation period, the Crown has failed to meet the following undertakings: a) to dispense with unnecessary witnesses; b) to produce an Agreed Statement of Facts; c) to disclose 10 areas of Section (a) identified; d) to correct the Undisputed Facts from the Transcript; e) to reconsider disputed admissions. 2. At my Dec. 13, 1993 judicial pre-trial, in order to shorten the time for trial and dispense with unnecessary witnesses, I entered the Agreed Statement of Facts prepared by Nicole Cote, Crown in 1989 case which necessitated calling only three Crown witnesses. To similarly expedite this trial, I offered Mr. Marin at least the same admissions in a new draft of an Agreed Statement of Facts with reference to this case. I also admitted to the 30-page Appendix "C" of the Search Warrant with less than 10 disputes or corrections for any admissions therein which may be sought by the Crown. The transcript details the discussion of only disputes and not admissions. I also entered a 30-page document titled Operation Blackjack for any admissions found therein. Though Mr. Marin had mentioned perhaps needing three weeks for the trial, at the end of the pre-trial hearing, on page 40 of the transcript, he stated: "We have come to the conclusion that two days, in light of the admissions. The accused sees this as a one- or two-witness case. I intend to call more than two witnesses, but, in any event, two days ought to be erring on the safe side." I expected the prosecution to take one day as one of those days was surely slated for the Defence. 3. On page 21 of the Dec. 13, 1993 pre-trial transcript with respect to the sources of Section (a) gain alleged, Mr. Marin stated: "I have identified at least nine or ten areas of gain through the evidence that I was going to lead." 4. Mr. Marin entrusted Ms. Breault, an articling student with the Crown's office, with the negotiating and drafting the Agreed Statement of Facts. On Feb. 7, 1994, the Crown submitted one document titled "Undisputed Facts from the Transcript" which erroneously stated I had admitted to controlling "all" bank accounts including that of the dealers' tips. 5. The Crown also submitted a document titled "Undisputed Facts between Parties" based in whole on the Crown's 1989 Agreed Statement of Facts but with several deletions. In 1989, Ms. Cote had sought to have me admit rather than have to prove: Fact 11 that gamblers had attended to play; Fact 17 that Blackjack is a banked game; Fact 18 that gamblers could refuse their right to play the bank; Fact 19 that the bank was always kept by me or my agent when there were one or more players; In 1994, the Crown has chosen to dispute those former mutual admissions. 6. On Feb. 8, 1994, upon my motion to resume the pre-trial, I mentioned that Officer Cleary, on page 38 of the Dec. 13 pre-trial transcript, had stated: "There are five banks involved. One is the casino employees fund which does not involve Mr. Turmel." Mr. Marin noted the error. 7. On page 10 of the Feb. 8 pre-trial transcript when I pointed out the deletions of what the former Crown had thought to be essential elements, Judge Lennox pointed out that having to prove essential elements that would have been admitted could weaken the Crown's case. Mr. Marin undertook to review whether he was going to concur on the admission of those essential elements or take the time to try to prove them at trial. 8. The Agreed Statement of Facts I had originally drafted sought an agreed admission that that there were no commercial GSTable transactions. On page 14 of the Feb.8 pre-trial transcript, the Crown did admit Fact 21 in my draft that I had participated in no GSTable transactions but this was never added to the Undisputed Facts. 9. On page 19 of the Feb. 8, 1994 pre-trial transcript, it says: TURMEL: So, in other words, there is an allegation of other sources of income other than Poker and Blackjack. Would I know what they are so I could prepare a defence? He did mention ten sources of gain and I'd certainly appreciate finding out what they were and I'd be able to prepare my defence against those ten sources of gain. MARIN: One of them has to do with the tips issue as pointed out by His Honour and that, I'm going to look into by the end of this week and I have nothing else to add. 10. On Feb. 16, Ms. Breault faxed me the amended drafts of the two documents. Unfortunately, none of the undertakings were met and no witnesses had been dispensed with. 11. On Feb. 17, 1994, I asked Ms. Breault to disclose a list of the witnesses the Crown was going to call. She indicated the witness list that I had been given was sufficient. I pointed out it had over 90 witnesses and asked if she intended to subpoena them all. When she admitted that the Crown was not going to be calling all the witnesses, I explained that I wanted a list of only the witnesses the Crown was going to call and I wasn't interested in those witnesses the Crown was not going to call. I couldn't seem to communicate that Mr. Marin's comment about the admissions lessening the time necessary for trial was an undertaking to inform me of the witnesses to be dispensed with. 12. On Feb. 18, 1994, at a meeting with Mr. McDougall who was representing Mr. Marin in another matter, it was impressed upon him by all those present that if 90 witnesses were on the list, 90 witnesses would have to called for the defence to use the full complement of witnesses on the list received. He was strenuously urged to have Mr. Marin deal with that undertaking. I further enumerated the other undertakings that had not been fulfilled in the preparation of the Agreed Statement of Facts and the identification of the ten alleged Section (a) gains. 13. On Feb. 21, 1994, Mr. Marin faxed me a list of anticipated witnesses which included 20 names, hardly the paring down expected number for the announced two-day trial. In 1989, the legal issues were established on the basis of an Agreed Statement of Facts and the testimony of three witnesses. 14. Considering Point 4 of the Undisputed Facts between the Parties admits how much rent John Turmel paid at both locations, it seems the two landlords who were subpoenaed should have very little if anything to add. After that admission in 1989, the landlord wasn't even called and with that same admission now, I am quite interested in learning what else they could possibly have to add to the Crown's case to justify their presence on the witness list. 15. No other admissions were added to the Undisputed Facts between Parties other than that I did not control the dealers' tips account; yet, the word "all" was not deleted from the statement that I controlled "all bank accounts" in the "Undisputed Facts from the Transcript." This direct contradiction between facts in the two documents is one of the unfortunate results of producing a two- document substitute where a one-document Agreed Statement of Facts would have more than sufficed. Why the Crown chose to produce two documents with rather unheard-of names instead of an Agreed Statement of Facts is unclear but it certainly confused them enough to miss the contradiction. 16. None of the ten areas of gain the Crown stated it had identified have been disclosed. The Crown had forestalled a special plea of "autrefois acquit" on the basis that those ten areas of gain had been identified and has yet to disclose such identifications to the Defence. 17. My 150 former employees have been asking for their T4 slips and Revenue Canada says they must be mailed out by the end of February. Incomplete disclosure of the computer files has hampered my ability to accomplish this civic duty. My book-keeper, Howard Greenberg, telephoned Ottawa Police Sgt. Cleary to ask that he might come to the station and print out the T4s on the seized equipment or make an electro-magnetic copy of the subdirectory with the necessary financial information on a diskette. It's as easy as putting an electro-magnetic diskette in the A: disk drive, moving to the data subdirectory on the hard disk and typing: COPY *.* A: which leaves the information on the hard disk intact while sending a copy of that electro-magnetic information to the diskette in the A: drive. Sgt. Cleary refused. 18. I telephoned Mr. Marin and asked if he had any objection to my receiving disclosure of the financial information on diskette and he did not. But when I called Sgt. Cleary, I was told it couldn't be done. 19. A Revenue Canada agent visited Sgt. Cleary to help us obtain access to the tax-information but Sgt. Cleary told him that sufficient information had been disclosed for me to meet those requirements. I do not know if Sgt. Cleary has any accounting expertise with respect to selecting which records and fields of information are necessary for the completion of Canada's tax forms. Logically, it's to be expected that all the computer's files deemed relevant by the prosecution were printed out and disclosed. But it's not logically to be expected that all the computer files deemed relevant by the defence were also printed out and disclosed. I have checked some of the printed-out information I was given in disclosure against my knowledge of the database structures I created and I can show that many fields of information in the financial and witness databases were omitted from the printed records. Since certain fields of information have been found missing from the printed transcript, the Defence can not know if all the information relevant to the Defence has been printed out unless the Defence also has access to the data's electro-magnetic medium. 20. With the video tape evidence, the Crown disclosed the information in both the electro-magnetic medium and paper transcript medium. Having provided data in the electro-magnetic form which is compatible with the video technology seems to have in no way prejudiced the Crown's case there. Since the original electro-magnetic information is as easily disclosed on the diskette medium as on the video tape medium, there should be no reason full disclosure would not include production of full information on both media. 21. Because the Crown has the information on an electro-magnetic medium, they have the capability to examine the prima facie electro- magnetic evidence with the computer program that created and managed it. In the financial reports disclosure on Feb. 14, 1994, witness Penny Cookson says in point #2.2b: "I received the available photocopies of the Income Statement prepared using "AccPac Simply" program. 22. She notes a financial statement prepared with that program over the 18-day period in question which showed an average weekly win of $74,498.05. She also noted another financial financial statement prepared for a selected 14-day period within that 18 days which showed that I averaged $102,504.75 per week, a weekly increase of 28,006.70. This 38% percent weekly increase was accomplished by ignoring a stretch of three days where I had suffered losses. It's evident counting wins and not counting losses makes the wins look bigger. 23. The Crown's use of AccPac Simply to present some of the information in such a way as to infer the largest possible debit by not counting some losses could have been matched by my use of AccPac Simply to present some of that same information to infer the smallest debit by not counting some of the wins. Not counting the wins would certainly have been as valuable to the Defence as not counting the losses has been to the Crown. 24. My defence has therefore been impaired by my inability to examine the evidence in the same detailed fashion as is available to the Crown. I've been restricted to examining less than all the information with pen and paper even though I too possess the same technological tools of retrieval and examination for the prima facie electro-magnetic evidence. If there are going to be accounting arguments, I should have the same information management capabilities as the Crown. To restrict me to a paper copy of electro-magnetic information seems to be a fundamental lack of disclosure. 25. This This Affidavit is made in support of an application for an Order that the Crown complete the following undertakings: a) to dispense with unnecessary witnesses; b) to produce an Agreed Statement of Facts; c) to disclose 10 areas of Section (a) identified; d) to correct the Undisputed Facts from the Transcript; e) to reconsider disputed admissions. f) to complete full electro-magnetic disclosure. Sworn in Toronto on Feb. 22, 1994. 940223 SUCCESS Mr. Marin faxed me a letter at 5p.m. Dear Mr. Turmel: Further to our letter dated Feb. 21, 1994, we have now received your Record for the Motion scheduled to be heard Feb. 24 and we wish to advise you of the following: 1. Re: "Undisputed Facts between Parties." The facts listed as 11, 17, 18, and 19 in paragraph 5 of your record are not disputed. 2. Furthermore, please be advised that the Crown will not be proceedings on the betting charges listed for trial on the 24th of February. We will therefore be withdrawing the following betting house charges s. 201(1), 202(1)(c) and 202(1)(e). 3. We would like to meet with you Thursday at 9a.m. at the Crown's office in order to sort the required witnesses so as to further reduce the witness list. Please confirm receipt of this letter before 4:30p.m. since our offices are closed after that time. Andre Marin This is the Affidavit that broke the betting house camel's back. It basically showed them the case law they might be arrayed against as well as quoted every put-down to date. AFFIDAVIT 1.0 On April 3, 1989, Mr. Matt Sagle defended gamblers charged with being found-in a betting house for playing at "Turmel-style" Blackjack. Mr. Sagle is an accomplished "card-counter" at the game and could easily earn a winning expectation. After the Crown had proffered no evidence other than evidence of card playing, Ontario Provincial Court Judge Fontana granted his motion for non-suit and dismissed the charge. 1.1 On April 7, 1989, the Crown then withdrew charge of keeping a betting house against John Turmel. 1.2 On Oct. 22, 1991, Quebec Provincial Court Judge Bonin acquitted John Turmel of keeping a betting house for playing at "Turmel-style" Blackjack. 2.0 The case law seems very clear. In every case, card games were not found to be prima facie evidence of a betting house: BALL (1957)118ccc361qca Betting on horses BOOTH, (1989) Fontana acquittal on betting with cards LEWIS (1949)97ccc268QKB Cards not betting Recording essential MAH SAM (1910)15WLR668SCC Gaming different from betting PILON (1920)32ccc342 Difference between gaming and betting RUSKOFF (1979)41dccc2d93oca/scc Cards not betting TURMEL, (1989) Lennox withdrawal of betting house TURMEL, (1991) Bonin acquittal of betting house 2.1 Betting convictions have always been for bets on outside considerations with the usual bookmaking paraphenalia and activities: BENWELL (1972)9ccc2d158oca Betting on horses DECOME (1991)63ccc3d460qca Keeping accounts Mini-Lotto numbers JARMAN (1972)10ccc2d426oca Recording Registering Betting slips JOHNSON (1915)25ccc124osc Betting slips WILSON (1986)26ccc3d8MQB Recording Placing Transmitting bets 2.2 Other cases which may be procured: BANK OF TORONTO (1878)28uccp345 Betting definition CARLILL v CARBOLIC (1892)2qb484 Betting definition COHEN (1984)15ccc3d231 Bookmaking definition EARL OF ELLESMERE (1929)2Ch.1 Betting definition GHIO (1927)255p.205(dis C.A.2ndDistDiv1 Calif Placing of bets GRUHL AND BRENNAN (1970)1ccc104 Betting on horse GULA AND BERNESKI (1971)17crns129 Taped bet taking HATTY (1955)111ccc145nbca Betting contracts definition HORBAS (1970)5ccc46 Betting contracts KELLY (1982)qca500-20-000008-803 Sports betting LEBANSKY (1941)75ccc348 Betting definition LUNCHEON (1929)A.C.400 Betting definition MOZEL and McCauley (1973)5ww4333 Bookmaking vs betting house POWELL (1899)a.c.143 Bookmaking definition SILVESTRO (1965)2ccc253 Receive Record Register Transmit Pay bets with phone taps - No need record/ Enough simply enabling the receiving TOTE INVESTORS (1967)3wlr1239 Betting definition TRUDEL (1969)3ccc95 Betting contracts VACCARO (1974)27crns162 Betting on baseball 3.0 On July 20, 1993, for organizing games of "No-rake-off" Poker and "Turmel-style" Blackjack in Ottawa, John Turmel was charged under Section 201(1) with keeping a gaming house and and keeping a betting house. Evidently, the Crown thinks gaming and betting house acquittals have to be two out of three. John Turmel was further charged under subsection 202(e) with being in the business of betting and finally charged under subsection 202(c) with controlling monies from any subsection of section 202; in this case, subsection (e), the business of betting. The Crown did not charge any found-ins in my case. 3.1 On Oct. 21, 1993, for organizing identical games in Ottawa, David Booth, one of my former managers, was charged with the same four offences but the other keepers and found-ins were charged only with gaming house, not a betting house offences. 3.2 On Dec. 2, 1993, for organizing "Turmel-style" Blackjack in Mississauga, Denis Mazerolle, one of my former managers, was charged with only gaming house and not charged with betting house. No found- ins were charged. 3.3 Do Dave, Denis and I need one out of three, two out of three, or three out of three to be left alone? 4.0 With respect to the betting charges, the transcript of my Dec. 13, 1993 judicial pre-trial shows: MARIN: (page2) The games of Blackjack and Poker were played." COURT: (page26) Mr. Marin, with respect to the betting house charge, did you intend to proceed on the betting house charges? MARIN: The common betting house, the Crown is proceeding with that. It's essentially the same evidence as used in common gaming house. My friend has full disclosure of all the evidence and all the statements. TURMEL: Well, I have lots of case law that says common gaming house and common betting house aren't the same, and he says he's going to use the gaming house evidence to prove a betting house. COURT: Mr. Turmel, does that cause you concern? Your view, I take it, is that whatever this is, it could not be considered a common betting house. TURMEL: That's right.... I don't see any evidence of bookmaking in anything I read so far. I see evidence with respect to Blackjack and I see evidence with respect to Poker. Both games have always been treated under the gaming house laws, have never been treated under the betting house laws... I don't think it's fair that I have to go into a Judge ... when there's zero evidence now, as there was zero evidence in '89 and '91 of betting... COURT: O.K., Mr. Turmel. Again, I come back to my mandate in this proceeding.... I'm not entitled to go necessarily into the evidence or require evidence at this point..... TURMEL: Well, shouldn't the Crown be exposing what evidence they have of my enabling bets, or my encouraging bets, or my assisting or receiving or recording or registering or transmitting or paying bets? COURT: The material that's before you in terms of disclosure should contain all the evidence upon which the Crown intends to rely , and if there is no evidence of betting, then you may have much less concern about that count than you would otherwise. But I can't go any further than that, I don't think, except ask Mr. Marin, since we are discussing the second count, and there has been a request for particulars, what is it specifically that you're alleging under section 197 for the common betting house? What activities? Is it a) or b) in terms of the definition? MARIN: Again, Your Honour, this is the situation where the Crown will be relying on (a). COURT: All right. I don't think I can go any further than that, Mr. Turmel. If the evidence isn't there, then, from your perspective, that's a good thing and if it is, then the Crown is entitled to call it and rely on it. 4.1 Though card games have never been prima facie evidence of betting house, the Crown has alleged only that "the games of Blackjack and Poker were played" and that the betting house evidence the Crown has to proffer is "essentially the same evidence as used in common gaming house." In gaming we account for wagers by fading them with chips; in betting we account for wagers by booking them with slips. Chips are not used in betting houses and betting slips are not used in gaming houses. It seems a clear distinction. 4.2 In restricting themselves to section (a), enabling, encouraging, or assisting betting, the Crown has acknowledged that none of the five betting activities listed in the (b) subsection actually took place. No one was charged with doing any betting but I was charged with helping. An allegation of a Section (b) activity would seem to be an essential averment before an allegation of enabling such activity can be made. Since no bets were alleged to have been received, recorded, registered, transmitted or paid, I submit that I could not enabled, encouraged or assisted the five such betting activities which are not even alleged to have taken place. 4.3 In failing to charge any of the found-ins from the Booth raid with both gaming and betting offences as Booth himself was charged with keeping both, the Crown has again acknowledged the impropriety of betting house charges against found-ins, none of which placed a wager on anything but cards. 4.4 In failing to charge Denis Mazerolle with keeping a betting house and only charging him with keeping a gaming house and as O.P.P. Officers Bihun and Young participated in all three prosecutions, it now seems that the Crown has backed off the allegation that card playing is evidence of a betting house. I further submit that it would not be equal treatment under the law for my Turmel-style game to be encumbered with defending against the spurious betting house charge when Mazerolle's Turmel-style game was not. 5.0 On Jan. 20, 1993, as the appointed agent for nine of the found-ins at the Booth Club raid, I attended a scheduled judicial pre- trial with four attorney's for the keepers including Matt Sagle for Dave Booth, two police officers and Judge Lennox. Mr. Sagle indicated his disappointment in again having to deal with a betting house charged but unfortunately, Mac Lindsay, the assigned Crown was ill that day and the pre-trial was scheduled for Feb. 2, 1994. 5.1 On Feb. 2, 1994, I again attended a scheduled judicial pre- trial with the four attorney's for the keepers, two police officers and Judge Lennox. Crown David Stewart indicated that Mr. Lindsay was elsewhere preparing for another trial. He wasn't at another trial. He was just too busy preparing for another trial to meet with us. From my audio-taped notes: SAGLE: My concern today was to get the Crown to particularize the betting and the gaming house. In the Turmel case, they've gone on (a) sections in both cases. That's one of the biggest things I'm trying to get out of this. Are you prepared to make that choice? Focus in? STEWART: Not today. 5.2 After discussion of rescheduling the pre-trial in March: SAGLE: Leaving it that late leaves some options to the Crown to make decisions based on what happens later. In other words, they're focused in on the (a) section with Mr. Turmel's trial, and rightly so, but supposing they lose that trial and there's a good indication they will, then they come back and though they might go into (a), they decide to go into (b) just because it's more convenient or they've already lost on one. I want to know what they're going to do on this and get them pinned down so we can decide how we're going to respond. COURT: My preference is to deal with the person who has dealt with has dealt with the previous similar matters and who has carriage of this and can deal with it more effectively... Mr. Sagle, do you have any further concerns? SAGLE: There was a lot of information from the Crown I wanted to get and things I wanted to do today basically with respect to the betting charges and bail conditions. That wasn't urgent. 5.3 Judge Lennox then returned to the topic of this motion: COURT: Was also not one of the concerns whether the Crown would be proceeding on the betting house as opposed to gaming house? SAGLE: Oh yes, certainly. That's the betting house and gaming house sections. COURT: So you want to know: "Is it gaming or betting? Is the Crown going to proceed on one, the other, or both?" SAGLE: Yes. COURT: And secondly, with respect to each one, "Is the Crown relying on (a) or (b)?" SAGLE: Yes, they have basically not gone on betting against any of the keepers but only against Mr. Booth. I was hopeful that Mr. Lindsay would have looked this stuff up and checked the law and cases by now and be in a position to realize the distinction between the two and be able to tell us he wouldn't go on that. I don't suppose there's any chance another Crown could handle this case? COURT: I would, having been involved in the other one, I think you might well be better off with Mr. Lindsay. 5.4 I then brought up the connection between the two trials: TURMEL: Excuse me, your Honour, now it looks like most of the information is going to be pushed off to within a week of my trial or after and it looks like I'm going to have to go and prepare a defence for the betting house charge. Now, I was hoping that the attorneys would be able to reason with the Crown because I don't expect, as a layman, I'll have the same effect on the Crown. And now it looks like no one's going to be reasoning with the Crown until one week before my trial. COURT: Mr. Turmel, this isn't related to your other trial. TURMEL: Well, actually, it is because it's an identical Turmel- style game. We're both facing betting house charges. I don't have a lawyer so I can't reason with the Crown. We have people here with the identical misapplication of the section. Surely their lawyers could sit down with Mr. Lindsay and within half an hour, especially with the case law that's available, convince him not to waste everybody's time. But at this stage, it looks like I'm going to have to go waste my time. COURT: Isn't Mr. Marin the one who's got your file? TURMEL: Yes. COURT: So Mr. Lindsay is of no particular use. TURMEL: The point is there's got to be some consistency. If they drop the betting house because Mr. Lindsay's convinced by his peers that's it's really pretty unusual, perhaps Mr. Lindsay will be able to prevail on Mr. Marin and save me some time. But I don't want to walk into court having to go against a betting house charge which scares me more than the gaming house charge because if the judge makes out a case with zero evidence, I need infinity to win. I have motions prepared here and I'm going to keep going and get back in front of Judge Wright on the betting house alone but I don't want to waste his time or mine. I've already researched a dozen cases and I've got another twenty to go and it's just not right I should be spending time on something ridiculous especially when I'm using transcripts from our pre-trial where you used the words "no evidence" instead of "little evidence" of betting house. I mean, what does it take the Crown? How many hints did you have to give them? COURT: Mr. Turmel, there are two problems here. One is this has nothing to do with Dave's Junction in the pre-trial we're doing here where you're representing the found-ins and secondly, you and I should not be talking about your case in the absence of the Crown who has carriage of it. All we do now is agree to meet again on Feb. 18, twelve thirty. 6.0 When Judge Lennox asked if the Crown was proceeding with the betting house charge in both pre-trials, the implication was an invitation for the Crown to consider the alternate option of not proceeding? Judge Lennox did not bother to ask the Crown if they were really proceeding with the gaming house charge because it makes historical sense. Dealing with this total absence of evidence, Judge Lennox twice said "I can't go any further." I submit the only thing further Judge Lennox could have been contemplating was quashing the charges. If only the trial judge may go further, then the Defendant submits this Honourable Court should quash the betting charges before the Defendant spends any more resources preparing a defence against a completely frivolous and vexatious absence of evidence. 6.1 If the Crown does not have some new case law, even one, which now permits the laying of betting house charges against card games, then the case law which shows that wagering on cards is not prima facie evidence of betting should be accepted and the total absence of evidence of betting should allow the charge to be quashed on a pure question of law. 7.0 On the grounds that the judicial pre-trial has disclosed that all wagers were made at the card games of Poker or Blackjack and that no actual Section (b) betting activities, essential averments, were even alleged, this Affidavit is made in support of an application for: 1) an Order quashing the last three counts of betting offences on a question of law, that is, a complete absence of prima facie evidence; or 2) an Order pursuant to the special pleas of autrefois acquit and issue estoppel quashing the count of keeping a common betting house on the grounds that the Defendant has been formerly acquitted in the identical circumstances in 1991 by Judge Bonin; or 3) an Order staying the betting charges on the grounds their continued prosecution tends to bring the administration of justice into disrepute. 1989 Statement of Facts 1994 Undisputed Facts IT IS ADMITTED: That between the 31st day of That between the 27th day of January and the 24th day of February and the 14th day of February 1988, John Turmel rented November 1992, John Turmel rented a Room 101 at the Bayshore Hotel room at 1141 Baxter Rd., Ottawa located at 2980 Carling Ave. in the (hereinafter referred to as Baxter city of Ottawa. Premises) called "Turmel's Games Room." That between the 13th day of November and the 14th day of July 1993, John Turmel rented several units including 102, 103, 104, 105, and 107 at 2335 St. Laurent Blvd, Ottawa (hereinafter referred to as "St. Laurent Premises), called "Casino Turmel." That the sole purpose of That Mr. John Turmel's renting the room was to enable the purpose in renting the Baxter playing of the games of Blackjack. Premises and St. Laurent Premises was to enable the playing of the games such as Blackjack and Poker. That the cost of the room was That Mr. Turmel had agreed to $600.00 dollars for the montyh of lease the Baxter Premises for $500 February. per week and the St. Laurent Premises for $2,500 per week. That the room had been That Mr. Turmel purchased and cleared of furnishings and replaced personally owned the chairs and by chairs and two professional professional style folding game style folding game tables tables of the two above noted (purchased and owned by John premises. Turmel). That alcoholic and non- That food and non- alcoholic beverages were supplied alcoholic beverages were served to free of charge to patrons. the patrons free of charge. That invitations were That invitations to sent by mail. attend Baxter Premises and St. Laurent Premises were sent by mail. Further advertisement was made in the print media. That the public at large could That the public at large was not attend, than only acquaintances invited to attend the Baxter of Mr. Turmel could attend for the Premises and St. Laurent Premises purpose of playing games. that if a for the purpose of playing member of the public attended Blackjack with Mr. John Turmel or without being referred he was employees or Poker with Mr. John turned away. Turmel and other patrons. That John Turmel himself or That John Turmel or his his employees or at times agents employees would act as cashiers. would act as cashiers. That John Turmel or agents or That Mr. John Turmel or his employees would be on the premises employees would be at Baxter on a regular basis for the purpose Premises and St. Laurent Premises of playing the game of Blackjack twenty four (24) hours a day for with individuals who would attend. the purpose of playing games such as Blackjack and Poker. That no fee was attached to That no fee was sought to attending the premises. enter the premises. That an individual could buy That a patron could buy into into the game at $200. the games at $200. That during the month of That over the period, over February, 1988, a few dozen four thousand (4,000) individuals attended to play the individuals attended to play the games. games. That a maximum limit was set That a possible Blackjack bet on a possible at $100 dollars. That had a maximum limit of $300 and a the minimum limit on a possible bet minimum limit of $5. was $5. That the game was strictly That the games played with played on a cash basis with Poker Poker chips which were sold by the chips sold by the cashier in cashier in denominations of $5, denominations of $5, $25, $100, $25, $100, $500. The patrons could $500. pay by cash or by cheque. That the game of Blackjack That the Blackjack game played being played on the premises was at the Baxter Premises and St. being played "Atlantic City Style" Laurent Premises was based on Blackjack. "Atlantic City Style" Blackjack. That the game of Blackjack offered the player side bets and the chance to be the dealer/banker. That the game cards were That the game cards were dealt dealt from a shoe. That the shoe from a shoe which contained eight contained (4) decks of blue cards (8) decks of cards. and (4) decks of red cards. That the game rules were That the game of "Turmel- posted on several of the walls were style" Blackjack as played on the titled "Turmel's Blackjack Rules." premises is a game between a banker That the game of Blackjack as and a player. played on the premises is a banked game. That although Turmel's rules That although "Turmel-style" as posted indicated that "Everyone rules as posted indicated that may the bank at any time and "Everyone may the bank at any time must be the bank at least once and must be the bank at least once before playing," that a player had before playing," that a player had the right to later concede his the right t to later concede his option. option. That players would play the That the players could play game at a main table where the the game at a main table where the dealer/banker would be Turmel or dealer/banker would be Turmel or his employees or agents. his employees or agents. That the bank was always That the bank was always kept kept by Turmel or an agent where by Turmel or an agent where there there was one or more players. was one or more players. That at any time, a player That at any time, a player could decided to become the could decided to become the dealer/banker, if he so chose, the dealer/banker, if he so chose, the player would then leave the table player would then leave the table if at the time there were more than if at the time there were more than one player present or stay and the one player present or stay and the other players would then leave the other players would then leave the table. He would become the table. He would become the dealer/banker (put up the bank) dealer/banker (put up the bank) against only Turmel or his agents against only Turmel or his agents or employees. or employees. That if other players That if other players were were present at the time, the main present at the time, the main table table would continue playing with would continue playing with Turmel Turmel or the Turmel agents or or the Turmel agents or employees keeping the bank. employees keeping the bank. That a player could not be the That a player could not be dealer/banker against any other the dealer/banker against any player. If a player chose to other player. If a player chose to become a banker, the house rules become a banker, the house rules were such that he was entitled to were such that he was entitled to bank and deal a shoe of cards bank and deal a shoe of cards against John Turmel or one of the against John Turmel or one of the agents only and play a one-on-one agents only and play a one-on-one game in which no other players were game in which no other players were allowed to play. allowed to play. That if a player wanted to That if a player wanted to bank a game against other bank a game against other players, they could go elsewhere players, they could go elsewhere but not in Mr. Turmel's room. but not in Mr. Turmel's room. That Mr. Turmel does not control the TIPS bank account. That John Turmel has not been called on to collect or remit the Goods and Sales Tax on any financial transaction that took place.