#93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** (VOLUME THREE) T R I A L HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT on Thursday, February 24th, 1994, at Ottawa, Ontario. ********** CHARGE: S. 201(1) ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self TABLE OF CONTENTS Exam. Cr.- Re- WITNESSES In-Chief Exam. Exam. FOTIA, Joseph 40 58 61 SHEPPARD, Ronald 78 92 103 & 107 YOUNG, Charles 113 -- -- NESBIT, Harry 115 117 -- ********** E X H I B I T S EXHIBIT NUMBER Put in on Page ONE Blackjack rules. 52 TWO Summary of observations made by Sergeant Fotia. 58 THREE Undisputed facts from transcript of December 13, 1993; undisputed facts between parties; Appendix C. 68 FOUR Lease for Baxter Road location. 69 FIVE Lease for St. Laurent location, and statement. 70 SIX Articles of incorporation of Appotive Developments. 70 SEVEN Two statements of Donald Cribbie. 71 EIGHT Witness statement of Kanaan. 71 NINE Witness statement of Scott Jordan. 71 TEN Spread sheet prepared by Howard Greenberg. 11 Statement by Garnet Barber. 72 12 Binder of banking documents. 76 13 Report of Penny Cookson. 76 14 Statements of Lily and Lester Percs. 77 15 Articles of incorporation of 2869748 Canada Incorporated. 77 16 Curriculum vitae of Ronald Sheppard. 79 17 Formula. 86 18 Summary and printout. 112 ********** THE COURT: Good morning. MR. MARIN: If I may just see the information Your Honour, before the accused is arraigned? Thank you. The information, as it reads, Your Honour, has four charges. The first charge is a gaming charge. Mr. Turmel is to be arraigned on that. The three other charges have to do with betting, and after a very close scrutiny of the evidence and the related case law, I've come to the conclusion, Your Honour, that the likelihood of a conviction under betting is low. Therefore, I've taken the decision to withdraw the three counts relating to betting. THE COURT: That would be counts two, three and four? MR. MARIN: Two, three and four. So we're to proceed on the gaming charge. MR. SAGLE: Your Honour, if I might just make a point on that? My name is Matt Sagle, by the way; Mr. Turmel has retained me to assist in the trial of this matter. Until yesterday afternoon, we didn't realize these charges - we just got a fax at five o'clock last night saying there's going to be a withdrawal of charges. This is in spite of the fact that, right from the very first pretrial, we asked the Crown to withdraw those charges. We indicated we thought the evidence wouldn't support them, but we were forced basically to do all the work and prepare for this trial anyway. I don't know whether it was error or intent, but certainly they've left us in a difficult position. We've had a lot of work to do and it's put Mr. Turmel to a lot of expense. What we'd like to see at this point is that those charges be dismissed rather than withdrawn. All the evidence has been gathered and we were certainly told that it was going to proceed today and we're ready to proceed, and we'd ask that those charges, rather than be withdrawn, be dismissed. At the same time, I believe there are provisions for costs to be awarded in cases where the Crown has acted in such a way as to cause grievous expense to the Defence. I know it's unusual, but this is an unusual situation. THE COURT: All right, do you have any case law to support the proposition that the Crown is not in a position to withdraw any charge that it wishes to withdraw or that would confer jurisdiction on this court to award costs in a criminal proceeding? MR. SAGLE: No, I haven't. The fact is, I've not prepared for that. It was just out of the blue, and I haven't had any chance to look into it at all. But it seems to me that a dismissal creates a situation where it's a dismissal on the merits as opposed to a withdrawal which could be relaid again tomorrow. THE COURT: I agree with you. What I'm inquiring after is whether you have any authority for what it is you're asking me to do. MR. SAGLE: Well, I don't think that - I believe that you can dismiss charges. Obviously that's within your jurisdiction. THE COURT: If there's no evidence. But my understanding is, subject to being corrected by your argument or case law, is that the Crown has jurisdiction to withdraw a charge at any point up until the stage where the accused has entered a plea and evidence has been heard. MR. SAGLE: Yes, well, whether the Crown's admitting that there's no evidence in this case, I think that's what it amounts to. And I think basically it's, to a certain extent, a mis-use of the process to force us to defend -to come to this court prepared to defend this kind of an action, and I think that the Crown will admit that basically there is no evidence, that we're in the same position as if evidence was called and you decided at the end that there was no evidence. And I think the Crown's in the position, really, of saying that they do not have any evidence to support that charge, as they haven't had from the beginning. THE COURT: Mr. Marin? MR. MARIN: Well, speaking of judicial pre-trials, Your Honour, we've had at least four or five where Mr. Turmel has represented himself. It's news to me that he had counsel to represent him today. I'm not sure exactly who to deal with on the case. But to respond to what my friend has said, there's been no evidence heard and the information is still within the property of the Crown and the charge is being withdrawn. It's done routinely in courts, as a matter of routine, almost every day. So it shouldn't come as a surprise. The issue is the accused faced four charges. He's here prepared to defend them. The Crown is not withdrawing all the charges. I'm not prepared to admit there's no evidence of betting. The issue of betting had to do with the legal definition. The facts are the same. That has been clear to Mr. Turmel from the beginning. The issue is whether that, in law, disclosed both gaming and betting. Now, the Crown is withdrawing the betting charge because, in terms of law, in legal interpretation, the gist of the offence relates more to an issue of gaming than betting. So it's for that reason it's being withdrawn. From the beginning, we've never said we had evidence apart from the one disclosed to the accused as to betting. The position of the Crown has been that it's a question of legal interpretation. The position of the Crown this morning is to help focus the Court's attention on the issue of gaming and not betting. For that reason, the betting charges are being withdrawn. THE COURT: Mr. Sagle? MR. SAGLE: Well, Your Honour, I... THE COURT: You are going to... MR. SAGLE: ...I don't want to repeat myself. I do say that it was clear from the beginning that... THE COURT: Mr. Sagle, you are going to be representing Mr. Turmel for the... MR. SAGLE: I will be assisting Mr. Turmel at this hearing, Your Honour. THE COURT: All right. MR. SAGLE: To be honest with you - I know it's a little complicated - Mr. Turmel is very well aware of the law in these matters and in the case itself, but he needs some legal assistance in the court. We'll be trying not to step on each other's toes, but I'll be assisting him, basically, and speaking when it's helpful. THE COURT: All right. In the absence of any authority for what it is that you're asking me to do, I am not inclined to either - I'm not sure I have any power, in light of the Crown's indication that they wish to withdraw the charge, and I'm not aware of any inherent power within the Court to award costs. Unless you're in a position where you're able to provide some authority for what it is that you're asking..... MR. SAGLE: There will be a situation, I think, when we're done with this matter, Your Honour, that there's going to have to be a recess. The Crown's requested us to go over other matters with them. Perhaps I could have half an hour and I might find something... THE COURT: When is the recess being requested? At the outset? MR. MARIN: Well, simply, Your Honour, I'm not sure what to expect from the Defence perspective. We've been going through numerous judicial pre-trials where Matt Sagle has not been there. The accused has made a number of admissions, commitments, that I'm about to file. Do these admissions still stand? Do they not stand? The issues have changed? I'm not sure what to meet now. I assessed this as a three-week-long trial. In view of the admissions, it became a two-day trial. Now Matt Sagle arrives today out of nowhere, and I would like to know where we stand. Are we back to a three-week trial, a two- week trial, a two-day trial? I mean, those are things, before I start the case, that I'd like to know what to expect. THE COURT: All right, if a short adjournment is being requested, then, before the outset, that will give you an opportunity, if there is authority, to find it and bring it to court. MR. SAGLE: I'll see if I can do that, Your Honour. With respect to what Mr. Marin has said, my appearance here makes no difference to what has happened at the pre-trials. Mr. Marin has made certain undertakings at the pre-trials to do certain things, and they're not completed. I believe there are pre- trial motions set here for this morning, which Mr. Turmel will be handling, which relate directly to those. It may be resolved by meeting with Mr. Marin, and maybe not. THE COURT: I have read the materials that have been filed and there is one issue which does raise some concern and that is the issue of disclosure. There's a motion which indicates that it was returnable yesterday in Number Seven Court. I take it that matter was not proceeded with yesterday? In Mr. Turmel's affidavit, he does indicate the failure to provide what is termed as "electromagnetic disclosure," which I take it is business or computer records which have been requested and not provided. I wonder if Mr. Marin can provide some light on that. MR. MARIN: Surely, Your Honour, because there's no need to discuss this, the accused or his counsel, in private. The information I have from my investigators, Your Honour, is that everything that was seized by way of - that was seized and was on computer disk or hard drive, or that type of form, has been reproduced on hard copy and disclosed to the accused. Now, that runs counter with what he's claiming. It becomes an issue of fact. I'm prepared to produce evidence on that. He's alleging that some of it was withheld. The Crown's position is that none of it was withheld. That's one issue. The second issue is that he's requesting to have the information in the form it was seized as opposed to a hard copy of it. I'm not sure how far the disclosure requirements go, Your Honour. It's an interesting question. If Your Honour accepts, or if my friend concedes that full disclosure was given in hard copy, then there's no prejudice to the accused in not giving the information in soft copy, or in computer form. The police, quite frankly, have some concerns in giving the information in software version, giving disclosures to that medium, because it's part of a computer program that ran, according to the Crown's case, an illegal operation. So to give disclosure in soft copy, or in software, would also disclose the program and would also disclose what was seized as being a part of the illegal enterprise, and, for that reason, they do have some concerns. That is the Crown's position in that respect. MR. SAGLE: Your Honour, I understand Mr. Turmel requested the soft copy, the information, for several reasons. One is to be able to do the income tax work that's required at the end of the year for all his employees. And secondly, because if you have a soft disk with this information on it, you can look through it and evaluate it and take information out of it and examine it for preparation for trial much easier than - I mean, I think the stack is this high of hard copy papers, small print, difficult to use, while the Crown, of course, has the actual computer disks to use, and it's quite an advantage. But certainly the main reason he was requesting it - second reason, at least - is to be able to use it for legitimate purposes. The reasons for not producing it don't stand up. They're not reasonable and they're not - the Crown doesn't need to retain that. If they're trying to have the Defence at a disadvantage, that's certainly what they've achieved. MR. MARIN: The response to that, Your Honour, is that the income tax issue is not before this court. My friend has raised it. My information, from my officers, is that they've been in touch with the authorities and allowed them access to be able to gather all the information required to process whatever income tax requirements Mr. Turmel has to meet at this time of the year. So there's no prejudice in that sense. That's what I've been told. So it's not a matter for this court, but I simply wanted to put the Crown's position on the record because it's been raised. The second point raised, my friend says, was to allow easier preparation. I've voiced some concerns here that my friend does not share. Nonetheless, I don't think Your Honour has the power to compel the Crown to provide disclosure in a way which would allow the accused easier preparation. If that's the nature of the motion, it's not founded in law. That's like saying, well, the Crown has to put tabs on every binder that they submit to the Defence and they've got it printed on 14-pitch character letters, as opposed to 9-pitch, to make it easier to read. If that's the argument that's being put forward, my submission, The Stinchcombe, Rules of Disclosure, don't go that far. And if it was as simple as that, Your Honour, as putting a couple of tabs in a binder, that's fine, but I've voiced some concerns that the police have, from their perspective, having seized what is alleged to be part of an illegal business. THE COURT: Mr. Sagle, is the purpose for which the disks are required anything other than what you've indicated? MR. SAGLE: No, Your Honour. THE COURT: Are there any other preliminary matters that have to be dealt with at this time? MR. MARIN: There's a number that are contained in the motion record, Your Honour, that frankly, I believe, are resolvable between parties. I've already faxed a note to the accused's fax machine yesterday afternoon, indicating a number of concessions that preoccupied him. I believe that the others can be addressed by taking a short recess. A lot of them are things that we don't need to preoccupy the Court with, quite frankly. THE COURT: All right, what I propose to do, then, is to take a short recess of one half-hour, and no more, for the purpose of allowing the Crown to review with Mr. Turmel and his counsel the issues which have been discussed leading up to today; secondly, for the purpose of allowing the accused to prepare, as requested, on the two issues which were raised at the outset; thirdly, in relation to the matter of disclosure of the computer records, while I don't see any reason why the documentation in the form, as requested by Mr. Turmel, could not have been provided to him, I do not believe that the Court should visit a consequence on the prosecution for failure to provide the disclosure in a particular form if the issue relates only to the preparation of T-4 forms, which is certainly a legitimate purpose, but something outside of the scope of the jurisdiction and purpose of this proceeding, and for the purpose of simplicity of use. If there was some other legitimate reason, then there might be a consequence which the Court could consider. For example, if it were alleged that the disks were not consistent with the paper disclosure which has been provided, and that has not been suggested in any way by counsel. Therefore, we'll rise for one half-hour. R E C E S S (10:21 a.m.) U P O N R E S U M I N G: (10:50 a.m.) CLERK OF THE COURT: Court is now reconvened; please be seated. MR. TURMEL: Your Honour, he's just on his way down now. Your Honour, I would just like to add one point, if I may, on that previous argument about the withdrawal versus the dismissal. THE COURT: Yes, Mr. Turmel? MR. TURMEL: If you'll remember correctly, at the autre fois acquit, the Crown argued that such pre-pleas could not be made because the Crown had withdrawn the charge in 1989, and that was because they were allowed to withdraw it after they'd started the case. I do believe you arraigned me at the previous trial, and therefore I had been put in jeopardy, and my attorney has prepared a defence and hence I do not think that - I do believe that the Crown needs your permission to withdraw at this stage, now that I've been put in jeopardy, and I would hope that you would not allow them to do so and certainly give me some sort of a decision which would preclude another charge like this in the future. If they get to withdraw it now, they'll be able to do it to me again, and it'll be another six, seven times in court before we clear this mess up. So on that basis, I would hope that you do not let them withdraw, do not consent. Oh, and while Mr. Sagle isn't here, I do have one other thing: A notice of release - some recent case law says that if you're going to complain of charter rights, you have to do it before the trial, at the beginning, to give the judge fair notice that they're going to be brought up, so I have here a notice of the rights violations that I'm going to expect to raise if at some point these proceedings are ended in my favour. THE COURT: Okay. MR. TURMEL: Just to get it on the record that he'd been given notice. THE COURT: Mr. Turmel, are you going to argue the charter relief yourself, or are you going to have your counsel assist you in that? MR. TURMEL: Well, I would expect it won't be argued until after the trial, and if I lose I'll probably do it myself; if I win, I'll probably let him do it. So if I win, I would want everything to be done from this point on as officiously (sic) as possible. So it really does depend on what happens. I don't think they're going to be raised necessarily until the trial is over. I just want to make sure that if I am acquitted, the question of double jeopardy and these rights, whether they've been violated or not, does get addressed. But I am pretty reasonable that it will be depending on a decision whether or not I do it or Mr. Sagle does at this stage. MR. SAGLE: Excuse me, Your Honour. I'm sorry for being a few minutes late. I was in the library. THE COURT: Yes. MR. SAGLE: Your Honour, with respect to the matters we discussed earlier, first with respect to the matter of withdrawal, as I understand it, the Crown does have a right and a duty to withdraw inappropriate charges without leave of the Court up until the time a plea has been entered. The question here is whether, in your mind, a plea has been entered. THE COURT: A plea has been entered. MR. SAGLE: Yes, so it has been. That's already been discussed. After that time, I presume it was only with leave of the Court that they can do that. With respect to the matter of costs, costs can be awarded on behalf of the Defendant. The section of the Code is basically, "...where, in the opinion of the Court, the accused has been misled or prejudiced in his defence by a variation, error or omission in an indictment or a count therein..." One might argue that basically we have been misled, basically thinking there were three more counts in this, and preparing for them, to find really, as it should've been from the beginning, that now they were varying the indictment... THE COURT: The authority for that proposition? MR. SAGLE: This is Section 601(5) of the Criminal Code. I'm reading from Salhaney's Canadian Criminal Procedure. THE COURT: That section relates to adjournments. MR. SAGLE: It does say... THE COURT: The section indicates, "Where in the opinion of the Court the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or count therein, the Court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable." The costs are clearly related to the remedy of an adjournment. MR. SAGLE: I agree, Your Honour, and I don't think we need an adjournment in this case, so I accept what you say. THE COURT: All right, do you have any further argument on the issue of costs? MR. SAGLE: No, I don't, Your Honour. THE COURT: All right. In relation to the - are you aware of the charter relief that Mr. Turmel is advancing? Do you wish to... MR. SAGLE: I believe Mr.... THE COURT: ...assist Mr. Turmel in that regard? MR. SAGLE: I believe Mr. Turmel will be making those arguments, Your Honour. I have not read the - and I'm not prepared for it - but he has, and I understand he'll be doing that. THE COURT: All right. In relation to the Charter relief, the body of case law would seem to suggest that an application for relief under the Charter should be brought with notice. Mr. Turmel has provided notice, I take it, this morning, to the Crown of the relief being sought. As well, there should be an indication of the basis upon which the relief is being sought. The body of case law would suggest that the application be dealt with at the outset of trial, or, in some occasions, at the conclusion of the Crown's case. Before indicating that a Charter remedy will be considered, I would like to put the accused or his counsel to the proof of what relief is being sought. If you could indicate to me the basis upon which the Charter relief, which is set out in the notice, is being sought. MR. TURMEL: I guess it all stems from Section Seven, the double jeopardy... THE COURT: Yes? MR. TURMEL: ...and if it has been found that this charge was a case of double jeopardy, it will have been found that my right to peaceful assembly and association will have been violated, and of course my right to gain a livelihood will have been violated, and if the double jeopardy does stand and I had a right to play this game, I've suffered an unreasonable search and seizure. I was arbitrarily detained, I was not informed of the specific offence - it's still not in the indictment - and of course, I was not presumed innocent; I was presumed guilty. To not be tried again if finally acquitted: That definitely fits in with the double jeopardy. To not be subjected to cruel and unusual treatment: I think undergoing double jeopardy would be cruel and unusual treatment. And to be equal before and under the law: If I have the right to play this game - and it's been properly established - where other people do the same thing and are not equally punished or convicted or suffer this type of attack. On the basis mainly of double jeopardy, all these rights have been violated and I think the proper remedy would be, if at any point, in your mind, it dawns on the Court that, yes, this is an identical situation to 1989, there are no differences, and if you'll take note of the agreed upon statement of fact that will be presented, you'll notice it happens to be identical to the 1989 one. The Crown hasn't offered any new facts whatsoever. I've thrown in a couple of new ones. But from the Crown's perspective, the facts are absolutely identical. No change whatsoever. And I would therefor expect it to be an easy conclusion to be a double jeopardy and, on that basis, that my rights will have been violated, and I'd much prefer to be acquitted on the grounds of my right being violated when one considers the other recourse that we're going to be pursuing after this, if we have to. So on the basis of the double jeopardy, all the others stem, and hopefully that might be reason enough at some point to be the grounds for the dismissal of the charge. THE COURT: Mr. Marin? MR. MARIN: I have no response, Your Honour. THE COURT: All right, in relation to the matter of the Crown's intention to withdraw charges, Mr. Turmel was arraigned, a plea was taken primarily because of my understanding that that was a necessity in order for the previous arguments to be made, to be advanced. No evidence was heard. I'm satisfied that it is proper in these circumstances that the charges which the Crown is now indicating to the Court have no basis to proceed should be withdrawn, and therefore counts two, three and four against Mr. Turmel will be withdrawn. Mr. Turmel has expressed a concern essentially of wishing to establish a precedent. If it's of any comfort, if the matter were dismissed without any evidence having been heard, there still would not have been a precedent which would have been of use to you in the future. With respect to the application for Charter relief, there are two concerns: Firstly, the Court is not in a position in this forum to make rulings to prevent possible abuses of process or situations of autrefois or the other issues which were raised, I believe, in November in advance of the act complained of even occurring. In relation to the strict application of the Charter, it would not appear that the accused, to my view, has advanced a basis upon which the Charter application should be heard. It is not consistent with the body of case law for a party to have to deal with or face a Charter application without knowing specifically what argument and upon what basis that argument would be raised. Therefore, the application for relief sought under the Charter, in the absence of an indication for a basis for what evidence will be heard on behalf of the accused, in my view, must be dismissed. Any other preliminary matters? MR. MARIN: No, Your Honour, not until the accused has been arraigned. THE COURT: Mr. Turmel has been arraigned, I believe. CLERK OF THE COURT: Not by myself, Your Honour. THE COURT: My recollection was that Mr. Turmel was arraigned in..... CLERK OF THE COURT: November 15th? THE COURT: Yes. CLERK OF THE COURT: I have - enters a plea of autrefois.... THE COURT: All right, if we could re-arraign Mr. Turmel. CLERK OF THE COURT: Yes, Your Honour. 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, did unlawfully keep a gaming house, to wit, units 107, 102, 103, 104 and 105 at 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. MR. TURMEL: Pursuant to Section 606(1)(2), I stand mute. 606(1)(2). THE COURT: All right, then, I'll direct that the Clerk of the Court enter a plea of not guilty on behalf of Mr. Turmel, in accordance with the same section. CLERK OF THE COURT: Could you stand, please, Mr. Turmel? This is a straight indictable offence; I'll read the accused's election... MR. MARIN: There's no election; it's absolute jurisdiction of this court. CLERK OF THE COURT: Is it? MR. MARIN: Yes. CLERK OF THE COURT: Thank you very much. MR. MARIN: Your Honour, just before calling some evidence, I'd like to give some direction to the Court from the Crown's perspective. Firstly, this matter has gone through numerous pretrials of all forms and a number of issues were narrowed down both by the Crown and by the Defence and a number of admissions were made in the process. I have gathered three documents, some of which the Defence refutes; others are admissions made by the accused. I also have some comments as to what will be the remaining issues to be resolved by this court at the trial. The package that I have, Your Honour, the accused already has. It is made up, as I've indicated, of three documents. The first document, Your Honour, is entitled, "Undisputed Facts as Taken from Transcript Dated December 13th, 1993." There was a transcript of proceedings of a pretrial in which certain admissions were made. The second document, Your Honour, is "Undisputed Facts Between the Parties." These are facts that either Mr. Turmel has agreed to or wanted to be before the Court and the Crown has agreed to put before the Court. The third document is called "Appendix C." It's part of an information that was sworn to obtain a search warrant. So those three documents are before the Court. Now, from the outset, Your Honour, the charge is a charge of keeping a common gaming house, contrary to Section 201(1) of the Criminal Code. Keeping a common gaming house is at Section 201 of the Criminal Code. The definition of "common gaming house" is found under Section 197. So the first point that the Crown would have to prove in such a case was that Mr. Turmel was the keeper. That's the first point. The keeper of the premises, of the place. Now, that has been admitted as part of the transcript summary which I've put before the Court. THE COURT: I should ask at this point: Are the three documents that have been provided to me by the Crown admitted by the Defence as factual? MR. TURMEL: Well, Your Honour, there was a problem in the drafting, and to facilitate it, I did redraft another one which the Crown should have decided whether they agreed with. Now, they've indicated to me that the first 19 points, which are analogous to the statement of facts from 1989, have been accepted and I'd like to give you a copy, therefore, of the proposed agreed statement of facts which list the three points, numbers 20-22, which were divulged at pre-trial, so that if the Crown has no objection to those three points, then yes, everything has been agreed upon. The Crown did, in their undisputed facts, in transcript, admit point 20. The Crown did, in the pre-trial, admit point 21. And the evidence showed in the pre-trial that only poker and blackjack were played. So with those three extra admissions tacked onto the 1989 admissions, we have an agreed upon statement of facts and you don't need three documents. THE COURT: Which is 20-22? MR. TURMEL: 20-22 are the ones relevant to this case, all the way up to the 19 were analogous to 1989 with the dates, locations properly changed. THE COURT: All right, so that if 20-22 are admitted, then all of the other facts are admitted as well? MR. TURMEL: Agreed. THE COURT: Mr. Marin? MR. MARIN: The situation is, Your Honour, is that some of these facts in this agreed statement of facts produced by Mr. Turmel... THE COURT: Yes? MR. MARIN: ...have absolutely nothing to do with this case. So if he wants to put them forward, you know, if it's part of what he likes to put before the Court, I can't agree to something I find irrelevant. THE COURT: All right, then let's call the first witness. Either the agreed statement of facts are agreed or they're not. I'm obviously not in a position where I can force parties to agree on facts. I'll return these to the parties. MR. TURMEL: Now, wait a minute. Is the Crown really sure he wants to do this? They have 90 witnesses on the original... THE COURT: Well, we've had months and months for the parties to discuss and decide if there would be agreed statements. The matter was put over for that purpose. MR. TURMEL: Well, I know. THE COURT: If there's no agreed statement, then let's proceed with the first witness. MR. TURMEL: But if this two minutes saves us three weeks - the point is, the point he's bringing up is that I've asked that John Turmel has not been called upon to collect or remit GST. THE COURT: Yes? MR. TURMEL: And he admitted to Judge Lennox in the pre-trial that they have no evidence of that... THE COURT: Yes? MR. TURMEL: ...but they don't want to admit it is so. THE COURT: Mr. Turmel, I have no power, without having heard the evidence, to make any ruling on the facts. Either the parties agree on an agreed statement of facts or they do not. If there's not an agreement, I can't force people to agree. MR. TURMEL: Well... THE COURT: If there's no agreement at this point, we should start the trial. MR. TURMEL: But, I do admit the point he's talking about is point 21, about the GST... MR. MARIN: What about that point? Sorry? MR. TURMEL: Is that the point that you raised? You said there are some points that are a problem, you know? Which points? There aren't many. Why don't you tell us which problem there is? Perhaps it can be fixed so that we can have an agreement. THE COURT: Well, perhaps at some point during the day there'll be a break and you can discuss it, but I think enough time has been spent. We should start with the trial. MR. TURMEL: Okay. MR. MARIN: Could I just ask one question, Your Honour, of the accused... THE COURT: Yes. MR. MARIN: ...so I can get one point? These, what I have here, are things that were previously on the record, admitted by the Defence, right? So is the Defence wanting me to go a little further? That's one thing. Or is the Defence reneging on all the previous admissions on the record? That's what I'd like to know, because we've set two days aside to do a three-week trial, and two days on the basis of this. THE COURT: I appreciate that, but if the parties aren't in agreement... MR. MARIN: All right, I'm just seeking clarification from the accused here... THE COURT: Yes. MR. MARIN: ...to see whether he's reneging to these, because if he is, obviously it's not going to be a two-day trial. MR. TURMEL: Well, Your Honour, being a good bridge player, I've learned not to renege, and if the Crown wishes to renege on point 21, which they admitted in the pre-trial, why should I be more reasonable? Point 21: Judge Lennox explained to him that just because he has no evidence of no evidence doesn't mean he can't say there was no evidence. There was an absence of evidence of GST; it's all the admission I ever wanted. I don't understand what's objectionable in it. MR. MARIN: The Crown is not challenging Mr. Turmel's assertion about the GST. MR. TURMEL: So that's undisputed. We can sign the papers. THE COURT: The facts are agreed? MR. TURMEL: It's the only one, Your Honour. He doesn't dispute it, but he doesn't want to agree to it. THE COURT: Well, you both understand I have no power to force either of you to agree to anything. MR. TURMEL: Well, he can have a three-week trial with a bunch of witnesses he doesn't know how to handle or he can sign the paper and we go on with just the legal issues. THE COURT: I'm here for the trial of this matter. I'm prepared to proceed. If the parties are not prepared to proceed, I am. MR. MARIN: I'm prepared to proceed, Your Honour. THE COURT: All right, call the first witness. MR. MARIN: I would ask for an exclusion of witnesses, Your Honour. THE COURT: There'll be the usual order excluding all witnesses. Any witnesses in this matter will remain outside and will not discuss the case with any other witness. If both parties could ensure that their witnesses leave the court at this time. MR. TURMEL: Your Honour, in case I'm wrong, is it point 21 the Crown is bothered with that's preventing our agreed-upon statement here? We really aren't sure. THE COURT: Mr. Marin? MR. MARIN: No objection to point 21. MR. TURMEL: Well, which point do you have an objection to? MR. MARIN: These are pre-trial discussions... MR. TURMEL: I'm prepared to drop the points he thinks he'd like to prove. So which of the three last points doesn't he want me to... MR. MARIN: They've already been considered. The second document that's before the Court, called "Undisputed Facts Between the Parties." That's before the Court. What the accused is doing now has already been canvassed. This is what the Crown is prepared to agree upon. If he wants to - about point 21 - I have no issue... MR. TURMEL: Well then I'll agree to that last complete statement of facts, then. THE COURT: All right, then the three documents that were provided are agreed, plus the addition of 21, which I recall had to do with GST; is that correct? MR. TURMEL: Actually, 20 and 21 were both admissions by the Crown. MR. MARIN: Pardon me, I'm just..... On the basis of that, Your Honour, I was hoping to make a short opening statement to help both... THE COURT: All right, I'd like to clarify what 21 was. I don't have that document. MR. MARIN: I believe the accused is saying that he's not paying GST; the Crown is saying that we're not in a position to challenge that assertion. THE COURT: So that's not disputed. MR. MARIN: That's right. THE COURT: And that's the only other issue? Mr. Turmel? MR. TURMEL: Yes, as far as I know. I don't even know what... THE COURT: With that clarification, then, the three documents that I've been provided by the Crown are admitted? MR. TURMEL: Yes. I say it's unfortunate they couldn't have been drafted into an agreed-upon statement of facts. You have 60 pages of evidence now to take a look at. THE COURT: All right. MR. MARIN: All right, Your Honour, just in terms of a brief opening statement, the charge is Keeping a Common Gaming House, and part of the package that's before the Court, Your Honour, the accused admits being the keeper of the premises. He admits being in the business of gaming, the games being blackjack and poker. So what's left to prove is the place is a common gaming house. Now, that's defined at Section 197 of the Code. Okay, there are five disjunctive ways in which that can be established. The Crown's already indicated that it is proceeding on the first definition. That is, that a common gaming house means a place that is kept for gain to which persons resort for the purpose of playing games. That's 197(a), under Common Gaming House. So the 197(a) is the way the Crown is proceeding. Now, what is left from this, Your Honour, is, "...kept for gain to which persons resort for the purpose of playing games." So the Crown must prove that games were being played. The accused has admitted - "game" is defined as well in Section 197 - the accused has admitted that poker and blackjack are games within the meaning of the Criminal Code. That is, games of chance or mixed skill and chance. All right, so what's left, Your Honour, is for the Crown to prove that the place was kept for gain. So it's my submission to the Court that in view of the admissions that are before the Court, that is the element that remains for the Crown to prove. Now, it's again my submission that much of it - there will be legal argument as to what "kept for gain" means. I'm aware that the accused takes a different interpretation of those words. The Crown takes an opposite interpretation of those words, and it really will boil down to a legal determination by this court. The evidentiary basis the Crown intends to lead, to then argue that the accused actually has kept the place for gain, is an evidentiary basis to establish that the place was run like a business, that expenditures were made to ensure that it would flourish, and that in fact the place did flourish. The premises were leased exclusively by Mr. Turmel for the purpose of establishing a common gaming house. He spent money on promotion, food, drink, to attract a clientele. And that, by all accounts, he profited and benefited, gained substantially from his investment. So the Crown will be leading, for example, evidence of the leases, costs of some expenditures. The Crown intends to call a witness who's one of the operators of the Montreal Casino to indicate what the industry standard is when running a casino, what are the profit or the gains that are expected to be generated from the running of a casino, according to some common rules of play that were in force at Turmel's Casino. The operation - an 18-day period of operation of the casino was closely analyzed, and that data will be communicated to the Court, but it's the Crown's position that legally the definition of "kept for gain," the Crown does not have to prove the gain, but as long as the real object and purpose of keeping the place was to generate gain, that is sufficient, but that the Crown is in actual position to prove gain and will attempt to convince Your Honour that such gain did occur at the Turmel Casino. That is my submission, Your Honour. In view of the admissions and the discussions that have taken place between the Defence and the Crown intends to establish by calling witnesses. Now, there are a number of witnesses, Your Honour, that were police witnesses, who were involved in raiding the premises, involved in gathering evidence at all levels. Mr. Turmel has gotten full disclosure and there are no police witnesses apart from the two investigators that I may call at the end. I haven't made that determination either. Your Honour will not hear from those witnesses, as there's no issue with continuity of items, and so on. As well, the Crown will be relying on some bank accounts that were controlled by the accused and the money flow into and out of those bank accounts. The documents are here. My friend, as well, and the accused, have had disclosure of those documents and I don't believe that there's an issue that four out of those five bank accounts were in fact controlled by Mr. Turmel. There's one left that is part of the agreed statement of facts, the "tips" bank account - that is the employees' tips bank account at a certain bank - that was not controlled by Mr. Turmel, and we take no issue with that. There are some bank personnel on hand this morning. I believe Mr. Turmel does not require to hear from them either, as far as the tips account. It's seven out of eight accounts, rather. I said four out of five; it's seven out of eight. I apologize to the Court. There were five banks involved. So again, those witnesses are all on hand. Some of them have been admitted directly, some of them have been admitted inferentially, but I don't expect that what I've outlined so far as not being challenged by the Defence is being challenged by the Defence. For that reason, the accused having full disclosure of the documents, they'll simply be filed as required through various witnesses. MR. TURMEL: Your Honour, the point I wish to make about the witnesses is that there should be no challenges to the Crown's witnesses. All the facts admitted were the same. In 1989, 19 facts were admitted, but yesterday the Crown indicated to me that all 19 were admitted again. Nothing else was added to the agreed statement of facts, so that if you do take a look at the first undisputed facts between the parties at your disposal there, you'll notice that except for - I think it may go up to about 15 points - the Crown, in a letter to me yesterday, announced that they were accepting all of the points that had originally been made in the 1989 agreement of facts. So that you are now faced with an identical statement of agreed facts as you had in - as there was in 1989, and the Crown has restricted itself to Section A, and just for that reason I can make one point: That Section A does say that it is illegal - and I have a little chart here for my purposes - Section A does say that it is illegal to keep a place kept for gain for the purpose where people resort to the purpose of gambling. Now, what kind of a place is kept for gain where the people do not resort to gambling? And we see that there are all sorts of games, the sales, and it just so happens that, historically, we do have 18 cases which can show that in all cases of the use of Section A, it had to do with commercial transactions through the gamblers, so that Section A has been formally historically restricted to gains out of operation of the place, rather than gain out of operations of the game, because if Mr. Marin were correct, that gains out of operation of the game were also a contravention of the A Section, you wouldn't need the B sections. So I just want to point out that there were no commercial GST-able transactions alleged by the Crown, and even if there were any other kind of monies accrued to me from the operations of the game, unfortunately the Crown should have picked one of the B sections, either that I indirectly profited from the games, or I had an edge from the games, or I excluded people from the bank, or I charged a fee to get into the games. But at this stage of the game, I would hope that the Court would restrict the Crown to presenting evidence which deals with Section A, which - and I would point out Judge Fontana's decision on page four, which you may have in front of you, I believe, where he was very clear. He said, on page four, seven lines from the bottom, "The evidence from the principal witnesses was that refreshments were available but there was no charge." Two lines down, "There was no fee." Another line down, "There was no rake-off." Now, if we now turn to page, I believe, seven, we now see that Judge Fontana says, "'Common gaming house' is defined in five ways: One....." All right, then he says, "The operation...." And this is right in the middle, "...on the evidence alleged by the Crown, and accepting the testimony presented on behalf of the Crown...the operation...clearly does not fall into the first four categories; that is, a place kept for gain, or where a bank is kept by one or more, or where there's a rake-off, or where there's a fee." If we're going to catch him, it's on the fifth one. Now, I go back again to the examination of the evidence. Judge Fontana said, "There was no charge for the refreshments, no sales..." And he now concludes on page seven, "The place was not kept for gain." And I think that Judge Fontana's - now, the only reason we are here this morning, Your Honour, is you're aware that the Crown misread Judge Fontana's decision and were under the mistaken impression he had only dealt with Section B. And the transcript for our motion for autrefois acquit will show that you yourself pointed out to the Crown that Judge Fontana, right here on page seven, had dealt with Section A when he said the place was not kept for gain. My only point in this submission is that he came to that conclusion based solely on the fact there were no commercial transactions, as every other judge in Canadian history has treated Section A. And I'm prepared, with my 18 cases, to show that Section A has historically been from gains of the operation of the place and not out of the operation of the game, and that is how Judge Fontana treated it. And given you have the identical statement of facts, I would only hope that you come to the same conclusion that because there were no sales of any kind, the place was not kept for gain, and let us avoid the B Section arguments that have to do with gains of chips. So on that basis, that's pretty well all I'm going to have to add for quite a while. I'll let Mr. Sagle take over for the rest of the day, I would expect. THE COURT: Thank you. MR. SAGLE: Your Honour, I know it's awkward for both of us to be speaking, and I hope I don't cause any problems, but maybe if I could clarify what the defence is going to be in this? One is that I want to establish to this court that gambling is not illegal, gaming is not illegal, and running a business of gaming is not illegal. They're not criminal activities. And neither is winning money from any of those activities. Our position is that that's what we have here. We have gambling, we have gaming, we have the business of gaming, but we do not have - and we have winnings from that - but we do not have a common gaming house, and I believe I'll establish, through case law, that what I'm saying is accurate and that, in order to be convicted, we have to have a common gaming house which is defined in the act. But more than that, like all of these gambling sections that we're going to be dealing with here, they're interpreted by the courts since the first act of 1892, and that this section has always been interpreted in a restrictive way, as is natural when you're dealing with criminal legislation, of course. And what the Crown is asking the Court to do is to interpret in a wide, more of a common-place vernacular type of way, and I hope to show to the Court that that's not the way the courts have done it historically, that the cases will indicate, as Mr. Turmel has said, that the "kept for gains" section has been interpreted to refer to businesses which sold items to players which increased their separate business activity by reason of having people there. And I think the main thing to keep in mind from a Defence point of view is that what we are talking about here is winning money at playing games, which is legal. And I'll leave it at that. Thank you. THE COURT: Thank you. MR. MARIN: I'll try not to argue the law before Your Honour's heard the evidence, but I'll simply be content with saying that the Crown obviously disagrees with that interpretation, Your Honour, and that's the issue at this trial. As for prohibiting me from calling evidence to argue my legal interpretation, quite simply, if Your Honour hasn't heard the evidence, it's difficult to allow me to argue it later on, so that's why the Crown will calling evidence, so the Crown's prepared to call its first witness, Your Honour. THE COURT: Yes. MR. MARIN: I'd ask Your Honour, in exception to the exclusion of witnesses, to allow the investigators to attend. Constable Young and Sergeant Cleary, who, in any event, have met all these witnesses and know what they are going to say, and I believe the evidence I will call is not disputed, in any event. THE COURT: Any issue with respect to the investigators? MR. SAGLE: Nothing in particular. I'm not sure why they are required to be in the presence of - I think there was an indication that they don't know if he's going to be called later or not. That determination has not been made; am I correct on that? In a general way, however, the defence has no objection to all the witnesses being in. We don't have any particular dispute with anything any of them are going to say. We know what they're going to say. And so the answer's no, I have no objection. THE COURT: Exception, then, for the officers. MR. MARIN: Yes, thank you. MR. TURMEL: Your Honour, could the order excluding the other witnesses be varied in that they've all been looking forward to hearing their fate, and frankly, no one is going to contradict anyone else. I don't believe it's the kind of situation where there's going to be any contradiction of the facts. THE COURT: If both parties are content that the order be lifted as to witnesses, then I will do so. Mr. Marin? MR. SAGLE: There are no Defence witnesses here, Your Honour, if that helps. THE COURT: There are none? MR. SAGLE: At the present time, there are no Defence witnesses. MR. TURMEL: They're all Crown witnesses. THE COURT: They're your witnesses, Mr. Marin? MR. MARIN: Your Honour, I'm always in favour of the more prudent course, and if there are any arguments to be raised later as to what somebody said and the order they're called, I mean, I'd prefer to err on the side of caution, and there's no harm done by excluding them, and so I'd prefer to have them excluded. THE COURT: That's fine. MR. MARIN: Thank you. Sergeant Fotia. JOSEPH FOTIA: SWORN EXAMINATION IN-CHIEF BY MR. MARIN: Q. All right, Sergeant Fotia, I understand you're a sergeant for the OPP; is that correct? A. That's correct, sir; I've been in the OPP for approximately 25 years. Q. And I understand, sir, that you were involved in the investigation of Mr. Turmel's casino; is that correct? A. That's correct, yes. Q. And when were you first involved in the investigation? A. The first time I was involved in the investigation was in 1991, where I was asked by the Nepean Police to go to his residence at Baseline Road and see what was going on, so I went there in 1991 and... Q. Now, sorry to interrupt you, sir, but just to get where you're from - you're from the OPP - but what section are you from in the OPP? A. From 1988 to 1993, I was with the anti-gambling section of the Rackets Branch, Ontario Provincial Police, in Toronto Headquarters. And my duties were to investigate illegal gaming activities in the province and to assist other municipalities in relation to gaming investigations. Q. And in this particular case, originally you were assisting the Nepean Police Services; is that correct? A. That's correct, yes. Q. Now, did you ever attend a location on Baxter Road in the City of Ottawa? A. Yes, several times. Q. Okay, and can you tell us the first time you attended that location, sir? A. Yes, may I refresh my memory by using my notes, Your Honour? THE COURT: Are these notes made by yourself? THE WITNESS: Yes, sir. THE COURT: And when were they made? THE WITNESS: At the time. THE COURT: Any questions or submissions in respect to the use of the notes? MR. SAGLE: No, that's satisfactory. THE COURT: All right, you may refer to your notes. THE WITNESS: The first time I entered Baxter Road was Wednesday, June the 3rd, 1992, at approximately 2230 hours, which is 10:30 p.m. I did so by - it was 1141 Baxter Road at the corner of Iris - I located the premises and, outside of the premises, I had to ring a push-button ding-dong type of a bell. MR. MARIN: Q. Yes? A. And I was asked to identify myself, and, having identified myself as "Joe," someone came out and opened the door for me and let me in. Q. Now, I understand that to be the normal routing every time you attended at Baxter Road; is that correct? A. Yes, that was the normal routine. Q. How often did you attend Baxter Road? A. Oh, I would say approximately, one, two, three, four, five, six, seven, eight - nine times. Q. When you went to Baxter Road, can you tell us, sir, what you did for those nine times? A. I made observations. My first night there, I noticed that there was seven blackjack tables and one poker table inside the premises. Two blackjack games were in progress. I went to the cashier, which is located at the back, and I cashed in $200 in money and they gave me chips worth $200. The person behind the chip bank - they had a computer there of some sort - he was entering something; I don't know what he was entering. I took my chips and I began to play blackjack at one of the tables. Q. All right. A. I continued to play blackjack and make observations, and I noticed John Turmel was playing poker at the time. I kept playing blackjack for a while. Q. What can you tell us about the betting limit of that establishment? A. The betting was a minimum of $5 and a maximum of $200. Q. Was there any sign that you noticed within that establishment? A. There was a big sign behind me, "Turmel's Casino." Q. M'hm? A. And the dealers were all dressed in white, with a white shirt, very clean. Q. Yes? A. There was beverages on location there. No liquor, just pop and coffee and chocolate bars... Q. M'hm? A. ...and a fridge in the back. Everything was free. Q. All right. A. I began to play this game of blackjack and I was asked by one of the dealers that I had to be the bank. I said, "Why?" He says, "Because that's the rule; you have to bank once." And I said, "Well, okay, if that's the rule." So they turned the cards over to me and I was the bank, and I played with the dealer, only the dealer, one time, at that particular time, and after I played him once, then it went on to the second player. If he was not the bank that day, he was told that he had to be the bank. Q. How many players are there for each table? How many players are there? A. Some tables are six, some seven, depending on the tables he had. Some tables were seven spots, some were six. Q. Okay, six and seven spots and one bank. A. One dealer, yes. Q. One dealer. All right. Now, when you wanted to be the dealer of the bank... A. M'hm. Q. ...was there anything different? A. Well, you can only bank against - he would tell you you had to bank against the house once... Q. Yes? A. ...to circumvent the rules, the law. Q. And where would you go to do that banking? A. Just right there, my position. He just turned the shoe the other way... Q. Okay. A. ...and I would be the bank and he would bet up to whatever I wanted against him. Q. All right. Now, was this on your first visit, or was this on all visits to that location? A. This is on most visits. My last three visits at the last location, I was never asked to be the bank. They just had a little sign that indicated that you must be the bank, but there was no one there to tell me that you - that you were instructed you had to right away. They just have a little sign that you've got to be the bank at least once a night. Q. Now, you're a sergeant with the OPP. When you went there, did you identify yourself as a sergeant with the OPP? A. No. I did not. Q. Was there any outside indication that you were with the OPP? Were you wearing uniform or anything? A. No. Q. Did you identify yourself in any way? A. No. Q. Okay, on subsequent visits, sir, did anyone at that location treat you as though they recognized you from a prior encounter? A. I think, during the end of my visits, there could've been a customer or two that may have noticed me, since I'm from Ottawa, and I believe that the last few times there could have been some customers that noticed my face and perhaps told Mr. Turmel, but for the first few months, I don't believe anybody knew me. Q. Did you notice if food or drink were being served at that location? A. Yes, as a matter of fact, food was served; I ordered some. I was hungry. Q. Was there any cost? A. Well, there was hot dogs and there was sandwiches, chips. No cost, no. You normally gave a tip to the person who gave you the food and drink, but there was no cost. Q. How about to the dealer? Was there any tipping of the dealer? A. Well, if you wanted to tip, you could tip. For example, in playing "Texas hold' em," I made a point not to tip one time; I wanted to see if I was forced to tip. And I was not forced to tip. So it was voluntary. Q. Okay. A. In blackjack, normally, if you won, you would tip, because same as you go into a restaurant, if you had good service, you tip; if you get lucky, you tip. That's just a normal routine. A living, I guess. Q. Was there anything in the establishment to remind you of that? A. Well, the establishment reminded me of places I visited in - you're talking about what the establishment reminded me of? The place? Q. Yes. I mean, was there anything in it to remind you about the tipping? A. Oh, no. No. Q. Okay, so did you play blackjack when you were there? A. Yes. Q. All right, and can you tell us if you won any money? A. Well, some nights I did, but in the overall scheme of things, I did not win money; I lost money. Q. Do you have any indication of how much you may have lost at Baxter? A. At Baxter? I lost over $1,500 over a period of eight or nine times. My net losses, that is. Q. Pardon me? A. Net losses. Like, in other words, one night I won $500, the next night I lost $300, but the total of all my visits, I was down about $1,500. Q. How much money had you started with? A. Well, the first night I started with $200. Q. Yes? A. Lost it. Then you couldn't stay there any not play - it didn't look right - so I cashed in some more money, because I wanted to stay for the duration the first night, to see what time it closed, what type of clientele it had, how many people were there at four o'clock in the morning, and so usually the place closed at six in the morning, a.m., in Baxter. So I usually stayed till it closed a few times, just to see what the action was at that time. Q. Now, did you keep records of the number of people there, the action, the money that was changing hands? A. Well, I kept as many records as I could remember each time I went in. I've got notes that affect - for example, the first time I went in the Baxter place, 1141 Baxter, there was two blackjacks in progress, so that would be about ten people playing. There was a full table of poker, but that was maybe 20 feet away from me, from the other game I was playing. Q. Yes? A. One thing I found interesting at the games of blackjack, which I didn't find in my visits to Las Vegas and other casinos, was that they would have side betting. Side betting, meaning that the player, besides betting the initial bet, can bet on a subsequent card coming to the player. For example, if you wanted to bet that the next card you received would be a face, you would indicate that by putting a bet which would have to be half of your normal bet. You couldn't bet more than half of your normal bet. And it would pay two-to-one. The odds on the face coming up that one time would be two-to-one. And then you could bet on other cards that paid different odds for the one-time deal. And it reminded me of a small casino in Nevada, to be honest with you. I've visited Nevada about 50 times during my lifetime and it reminded me of a little casino in Nevada, with refreshments, with the games that were there. The games were, in my opinion, very honest. There was nothing bad about them. Everybody seemed to be happy there. Q. All right. Now, the data that you were gathering about the money flow and who was present, and so on: That data: Did you give it to the Ottawa Police later on? A. Yes. Q. For further analysis? A. Yes. Q. Okay. A. Each time I come out of there, I'd make photocopies of my notes and give them to Sergeant Cleary, who was in charge of the investigation at the time. Q. All right. Now, subsequent to this, I understand you also visited another location, St. Laurent Boulevard in the City of Ottawa. A. Yes, I was there three times... Q. Okay. A. ...in the last place. Q. In terms of dates, if you can just tell us the first time you went to Baxter and the last time you went to Baxter. A. Okay, the first time I went to Baxter was the 3rd of June, 1992, and the last time I went to Baxter was July the 13th, 1992. The first time I went to St. Laurent Boulevard, 2335 St. Laurent, was 28th of January, 1993, and I was only there three times. The last time was January the 30th, 1993. Q. I missed that last date. A. January the 30th, 1993. Q. Okay. That location, in contrast to the first one, first of all in terms of size: Can you give us any indication... A. The last location was much bigger, much bigger, and... Q. You mean St. Laurent or Baxter, when you say "last"? A. St. Laurent was much bigger. I would say it was a full- fledged casino, if I can use that term. It was - there were a lot more employees. Many employees. I counted about 18 or 20. I saw Mr. Turmel's brother there several times. And dealers that were there at the Baxter Road location. But there were many more employees there than there were at Baxter. They had runners at the last location. "Runners" meaning people with chips on their person so that you wouldn't have to go to the bank. There's special locations you can cash in, give them cash, and they'll give you chips. But it was a much larger place. Q. Okay. Now, I presume that poker and blackjack were being played there as well, right? A. There was two games played at each location that I attended: Blackjack... Q. Yes? A. ...and "Hold 'em." They called it "Texas hold 'em," but the actual game is "hold 'em." The game of "Hold 'em," poker game, you can have maybe 11 or 12 players at one sitting. Q. Now, in terms of the blackjack, I believe the term that's used is "Turmel-style blackjack." Is that right? A. Yes. Q. Now, can you tell us generally how that game is played? A. Sure, the game is played basically like any other casino. You have a shoe, you have a dealer, you have, in most cases, six decks of cards. The bets are placed prior to receiving cards. The deal goes clockwise. And again, at the last location, my last three visits at that location, I was not asked by one of the dealers or anyone in authority to be the dealer. All they had was a little piece of - a notice on each table which indicated that you must be the dealer once a day, or something to that effect. But no one came up to me and said, "You have to be the dealer." They just had a little card on the table indicating that "You must be the dealer," but no one was enforcing that at that location. Q. Okay, and the betting limit was a minimum of $5 and a maximum of $200; is that right? A. Yes, the tables where I was playing, yes. Q. Now, again at that location, was there food and drink dispensed? A. Yes, there was, in that location. At the time I was smoking, so I wanted to get some cigarettes, so I gave some money to one of the persons working there, and they went to a machine and it cost me $6.50 for a small package. Food was free. They made sandwiches and brought them down to you. They made it comfortable for you to stay there. Q. Okay. A. My primary function, when I went into these places, was to make sure that there was games and that it was common and that the people were betting. That was my... Q. By "betting," how do you employ that word? A. Making a bet, by betting between people. And in each case, there was bets between the blackjack players and the house dealer. There were bets in the games of poker between individuals. Or Mr. Turmel's employee. Or Mr. Turmel sometimes would actually deal the game. There were bets made between people. Q. What about the tipping at the St. Laurent location? A. Again, I noticed that each time a person would win a hand, if it's a sizeable hand, you would tip the dealer. On a small pot, you don't have to - well, you don't have to tip the dealer at any time, what I saw, but most people did. I would say 99 percent of the people, when they won a pot, they would tip the dealer because he was working, I suppose, and you like to tip the worker. Q. M'hm? On the last visit that you made on January 30th, 1993, how many people were on the premises when you were there? A. I was there in the afternoon around two o'clock. There was quite - if I had to guesstimate, I would say anywhere between 75 and 100 people. Q. And did you win or lose any money while you were there? A. I didn't play the last time. I just... Q. Pardon me? A. Last time I was there, I just made some observations and I had a coffee and I didn't play the last time I was there. I just made observations on how many people were there. The other times I played, I lost a few dollars there, yes. Q. You lost a few dollars? A. Yes. It's very hard to win. It's very hard to beat the house in any game. This is why Las Vegas is building shrines. Not from winners; they build it from losers. It's very difficult to win at a game of blackjack against the house. The percentage is always with the house. You may have one lucky day, but overall, if you go there many times, most times you will lose. Q. Now, I'm showing a binder, and this was seized from the shift supervisor's desk at the St. Laurent location. There's a yellow page that says, "Casino Turmel at the Topaz Entertainment Palace." It has "Blackjack rules" in the box right underneath. A. Yes. Q. I'd just like you to take a moment to look at those rules. A. It's mostly like Vegas rules with a few variations. Like a double stand, they don't have in Las Vegas. A double stand means when you have a terrible hand, like 16 or less, you can double your bet against the house. Q. All right. Now, I'll just finish on that. Are those the rules as you remember them being played when you went... A. Yes. Q. Okay. A. Yes. Q. I'd like to just file this as Exhibit One, Your Honour. THE COURT: The binder or the rules? MR. MARIN: Perhaps the binder, easier for reference. MR. SAGLE: The rules? Sorry? MR. MARIN: Yes, I'll leave it within the binder and I'll just file the binder. MR. SAGLE: I don't know what else is in that binder, of course. It's the rules that are going to be the exhibit, but they're going to stay in the binder; is that correct? MR. MARIN: Yes, that's right. THE COURT: Will the rest of the binder be identified at some point? MR. MARIN: No, Your Honour. I have no problems taking it out; it's just that it was taken as it is now, but I can just file the paper. THE COURT: Perhaps that would be more appropriate then. The rules will be Exhibit One. EXHIBIT NUMBER ONE: Blackjack rules. - Produced and marked. MR. MARIN: Q. Now, Sergeant Fotia, what is a "hand" at blackjack? A. What is a good hand? Q. Yes, what's a "hand"? Never mind a "good one," but what does the word mean? A. A "hand" means that you're given a minimum of two cards. That constitutes a hand. Q. Supposing, just to - I don't want to get into the complexities of the game - but just to perhaps get some of the elementary workings of the game, suppose there's a table there and there's a dealer. You've indicated there's a shoe. What's a "shoe"? A. A shoe is usually an item made out of plastic where you can put in up to 10 or 11 decks inside, so when the dealer deals, he can take one card out at a time and it cannot be seen by anybody - say if the cards were marked -you can't see them. Only one card comes out at a time, and you deal them one at a time from the shoe, clockwise, until you make a hand. Q. Okay. So you have how many people sitting at a table? A. Well, you can have up to seven spots. Seven plus the dealer. Eight. Q. Okay, and where are all these people seated? A. On the stool, the chair, at their own position. Each player is sitting in front of a little emblem, a little circle or square to identify his or her position. Q. Okay, the dealer's on one side and... A. The dealer is behind the chip bank. He has the most space... Q. All right. A. ...because he's dealing clockwise to everyone, to the seven people. So he has to have a look at all of these people. It's like I'm sitting in the box right here, similar to this, actually. Here's the money, the chips, and the players are sitting around here. Q. All right. A. All right, he makes change, he deals, he controls the game. Q. So the game is starting, players are sitting down, the table's there, the dealer's there. A. Right. Q. Okay. A. The first thing that happens, everybody must make a bet before receiving cards. Q. Okay. So between $5 and... A. And $200. Q. ...and $200. So they make a bet with whom? A. They make the bet against the house, this person here who has all the chips. Q. So everyone gets to make a bet, one after the other? A. Yes. Well, you don't have to bet every time; you can just pass a bet if you want. Q. Okay. A. You don't have to bet each time. Q. So that's the first thing that happens. A. Right. Q. What's the second thing that happens? A. The second thing that happens is the dealer will deal one card each to everyone, including himself, and another card each to everyone and not to himself. The last card, he doesn't deal to himself. Q. Okay, now, the cards are facing up, or are they facing down? A. They're facing up. Q. Facing up? A. Yes. Q. Okay, those cards to the players are facing up? A. That's correct. Q. How about the dealer's cards? A. One's facing up, yes. He only has one card. Q. Okay. A. He's playing the English rules. There's different ways of playing blackjack. At Turmel's, they have two cards each and one card to the house person. Q. Yes? A. And then, after he plays everyone, he plays himself. He gives himself the second card. In a lot of other places, everybody takes two cards initially. Q. Okay. A. His is up. One's up, one's down of the dealer's, normally, and the players' are both up. Q. Okay now, what happens next? A. The dealer goes to the first position and asks the person if he'd like another card, and the player indicates if he wishes another card by a hand signal. Q. Now, what is the purpose of the game? What is each player ultimately trying to do? A. The purpose of the game is for each individual to make more points than the house without busting. If the person busts, then the house takes its money. Doesn't have to play himself. Q. Okay, how does a person bust? A. By getting over 21. Q. Okay. A. Anything over 21 is a bust; the money goes to the house. Q. So a player who's got a card and is asked if he wants another card, okay, what has to go through his mind? What's the consideration? A. The consideration is, well, the house must stay at 17 and must hit at 16. Q. Okay, what does that mean? A. Well, that means if the player sees that the house has a six, the player will always assume there's a face, because there's more faces than anything else in the deck, and will assume there's a 16. So at that point, the player makes a decision whether to take another card and risk busting or stay at a low, or whatever point he has, and hope that the dealer busts, if he has a bad hand, or that the dealer has to stay at 17 and the player will have 18 or more. Q. Okay. A. A "push," nobody wins. In other words, if it's 17-17, nobody wins. Q. Now, if there's a bust, what happens to the wager? A. The money goes to the house. The money's picked up right away and put - the chips are picked up and put into the slots. End of the game. Q. Okay, now... A. For that person. Q. Okay, now, each part - every parcel of the game is called a "hand," right? You'd call that a hand? A. Well, every time you get two cards, it's a hand, yes. Q. Okay, were you able to make observations as to how many hands were dealt per time - well, how fast did these happen, these hands? A. Well, pretty fast. It would take maybe a minute and a half to two minutes for each hand. Q. Okay. A. Approximately. Depends on the dealers. Some dealers are faster than others. Some dealers are slower. Now, I have here a type of a spread sheet I understand was gathered from your observations, the time of day you went to St. Laurent establishment, the date, the hours that you observed, the game you observed, the number of players, the positions, and so on. Would you look your notes and confirm whether these in fact are your observations? A. I'd have to look at each page, but I think they look like the ones, because I gave all my notes to the sergeant from the Ottawa Police Department. I think he made a chart of all this. So I think that's correct. It looks to be correct. I hadn't seen this before, so..... MR. MARIN: All right, if that could be made Exhibit Two, please. THE COURT: What would be the purpose of filing this as an exhibit? MR. MARIN: It's because, Your Honour, there's an expert witness later on that will have some interpretation to make from the observations of this officer, to build upon it. That's the purpose of getting it as an exhibit; it's subject to further testimony which will shed light on the exhibit. THE COURT: All right, then. The document will be Exhibit Two. EXHIBIT NUMBER TWO: Summary of observations made by Sergeant Fotia. - Produced and marked. MR. MARIN: Those are my questions, Your Honour. ********** THE COURT: Cross-examination? MR. SAGLE: Yes, Your Honour, I just have a few questions. CROSS-EXAMINATION BY MR. SAGLE: Q. Sergeant, you indicated that when you were at the Baxter premises you were - it was indicated to you that you should deal at one time; is that correct? A. M'hm. Q. And you did deal? A. M'hm. Q. And did you deal at any other time? A. At the Baxter location? Q. Either location. A. The Baxter location, yes. Q. Yes, you did? Is it your understanding that you are able to deal at any time you chose? A. I thought - when I made observations at the Baxter place, I never observed anybody being the bank, other than the Turmel employees, against more than one person. Q. Mo, I understand. Against one person, but you understood you could deal against one person whenever you chose? A. That's correct. Q. And you never saw anybody refused the opportunity to become the bank, become the dealer, whenever they chose; is that correct? A. There wasn't too much of that, but I didn't see it. Q. You also indicated that you've been to Nevada some 50 times and you've played in numerous casinos. Have you ever seen a casino in which the player can actually become the banker? A. Yeah, in .... they can become banker. Q. No, I mean in blackjack or poker. A. In blackjack, no. Q. You also indicated that you felt it was difficult to win this game because the house - I gather you mean the banker... A. The bank. Q. ...has an edge. A. I believe so. Q. And of course, when the bank changes, that edge goes with it. It's inherent in the bank; is that correct? A. A long term bank. Q. Pardon me? A. A long term bank. Q. You also indicated you bought cigarettes. A. Yes. Q. Where did you buy those? A. I gave the money to one of the runners at the last location, the location being in the... Q. Bought from a machine, you said? A. Yes. Q. In your investigation, did you find out who ran that machine, who owned the machine? A. I didn't do it. Someone else did that investigation. Q. Do you know who the owner was? A. I don't personally, no. Q. You indicated you played blackjack and poker? A. Yes. Q. And at Baxter you lost $1,500, you thought? A. M'hm. Q. Do you know how much you lost at blackjack and how much at poker? Did you distinguish? A. I didn't play too much poker. The reason why I wanted to play poker was to see if there was a rake. Q. Was there? A. No. Q. Thank you. THE COURT: To see if there was a what? THE WITNESS: A rake. A percentage going to the house. THE COURT: Yes. THE WITNESS: And there was not a rake. The only observation I made at the poker table is that everyone gave a tip to the dealer after the end of each hand. MR. SAGLE: Thank you. I have no other questions. ********** THE COURT: Re-examination? MR. MARIN: Yes. RE-EXAMINATION BY MR. MARIN: Q. Just to clarify for the record, a rake, you said, is a percentage of the bet. Is that what you mean by... A. Percentage of the bet. That's correct. Q. Now, just to follow up on the issue of the bank, if someone wanted to be the bank, wanted to persist being the bank, what would be required of that person? A. Well, he would have to put up the money to cover all the bets. Q. Okay, and... A. The person. But I believe, in my opinion, that if I'd persisted that I wanted to be the bank, they would know I was a police officer at that point. That's why I didn't persist. Q. Okay. From your observation, do you know if you wanted to keep being the dealer of the bank - was that being done elsewhere within the... MR. SAGLE: Leading question. I... MR. MARIN: Q. ...or was that done at the table... MR. SAGLE: Objection, Your Honour. He's leading the witness into a whole realm the witness hasn't brought up or discussed before. THE COURT: All right, could you repeat the question? MR. MARIN: Q. The location where the gambling was taking place... A. On Baxter, yes? Q. No, on St. Laurent. A. Yes? Q. That's the one I'm interested in. How many tables were there? THE COURT: Well... MR. SAGLE: We haven't done this. MR. MARIN: Well, I'm just laying the groundwork for the question, Your Honour. I mean, if he's suggesting that I'm leading, I'm going to lay the groundwork... THE COURT: Well, is that a question that arises from cross- examination? MR. MARIN: Yes, it is. It arises from cross-examination, Your Honour. THE COURT: How? MR. MARIN: Well, he questioned specifically on the role of the bank, if they wanted to be the bank, or what would be the procedure, and he followed up questions on that. And so he asked whether... THE COURT: What will your next question be? MR. MARIN: What my next question will be? Supposing he gives a number of tables, to ask where the normal game was happening, and if there was any other area within that location where there was a different game being played as opposed to the mainstream game. THE COURT: Mr. Sagle? MR. SAGLE: Your Honour, it sounds like this should all have been brought up before. That didn't come from what I asked, the question about the edge going with the bank. The process and where you go and how you play the game. It didn't seem to be important during his examination. I think he's going well beyond... THE COURT: Well, if the purpose is to address simply the issue of who was being the bank at different points, I'm going to allow the question, but only for that purpose. MR. MARIN: Yes, for that purpose... THE COURT: Yes. MR. MARIN: ...and the one my friend just indicated, that he's looking at who had the edge. It was part of his cross- examination. I mean, it goes hand-in-hand with that question. THE COURT: Yes. MR. MARIN: Q. All right, so Sergeant Fotia, within the location of the St. Laurent Avenue area where it was being played, can you tell us - there's a location where you'd have to be if you wanted to play the bank. That's the question. A. At the table, there's - for example, at the St. Laurent location, there was quite a few tables, but in that context, you have to be the bank at that table. In other words, if I was a player, I would turn to the bank and say, "I want to be bank," and at that point, okay, I could only be bank against that person. I did not see, in my observation, a person who was bank, because you knew the person who was bank, because he had the shoe. Q. Yes. A. I'd never seen a bank person to play with more than one player. Q. Who was that player? A. Well, that player was the bank. When the customer was the bank, the bank became player. Q. Okay. A. So, in other words... Q. Yes, sir. A. ...in my observations - first of all, my observations on Baxter Road, there was several people being bank one-on-one with the house. Q. M'hm. A. Okay. At the St. Laurent location, I did not observe any people during my visits there that were bank, because it was very obvious to me who was bank. Because the shoe would be on his side and he would be dealing to that other person. And usually, when the player became bank, he only dealt to one player; he didn't deal against six or seven other players during my observations. And at Baxter Road, there was people who were bank. At the location at St. Laurent, I did not observe anyone being bank. The bank was always a person in the white shirt who was an employee of Mr. Turmel. Q. Okay now, when this happened, what happened to the rest of the game? You're at a table... A. It would go on normally. The rest of the games would go on normally. Q. Right. MR. MARIN: Thank you. ********** THE COURT: Mr. Sagle, do you have anything as a result? MR. SAGLE: Just one question, Your Honour. MR. TURMEL: Just one. MR. TURMEL: Q. So in a sense, you are stating that at any time a player could decide to become the dealer-banker if he so chose, and the player would leave the table, go to another table where he would take on only Mr. Turmel or one of his agents? A. That's correct. Q. And that if the other players were present at the time, the main table would continue playing with Turmel or they'd go to another table? A. That's correct. Q. And that the player could not be the banker-dealer against any other player? A. Come again? Q. You couldn't be a banker-dealer against another player; just me. A. That's correct. Q. And that if a player chose to be the banker, the house rules were such that you were entitled to be the bank and deal a shoe of cards against John Turmel or one of my agents only, and play a one-on-one game in which no other players were allowed to play? A. For one hand. But at the last location, where I went three times, no one from your staff, or yourself, came to me and said, "You must be the bank." There was a little article, sign, on the table saying that you must do this, but no one came to make sure that I did do that. Q. All right. That's right. And you did see the big sign on the walls that said the same thing? A. That's correct. Q. And you did see the special blackjack table called the "U- Bank" table? A. Yes. Q. Okay, so that means all these facts admitted in 1989 basically are the same thing today, correct? A. I didn't read that. MR. MARIN: He wasn't there in '89, Your Honour. MR. TURMEL: Q. Still, the point is, everything I've just stated to you is true, correct? A. Everything you said to me - I don't know about 1989. I wasn't there. Q. Everything I've just said to you, you agree with, is exactly how it was played today. A. That's correct. MR. TURMEL: Thank you. ********** THE COURT: Thank you. Perhaps this would be a good opportunity to take the lunch recess till two o'clock. R E C E S S (12:20 p.m.) U P O N R E S U M I N G: (2:04 p.m.) CLERK OF THE COURT: Court is reconvened; please be seated. MR. MARIN: Your Honour, right after we recessed for the lunch period, I had some discussions with Mr. Sagle and Mr. Turmel and I went through with them the witnesses I intended to recall, and I believe, Your Honour, that we were able to narrow it down to one, two, three, four witnesses, and perhaps we'll be able to close the Crown's case today or tomorrow morning. The other witness' testimony are, in substance, not be challenged by the Defence. So what I propose to do is - we have some documents that I was going to tender through those witnesses, or statements, and what I'd like to do is file them as exhibits and, subject to that, then call the remaining witnesses. The Defence has full disclosure of all the documents that we have. THE COURT: That's fine. MR. MARIN: Now... THE COURT: And that's with the agreement of the Defence? MR. SAGLE: That's correct, Your Honour. MR. MARIN: I wasn't sure, Your Honour, if the three documents I submitted earlier on this morning were officially made an exhibit to the case, were they? THE COURT: Two? CLERK OF THE COURT: No, they were not. MR. MARIN: Okay, they should be. THE COURT: We have the rules as Exhibit One, and the summary from Sergeant Fotia is Exhibit Two. MR. MARIN: But Your Honour, the package, the undisputed facts... THE COURT: The agreed statement? MR. MARIN: Yes. THE COURT: No. MR. MARIN: The three documents. Perhaps they should be entered now before - they should be Exhibit Three, I suppose. THE COURT: All right, if these are agreed, then the undisputed statement - the undisputed facts as taken from the transcript dated December 13th, 1993, the undisputed facts between the parties, and appendix C, will collectively then be Exhibit Three. CLERK OF THE COURT: Exhibit Number Three. EXHIBIT NUMBER THREE: Undisputed facts from transcript of December 13, 1993; undisputed facts between parties; Appendix C. - Produced and marked. MR. MARIN: Yes, there's one correction, Your Honour. The first document, undisputed facts as taken from the transcript... THE COURT: Yes? MR. MARIN: The third line reads, "Mr. Turmel admits he had control of all the bank accounts." The word "all" is to be deleted. And of course I made the comment this morning that there was a bank account dealing with employee tips. THE COURT: And that account would be excluded, then, from the bank accounts... MR. MARIN: That's correct, Your Honour. THE COURT: All right. MR. MARIN: It's referred to in another document, but here the nuance is not made, so... THE COURT: All right, I've noted, then, that the word "all" is deleted. MR. MARIN: Thank you, Your Honour. CLERK OF THE COURT: Thank you. MR. MARIN: Okay, so Charles Lefebvre. Do you have a statement for that? Or a lease. This will be Exhibit Four, I believe. This, Your Honour, is a copy of the lease between Mr. Turmel and Charles Lefebvre. This is a copy of the lease. It's the Baxter Road lease; Your Honour's heard there was a casino operating there. THE COURT: All right, then, the lease in respect of Baxter Road will be Exhibit Four. EXHIBIT NUMBER FOUR: Lease for Baxter Road location. - Produced and marked. MR. MARIN: All right, the next document: Howard Appotive. There's a lease - statement - also a lease..... Your Honour, this pertains to the St. Laurent location. THE COURT: All right, the lease with Appotive, for St. Laurent, will be Exhibit Five. MR. MARIN: There's a statement as well from Appotive that's been disclosed as well as part of the lease. THE COURT: Is the statement to be entered into evidence as well, then, together with the lease? MR. MARIN: Okay, so that would be Exhibit Five. THE COURT: And the statement is to be entered with the lease? MR. MARIN: Yes, please. EXHIBIT NUMBER FIVE: Lease for St. Laurent location, and statement. - Produced and marked. MR. MARIN: All right, the next Exhibit, I believe, is Exhibit Six? Are we at six? CLERK OF THE COURT: Yes. MR. MARIN: Exhibit Six will be the articles of incorporation of Appotive Developments. THE COURT: Of quota...? MR. MARIN: Just have a moment..... MR. MARIN: The Appotive Developments articles of incorporation, Your Honour, a certified copy. THE COURT: All right, the articles of incorporation of Appotive Developments, Exhibit Six. EXHIBIT NUMBER SIX: Articles of incorporation of Appotive Developments. - produced and marked. MR. MARIN: Donald Cribbie. So this would be the Exhibit Number Seven. Statement. Okay, so there are two statements, Your Honour: The witness statement by Don Cribbie, and one given as he's found at the location at the establishment. THE COURT: And there are two statements for Mr. Cribbie? MR. MARIN: Yes, Your Honour. THE COURT: All right, those two statements, then, will be Exhibit Seven. MR. MARIN: Thank you. EXHIBIT NUMBER SEVEN: Two statements of Donald Cribbie. - Produced and marked. MR. MARIN: And Kanaan. It's one witness statement. THE COURT: That'll be Exhibit Number Eight. EXHIBIT NUMBER EIGHT: Witness statement of Kanaan. - produced and marked. MR. MARIN: The next witness statement, Scott A. Jordan. THE COURT: Exhibit Nine. EXHIBIT NUMBER NINE: Witness statement of Scott Jordan. - Produced and marked. MR. MARIN: Exhibit Ten is a spread sheet prepared by Howard Greenberg, Your Honour. It will be subject to further evidence, Your Honour. THE COURT: Exhibit Ten. EXHIBIT NUMBER TEN: Spread sheet prepared by Howard Greenberg. - Produced and marked. MR. MARIN: I believe, Your Honour, as well, if I may just read this for the record, that I believe that if this witness were called, he would also indicate that there were up to 100 employees, or so, hired at the St. Laurent establishment. That's for the witness, Greenberg, Your Honour. There are a number of bank documents that I believe could be entered all as one exhibit. Okay, the next piece of evidence, Your Honour, deals with the bank accounts. The next exhibit is a statement by Garnet Barber, manager of the Bank of Nova Scotia. THE COURT: That'll be Exhibit 11. EXHIBIT NUMBER 11: Statement by Garnet Barber, BNS manager. - Produced and marked. MR. MARIN: The next exhibit, Your Honour, is a binder, and what's in this binder - perhaps it could be called "bank documents, Casino Turmel." It's bank documents from five banks. The Capital Community Credit Union Limited, the Bank of Montreal, Bank of Nova Scotia, Royal Bank Somerset Street, Royal Bank Centerpoint Drive. MR. TURMEL: Excuse me, Your Honour. Could I object? Short objection at this point. There has been an admission that I've controlled bank accounts. There has been an admission that there was gambling. There has been an admission that the bank accounts were controlling monies from the gambling. And frankly, with none of this denied, the Court does not need to know how much money or where it was stored in order to get a prima facie case of gaming house. You just need to know that there was money gambled for, which I've admitted. So we've spent the last ten minutes talking about documents which, once I admit I've gambled and I'm a winner, these become irrelevant considerations, where the money was stored and how much, and considering the admissions are in there already, I think the Crown should be alerted that this is unnecessary evidence in light of that admission. You know, why prove where it was kept and how much, when all you need is money was made or won, in my case, which I admit. So in case it's going to take another long time to continue this, I'd like to point out, in light of the admission, that these things are really rather extraneous to the main issues. So with the admission that I admitted all the bank accounts, they were holding winnings from the casino, why are we going to be putting all this - I hope you don't have to look through this stuff, Your Honour, you know, because frankly it doesn't add anything to the issue you're going to have to decide, which is whether the winnings were legal. They've been admitted, but how much and where they were stored, frankly, is an extraneous consideration we could be able to do away with. So that's my suggestion or objection, if you can help in any way to shorten this process. THE COURT: Mr. Marin? MR. MARIN: Your Honour, first of all, I would like to finish putting - this is the last document I'm going to be putting in, subject to two other short statements by civilians, but I intend to call a witness, Your Honour, by the name of Penny Cookson, who's a chartered accountant who has reviewed these documents and will be filing a report of findings. It's a 30-page report and it's all based on these documents. Her report, if she's cross-examined - she'll be testifying as to - I've looked at the accounts of this bank and I've looked at the accounts at that bank, and so on. We won't be requiring them in her testimony, per se, but these are all the background materials on which she will file her conclusions. THE COURT: What do you anticipate her conclusion will be? MR. MARIN: Well, she will be, for example, concluding as to the average salary expense per week of the accused and operating the business at St. Laurent. She'll be giving the status of various accounts, the money flow and movement in those accounts. She'll be giving her conclusions on that, averages and so on, and all the materials that she'll be referring to are from here, and I don't expect, the way things are going, that she'll actually have to pinpoint, document by document, except that if there's an issue at any one point in time, there's an exhibit here and she can point to it and explain how she came to her conclusion. THE COURT: All right, is the evidence of the accountant disputed? MR. TURMEL: No. THE COURT: Do we need to hear from her? MR. MARIN: All right... THE COURT: I'm not telling how to run your case, but if there's an admission as to what her evidence would be... MR. MARIN: Yes, sure, Your Honour. Well, what I was going to do is simply call her and have her file her report, and I understood Mr. Turmel had some questions to ask her. If he has none, then we'll just file the report. If that's the situation, that's fine. THE COURT: Mr. Turmel and Mr. Sagle seem to be indicating no. MR. SAGLE: No, we've never basically contested that there were winnings and there was money and it went to the bank and there were expenses to pay. We have no problem with any of that, really. MR. MARIN: All right, so perhaps, Your Honour, we can do this: Perhaps we can file her report along with these, because if Your Honour is going to read the report, or if I make reference to it in the submissions, there'll be the back-up materials there for the record. THE COURT: All right, answer this: If I read the report, do I have to read all of the other materials? MR. MARIN: No, you don't, Your Honour. THE COURT: Okay. Thank you, Mr. Turmel. MR. MARIN: Just want to be very cautious, Your Honour. So can we have Penny Cookson's report, please? THE COURT: All right, Exhibit 12, then, will be the banking documents in the binder. EXHIBIT NUMBER 12: Binder of banking documents. - Produced and marked. THE COURT: Exhibit 13 will be the report of Miss Cookson. EXHIBIT NUMBER 13: Report of Penny Cookson, chartered accountant. - Produced and marked. THE COURT: And just to be clear, then, the Defence is not disputing any of the exhibits which have been filed to date by Mr. Marin, including the report of Miss Cookson? MR. SAGLE: Correct, Your Honour. MR. MARIN: Your Honour, I believe we're now at Exhibit 14? Could this be the Percs' statements? There's Lily Percs and Lester Percs. THE COURT: Exhibit 14, then, will be the statements of the Percs. MR. MARIN: Yes, Lily and Lester. EXHIBIT NUMBER 14: Statements of Lily and Lester Percs. - Produced and marked. MR. MARIN: Okay, the final exhibit, Your Honour, are the articles of incorporation of the St. Laurent establishment. THE COURT: The name of the corporation? MR. MARIN: 2869748. THE COURT: All right, and this is an Ontario corporation? MR. MARIN: Yes. It's incorporated federally, Your Honour, under the Canada... THE COURT: Exhibit 15, then, will be the articles of incorporation of 2869748 Canada Ltd. EXHIBIT NUMBER 15: Articles of incorporation of 2869748 Canada Ltd. - Produced and marked. MR. MARIN: If I may just have a word with my investigator for a moment, Your Honour, because we've got three more witnesses and then the case will be through. All right, Your Honour, so there remains three individuals I intend to call. The next one, his name is Ron Sheppard, director-general of the casino in Montreal. THE COURT: Mr. Sheppard. MR. MARIN: Yes. Ron Sheppard. RONALD SHEPPARD: SWORN EXAMINATION IN-CHIEF BY MR. MARIN: Q. Mr. Sheppard, can you tell us where you work, right now? A. At Casino de Montreal. Q. And what is your position there, please? A. I'm director-general. Q. I understand, sir, that the Casino de Montreal is an establishment that has just been recently started; is that correct? A. That's correct, yes. Q. Okay, can you give us the date it opened? A. It opened on October the first, 1993. Q. All right, and have you been director-general of that casino since then? A. Yes. Q. All right. Now, I understand, sir, that prior to that, you were involved in your own corporation; is that correct? A. Yes. Q. And can you tell us about that? MR. TURMEL: Excuse me, Your Honour, this questioning has nothing to do with my case if it's to establish Mr. Sheppard's credentials as an expert in the field of casinos. Bank in 1977, he was an expert in my trial at that time and I see no reason not to grant him that status here, as long as it doesn't deal with the mathematics of gambling, for which I don't think he may have the statistical credentials. But in all other respects, if the Crown is asking these questions to accept him as an expert, we have no problems there, except with respect to the mathematics of gambling. THE COURT: Mr. Marin? MR. MARIN: That's fine, Your Honour. I have a copy of his resume, if that could be filed as the next exhibit. THE COURT: Exhibit 16. EXHIBIT NUMBER 16: Curriculum vitae of Ronald Sheppard. - Produced and marked. MR. MARIN: Q. Okay, Mr. Sheppard, just to assist the Court in establishing what your area of expertise is, I understand, sir, that you worked for the RCMP prior to that, in the past; is that correct? A. Yes, until 1976. Q. Thank you, and what is the specific area of your expertise? What area do... A. I was involved in the investigation of illegal gambling up until 1976, following which I was involved in the regulation of gaming activities for seven years as director of the Gaming Control Branch in the Province of Alberta. Q. Yes? A. Following that, I was the director of the casinos in the Province of Manitoba. Q. Okay, and how long were you director of the casinos in the Province of Manitoba? A. Eight years. Q. Mr. Sheppard, are you of any assistance in helping us determine how a casino makes money? Can you tell us about that? A. Well, casinos make a profit in two ways by operating what can probably be characterized as two types of games: The first kind of games would be called games of chance... Q. Yes? A. ...and the second kind of game would be a game of mixed chance and skill. For example, a game which is wholly of chance would be a game like roulette. A game of mixed chance and skill would be one such as blackjack. In the case of games of wholly skill, the difference between the true odds and the pay-off odds gives the house an advantage. In the case of non-self-weighted games such as blackjack, the advantage for the house derives itself from a variety of factors: The rules of the game, the number of decks in use, the skill of the players, and a substantial advantage on the average player is that the player must play before the house. There are also a number of variables that go to skill. The skill of the player can in many cases determine the outcome of the game, and, as a result, the negative expectation generally contributing towards the profitability of a casino determines itself as a result of the lack of skill of players. Q. How would you qualify the skill of the average player? A. Well, the skill of the average player generally is not high. I think it's necessary to qualify that. There are players that play with a limited degree of skill. There are those that play what is commonly called "basic strategy," which is nothing more than the exact strategy to hit, stand, split and double. Beyond that, there are more sophisticated methods of playing, such as card counting, which is somewhat more complicated. There are fewer people that are successful card counters and still fewer that go the next generation of shuffle-tracking, and that's only possible in the case of certain types of multiple game shuffles. Q. Now, when you talk about negative expectations, what do you mean by that? A. Well, in order to quantify house advantage in the game of blackjack, it's necessary to make an assumption, and that assumption can only be made - and I'm not pretending to be a mathematician at all, because I'm not that - but you have to make an assumption, and usually the mathematics of it is done based on the assumption that all of the players are playing basic strategy. That is simply to say that if everyone played the correct strategy for hitting, standing, splitting and doubling, taking insurance, and so on, in each case one would be able to attach a percentage value to each of the rules in the game. For example, in Casino de Montreal, everybody playing basic strategy, the negative expectation of the player is .88. That is simply to say that 88/100ths of a cent of every dollar bet, the house will keep, if every player in the place played basic strategy. So that is the theoretical house advantage, if you want to say there's some theoretical one. In fact, it's much higher than that, probably on the magnitude of one and a half or two percent, because not everyone plays basic strategy. Q. Now, speaking in more sort of practical terms, Mr. Sheppard, in blackjack, you've indicated that there are two reasons why the house has an advantage. Number one is that the player must play before the house, and number two has to do with skills; is that correct? A. Yes. Q. Now, going to your first criterion, the player must play before the house: Can you explain what that means in lay language? A. The dealer, who we'll call the house, in a game of blackjack first ensures that every player at the table has made a bet, following which he deals two cards to every player. In most places in Canada, the dealer only takes one card; in the United States, they tend to take what's called a "whole card," which is one card up, one card down. Irrespective of that, following each player examining the two cards that they have received, they then have a decision to make. They have to decide whether to stand on the hand, to take additional cards called "hits," to split the hand in the case of duplicate cards, or double down. In the case of those opportunities for doubling down, consistent with the house rules, for example, ten or 11 is commonly a hand that one might double down on. "Double down" simply means placing an amount equal to that amount placed as your original bet. So there are options available. Following all of the players completing their hands, or, in some cases, players will call for an additional card, a hit, and will exceed a count of 21. As a result, that's called a "bust hand." It's a losing hand. The bet is lost to the house. So in that case, the player played before the house and lost his hand. If there were one dealer and one player and that player had lost his hand by "busting," if you will, it would be unnecessary for the house to even complete playing of their hand. Q. All right. Now, Mr. Sheppard, what is a "betting handle"? A. A betting handle is the total amount of money wagered on an event. Q. I understand, sir, that you had the occasion to look at the data collected by a police officer, Sergeant Fotia, concerning the hourly betting handle of the Casino Turmel; is that correct? A. I saw some documents. I... Q. Okay. A. ...don't recall seeing anything with that particular information, although if I saw it again I might recognize it. Q. Yes. I'm showing you Exhibit Two, sir. A. Yes. Q. Have you seen this document before? A. Or one similar to it, yes. Q. One similar. I'd just like you to take a moment to look at it, and the right column, the last column, indicates "Hourly betting handle." A. M'hm. Q. You've indicated what a betting handle is. This is represented on an hourly basis. Now, looking at the data collected, what do you read into this data in terms of the occupancy of the area? A. Well, assuming these figures represent the hours of play and looking at what is entitled "hourly betting handle," one would conclude that during the period of an hour, on a blackjack table with six players, $3,000 was wagered. Q. Are you able to take this and compare, by industry standards, what would be the worth of that? How does that compare to industry standards, if there are any? A. Well, there aren't any industry standards for hourly betting handle, nor are there averages. It will vary from casino to casino. In casinos, one does not deal in handle; they deal in what is called "drop," which is the total amount of money, currency, exchanged for chips. Since in practical terms it's not possible to determine betting handle, what is used is a percentage of drop, which has nothing whatsoever to do with theoretical expectations, or anything else. What is on this document may well represent handle, and the sort of thing that would be used for in a casino would be something on the magnitude of ten percent of the players that might be premium customers, where one would calculate average bet size times number of bets per hour times number of hours play, in order to determine an average bet figure which would put one in an average play, high roller, category. And that would vary from casino to casino depending on the limits and depending on their complementary policy. That's the sort of thing that these figures that I see in this document would be useful for. It would certainly not be a reflection of anything except how much money is being bet by a number of people. And we see here hourly betting handled - for instance, the first column of $3,000 by six people in one hour would simply mean six divided into $3,000 would be the average bet by each player if you wanted to average it out. Q. Now, the Exhibit Two refers to a formula to arrive at the hourly betting handle; is that correct? A. I don't see any formula on this document. Q. I'm sorry. If I may just have a moment. Okay, the exhibit that you have does not have the formula; it has the final result of the hourly betting handle; is that correct? A. Yes. Q. Now, the data on the last right column was used using a betting handle formula. A. M'hm. Q. Are you familiar with that terminology? A. Well, yes. What I've just made reference to, that is to say, average bet size times number of outcomes per hour times number of hours played times game advantage equals a figure. To determine betting handle, a betting handle is nothing more than the total amount of money bet on an event. You might say a number of events, an hour's events on a blackjack table, or one blackjack hand, is a handle. Q. Now, I'm showing you a betting handle formula which was used to produce the data on Exhibit Two. A. Yes. Q. Are you familiar with that formula? A. Yes. Q. Okay, can you tell us how you're familiar with it? A. Well, it's exactly what I just made reference to, except in this particular case it's taken the entire blackjack table by simply saying the number of players times the average bet - in this case $10 - times 50 hands per hour equals an hourly betting handle of $10 times 50 hands, which would be $500. Q. Now, this particular formula, if you were to give it an assessment as to whether it's conservative, whether it's generous, how would you qualify this formula? On which side does it err? A. Well, if the average bet size is accurate, it will be fairly accurate. The ability of the person watching to identify the exact amount of money bet, and if the person seeing the amount of money bet - good example: Floor staff watching a casino game, if they're on the job, can come within a very few dollars of the actual average bet size by a player or by a group of players if they're betting in the same range. MR. MARIN: All right, could the next piece of paper be the next exhibit. Exhibit 15, are we at? CLERK OF THE COURT: Exhibit 17. MR. MARIN: 17, please. CLERK OF THE COURT: The formula? MR. MARIN: The formula. THE COURT: Exhibit 17. EXHIBIT NUMBER 17: Formula. - Produced and marked. MR. MARIN: Q. All right. Now, you originally referred to a "percentage of drop" earlier in your testimony. Can you tell us what that is? A. Well, because, in practical terms, in casino operations it's impossible to establish handle, what is used is what's called "drop," which is the amount of currency exchanged for chips. So that in order to calculate win and hold percentage - hold percentage being the percentage of currency exchanged for chips that the house wins, and is characterized as "win-hold percentage" - that is used rather than the betting handle. So, for example, to over-simplify it, on opening a blackjack game, there is no money in the drop-box; there are chips in the tray. The chips in the tray are counted. That's called an "opener." Players arrive at the table and exchange currency for chips. The currency is put in the drop-box, the players get the chips, they begin to play. From time to time during the operation, it's necessary to add chips to the tray because maybe it's running low. That's called a "fill." On other occasions, because the house is winning, it's necessary to take chips out of the tray and take them back to the cage. That's called a "credit." At the end of the day, when the casino closes, the chips are inventoried again in the tray. That's called a "closer." So in order to calculate the win, we simply take the opener plus the fills. Both of those figures represent minus. The closer plus the credits are plus figures. So that the difference between subtracting the sum of the opener and the fills from the closer and the credits will equal a plus or minus. 99 percent of the time it's a minus figure. That minus figures is what is subtracted from the drop, the total currency placed into the drop box. THE COURT: Sorry, could you repeat that last part? The minus figure is subtracted from...? THE WITNESS: The sum of all currency in the drop-box, which is called drop. THE COURT: All right, thank you. THE WITNESS: The result of that calculation equals win or loss. In the case of a win, you associate a percentage to it by simply dividing the amount won - win over drop times 100 gives you the percentage. Or divide the drop into the win; it's all the same thing. MR. MARIN: Q. What I'd like to come back to, Mr. Sheppard, is this hypothetical percentage of drop that's used in the industry. A. The drop is not hypothetical; it is actual currency. It's a very precise, exact amount of currency that's counted... Q. Okay, but do you use a percentage to calculate expected profits or gain? A. Yes. Q. Okay. A. Yes, using the formula I just described will give you the dollar value of the win or loss, and, in the case of the win, we calculate the percentage of the drop that the house kept, which, in the case of blackjack, on average, in the industry is around 15 percent. Q. Now, moving on to another area, Mr. Sheppard, in operating a casino, can you tell us if there is any food or drink available to the players? A. In all of the casinos that I'm acquainted with, yes. Q. And can you tell us if there's a cost to those items, cost to the players? A. In some casinos, yes, there is; in others, no, there isn't. Q. All right, and in cases where there is no cost, can you tell us where you've seen that, please? Examples of casinos that... A. Well, all of the American casinos that I'm acquainted with provide complementary beverage. Likewise in Canada, at least the commercial casinos in Canada. I'm not familiar with what happens in the charity casinos. Q. Okay. A. In Europe, the same thing applies, and I emphasize that as "players." As far as the food side of it goes, food is not freely given away. Food would be given away at no cost through a complementary program or the house policy on so-called "comps." And the value associated with those comps depends on the value of the player to the casino in terms of how high he bets. Q. And the complementary drink and the complementary aspect that you offer to the players: Why is that offered? What is the..... Your Honour, I can hear - sometimes when I ask questions, I can hear whispers of answers in the back. So I would ask that, whoever they're coming from.... THE COURT: The gentleman in the front row? MR. MARIN: There's somebody who's answering the questions for the witness. THE COURT: Yes, if everyone could stop whispering. Particularly, I notice the gentleman in the front row. If you have to persist, sir, you'll be asked to leave. MR. MARIN: Okay, thank you. MR. MARIN: Q. All right. Now, the complementary drink or complementary food in the cases you've seen: Why does the industry provide this to players? A. It's a marketing tool. There are many forms of marketing, depending on the type, style, character, whether it's up-market or down-market in the industry. It's just another marketing technique that is used to extend good will and hope for player loyalty at the property where they're offering more than the next property. Q. Okay. Now, in the case of the Casino de Montreal - and as well using your expertise - when you open up a location, you're trying to create good will, and what other expenditures would you normally see associated with that? A. In terms of marketing? Q. Yes. A. Well, there are all the usual things that are stock-in- trade with any business. There's advertising, promotional literature, special events, public events, parties, receptions. It's not dissimilar from any other business that is attempting to attract the public. MR. MARIN: I believe that's all the evidence, Your Honour. If I could just have a moment. MR. MARIN: Q. I'm showing you, sir, a document called "Casino Turmel Blackjack Procedures," prepared June 1993. I believe you've seen this document before; is that correct? A. No. Q. All right, well, if you'll just take a moment to look at it. A. Yes, now that I've read this, I have seen this material, but not in this form. Q. All right. A. It's been on a different-looking document, but the substance of it is much the same. Q. Right. Now, the document entitled "Blackjack Procedures," various procedures documented on this paper, in your perspective, how would these procedures correspond to the procedures in the professional establishment such as the one you run, the Casino de Montreal? A. That certainly would be an extremely abbreviated version of those things that are similar. The one thing that is unlike what is in Montreal is those portions of that document that refer to "U- Bank." Q. Are you familiar with that? A. No, I can just read into it, based on what - and this is only an assumption on my part, that somebody else gets to bank the game. Q. Okay. All right, I see you're a quick reader. All right. Just finally, Mr. Sheppard, has the Casino de Montreal been a successful enterprise since it opened in October? A. Yes. Q. Now, the purpose of a casino, in your expertise, sir, what is the purpose of a casino? What is the ultimate purpose, the ultimate goal of a casino? A. Well, I think there are a variety of reasons that casinos are operated. The number one reason is profit, to generate revenue. Q. And how is that generated in the game of blackjack? A. As a result of the house having an advantage over the player. MR. MARIN: Thank you, those are my questions. ********** CROSS-EXAMINATION BY MR. TURMEL: Q. First of all, I'd like to thank you very much for all this fine evidence and information. The two attorneys seated here are both card-counters and they were nodding all the way, so your expertise hasn't diminished in any way from 1977. I do have a couple of questions, though, and the first one has to do with that U-Bank table. In your casino in Montreal, do you allow the players the opportunity of taking the bank? A. No. Q. Now, if you'd had a solid, strong card-counter on your staff, with the very generous rules that I have where - the point is, if you'd had someone, a solid card-counter who could beat the game, would you be prepared to then open up a U-Bank table, would you think, and allow your card-counter to play against people who wish to be the bank? Would you see that as being in any way a disadvantage, if you let them be the bank? A. No, we wouldn't permit it. Q. So you don't allow them to have the bank whatsoever? A. No. Q. Would you say that the ability of the players to have the bank would change the information and numbers that you've given us here today? A. Well, if the players became the house, in effect... Q. Yes? A. ...they would have the advantage that we now have. Q. That's right, so if it were shared back and forth - well, let's take a hypothetical situation, then. You do come to my Casino Topaz, which is a private games room - call it a casino if you will, or not - but you come and, at that point, we sit down to a card game, blackjack, independent of the rules. Now, you did state earlier that there's a substantial advantage from the dealer going bust and playing last, correct? Which only he has and the player doesn't have. Would you say that it's a substantial advantage for the player to be able to double down... A. Well... Q. ...as an option? A. ...in certain circumstances. Q. That's right, but I mean, if the house barred that option... A. One cannot say, carte blanche... Q. But on average, the average player knows his double downs pretty well, doesn't he? A. Most do. Q. Therefore, you would be able to say that it is an advantage that goes to the player to be able to double down. A. In certain circumstances. Q. Which is not available to the dealer, correct? A. That's true. Q. Okay, now, I'm trying to compare that with the advantage the dealer has in going last, compared to a whole bunch of advantages the player has that the dealer doesn't have. I have to show some balance here. Splitting: Splitting a pair of eights from a lousy 16 into two different eight-hands: Would you say that is a good option for the player to have? A. Well, of course, all of the strategy... Q. Granted. A. ...of play is contingent upon what the dealer is showing... Q. Well, no, always split aces and eights, correct? MR. MARIN: Well, Your Honour, the witness should be allowed to answer the question. MR. MARIN: Surrender on a 16, if they'll let you. But you don't have surrender at your casino. MR. MARIN: Your Honour.... THE COURT: Yes, Mr. Turmel... MR. TURMEL: Oh. THE COURT: ...when you ask a question, it's a good idea to let the witness finish. MR. TURMEL: Okay, but he didn't want to make my point. The point is... THE COURT: Well, ask the question and then wait. MR. TURMEL: Okay. MR. TURMEL: Q. The pair of eights, the ability to split that pair of eights is of advantage to the player. A. Yes. Q. The dealer doesn't have that advantage. A. That's true. Q. Okay, the ability to split - oh, I've done splits, I've done doubles - the ability to surrender, okay: Is that, would you say, of advantage to the player also, an option that the dealer doesn't have, which can be used to the advantage of the player, but can't be used to the advantage of the house. A. Depending upon the skill of the player. Q. Again, it's an advantage that only the player has, though. Surrender. A. A skilled player. Q. Fine. And insurance: Now again, for the skilled player, it's still an advantage that the player has that the house doesn't have. A. That's correct. Q. And so my point is, therefore, that you've mentioned one advantage that the dealer has that the player doesn't have, and you've now acceded to four or five advantages that the player has that the dealer doesn't have. MR. MARIN: He actually said two, Your Honour. MR. TURMEL: Double down, split, surrender..... MR. MARIN: The advantage of the dealer. He pointed to two. MR. TURMEL: ...and insurance. MR. MARIN: He's quoting the witness as saying the dealer would have one advantage. He actually gave two in his examination in- chief. He talked of the skill, as well. THE COURT: Skill and the bank. MR. MARIN: And the odds of the game being in favour of the bank. THE WITNESS: I think there's just two things, Your Honour, that I made reference to: One was the fact that the player must play first. THE COURT: Yes? THE WITNESS: The other goes to the rules of the game. The rules of the game for the average player, even the basic strategy player, still favour the house. MR. TURMEL: Q. In other words, if one took the combination of options available to the player and this big option available to the house, your statement is that the average player is still .88 percent down. A. A basic strategy player would be, yes. Q. Yes, right. But the point is, there are still - there's only one advantage... A. And that's theoretical. Q. Right, right. No, empiric. You know, the computers have done it. They've tested basic and said, "This is the disadvantage if the computer plays it. So it's absolutely empirical, right? A. Well, I don't agree with that. Q. Wait a minute, now. Are you saying that the actual mathematical determination... A. Oh no, not at all. Q. ...of basic strategy hasn't been - well, that's all I asked. A. No. Q. Okay. A. All I'm saying is the difference between theoretical and empirical, in my view, is that empirical, to me, is something we can quantify by seeing happen. The computers simulate, for example, a million hands. We're not going to see a million hands sitting there in one table. Q. But we will know its number is absolutely quantified properly, won't we? A. That is so. Q. That's my point. A. Yes, correct. Q. So my point is, that's empirically determined. Okay. Now, this advantage, now, that the house has: It could be a little bit, it could be a lot, and that's against an unskilled player. Now you have the opportunity, you come into my casino in Ottawa, my games room, which is different from yours, and at that time nobody else is in the room, by the way, just you - you're the first person in the door - and we sit down to play blackjack, and I tell you, "By the way, let's take turns playing blackjack; you take it half the time and I'll take it half the time, the bank." Would you say our game between us - are you getting what I would call a fair game between us? A. Sure. Q. Independent of how big the advantage, even if instead of a bank we had a gun and the guy with the gun wins, as long as you get the gun half the time, it's a fair game, right? Okay. And obviously, now, if more people come into the game and they are also given the same opportunity that you were to play with me - not with you, now; you must remember that they bring that up that the rules are funny. You can play with me and I play with everybody, but you can't play with everybody. I was convicted of allowing people to bank the rest of the table in 1977. That's why this here. But again, my point is that as long as you are getting your chance to bank me back, do you state that you were getting a fair game? A. Well, as soon as... Q. You and me, heads on. You can be the bank half the time and I can be the bank half the time. Are you getting a fair game? A. Yes. Q. Okay. Same rules apply to everybody else in the room. Are they getting a fair game too? A. Providing it's one-on-one in your description. Q. That's right. It's always a contest between myself or one of my agents and you. Now, my point is, independent of how many - like a chess master - independent of how many other people I play with, are you still getting a fair game? A. If, for example, seven players sit at the table and you're the bank, that is not the same as one person playing with one other person. Q. So that means that if you're playing with me heads on and you're getting a fair game... A. M'hm. Q. ...and now, all of a sudden, I start playing craps with somebody else at the same time as I'm playing blackjack with you, does that change your odds of winning? A. Not on blackjack. Q. Okay. We're playing blackjack and I start playing poker with someone else, a third person. Does that change your odds of winning? A. No. Q. And finally, I start playing blackjack with a fourth person. Does that change your odds of winning? A. Are you playing the same hand against them that you're playing against me? Q. Does it matter? A. Yes. Q. No, it - well, tell me why. A. Well, because the advantage that the house has is now, for example, not against one person but against two, three, six, seven, however many you're... Q. How does the fact... A. ...playing against collectively... MR. MARIN: Let him finish. MR. TURMEL: Q. How does the fact that another... THE COURT: Mr. Turmel... MR. TURMEL: I thought he had finished. THE COURT: No. Please go ahead, sir. THE WITNESS: I'm sorry, what's the... MR. TURMEL: Okay, you had finished. MR. MARIN: Well, I don't believe he... THE COURT: I don't believe he had either. The question was, in what way the odds favour the house when you increase the number of players that are playing the same hand against the dealer. THE WITNESS: Well... THE COURT: I think that was the last question. THE WITNESS: Well, the advantage of the house against seven bets is seven times, assuming everybody has bet a dollar. You have seven hands. One of the characteristics is that players must play before the house. So you're playing seven players against one dealer, versus his first example where there was only one other player playing one hand against one hand, back and forth. As soon as the implication arrives where there are seven players, then there are seven players that now have to play their hand first, against one hand, rather than against seven other hands. MR. TURMEL: Q. So you're playing in first base, and let's assume that you're a fine basic player. You're playing basic. You're at your .8 percent disadvantage. Now, the house has a .8 percent advantage over an average basic player. Now, let's assume there are five players instead of just one player. What is the house's advantage over the table now? A. The same for each player. Q. You just said, a minute ago, it was five times greater, to the judge. A. In terms of dollars. Q. Well, the point is, when a dealer loses, does he not lose seven times as much? So that it's not that the advantage to the house has changed - am I correct? - or is it that the volume, the size of the bet, has changed? A. You're correct. Volume. Q. But the actual advantage to the house hasn't changed. A. It's dollars I'm referring to, because... Q. And I'm referring... A. ...when I talk about advantage, I talk about profit. Q. I was talking about the .8 percentage. A. That doesn't change. Q. Okay, that's my point. Now, so you are playing a basic game with me at a .8 percent disadvantage, if you're basic. If you're counting, it'd go the other way. And we take turns being the bank, if we wish. Now, I'm saying, is the fact that another guy is sitting at the same table as you going to affect your percentage? That's my point. Not... A. Percentage, no. Q. So in other words, it doesn't matter how many people are sitting at the table with you, it doesn't affect your game whatsoever. A. It doesn't affect percentage. Q. Of your game. A. Right. Q. Right, so therefore, in a sense, whether there's another person playing is mutually exclusive of your results, correct? A. That's true. Q. All right, well, that was it. The point was, therefore, that if you were getting a fair game with me, heads on, and you're still getting the identical odds with another guy sitting beside you, are you then getting the identical odds with a full table sitting beside you? A. In terms of odds, yes. Q. Correct; that's all I'm looking for. Not money. Because if that table of one person has a hot night, I lose so much, but if the table of seven has a hot night, I lose seven times as much. So we both agree that the volume is bigger, but the percentages don't change; therefore, if you were getting a fair game with me, heads on, and you were getting a fair game with me with another guy at the table, and you were getting a fair game with me and a full complement of people at the other table, my point is, were you getting a fair game at all times? A. Based on percentage, yes. Q. Thank you very much. And every other person, every other player in the room, given the condition there was a U-Bank table where they could go and say, "I want to be the bank against Turmel," and they'd sit there all night and play me, you know, as much as they want, given those conditions, that there was really a U-Bank table there where you could be the bank if you wanted to have the time, would you therefore say that everybody in the room, under those conditions, was getting the same fair game that you were? A. Providing all things were the same, including the limits. Q. Thank you very - well, see, the point is, if I gave you the option of setting your own limits - a poor guy can't afford to fade me at $30 a shot. Therefore, in 1977, a judge convicted me because he said the poor guy can't afford to. But now that I say only you and me are playing heads on at stakes that you can pick and afford, is it not fair to say that you have not only the opportunity to be bank but you have the financial opportunity to be the bank? A. Yes, but in terms of bank, one has to take limits into account. Q. If you have a $1,000, set a $10 limit. You can bet $10 against me when I'm bank. You say, "I can bet $10 against you when you're the bank." That's in the rules by the way. You set your maximum bet when you're the bank against me. A. Then it's the same. Q. So therefore, you were getting a fair game, as was everybody else in the room. A. Yes. MR. TURMEL: Okay, then, sir. Thank you very much. I have no further questions to ask you here. ********** THE COURT: Mr. Marin? MR. MARIN: Yes, Your Honour. RE-EXAMINATION BY MR. MARIN: Q. When you were asked by the accused concerning the options that a player has - and I won't go through them all, but I believe he indicated the split eight and the ability to surrender, and so on - with these options available to players with your experience in the industry, what kind of skill would you expect a player would need to have to know these options and exercise them, and know when to exercise them? What kind of skill would you expect a player to have? A. Well, I wouldn't pretend to even guess now many play basic strategy, or close to it. To play perfect basic strategy, there are some players that do that. As far as card counting is concerned, there are not many people that are good card counters. They're a minority. In terms of average players playing an average game, let us say, 90 percent of the time they will make the correct decision. There are a large number of those people. Q. All right. Having heard the options available to the regular player and coupling that with the advantage that you've described to the house in your evidence in-chief, the end result, in your opinion, sir, who has the ultimate advantage in the blackjack game, bearing in mind all the options open to a player that Mr. Turmel put to you? In your opinion, who has the ultimate advantage? A. Well, I would suggest that the casino always has the advantage. Based on Mr. Turmel's questions and assumptions, if one were to take advantage, if every player that went to the casino took advantage of the opportunity to bank the game under exactly the same conditions with the same limits, then there wouldn't be an advantage. MR. MARIN: Thank you. ********** THE COURT: Sir, I have a couple of questions I'd like to ask you. I'm a little confused. You mentioned a figure of .88 being, as I understand it, a figure that 88 cents on every dollar that's bet would go to the house is a negative expectation. Is that... THE WITNESS: No, 88/100ths of one cent. Less than one cent on the dollar. Less than one percent house advantage. THE COURT: Right, so the .88 is actual percentage? THE WITNESS: Yes, and that percentage is predicated upon the assumption that, taking the rules of play into account, it's still based on the assumption that every player is playing perfect basic strategy. There's no other way to calculate those percentages unless you make an assumption first. THE COURT: Later on, you mentioned a figure of 15 percent. THE WITNESS: Yes. The .88 is the theoretical house advantage, based on a mathematical calculation. The 15 percent - well, I guess the best way to put it is this way: Out of every dollar bet, if every player were playing basic strategy, the house would keep .88 of a cent. Independent and unrelated to that is how much, in terms of dollars, the house will keep, and that is the 15 percent to which I made reference, which is that percentage that the house keeps of the currency exchanged for chips at the table. THE COURT: Which is the... THE WITNESS: 15 percent. THE COURT: Which is the average actual... THE WITNESS: Oh yes, indeed. Yes. THE COURT: Which would, I take it, be a factor of players not playing correctly? This would be a factor of player error? THE WITNESS: Yes, in combination with the built-in advantages of the game. THE COURT: All right. Your casino, as I understand it, doesn't have the U-Bank that we've heard about, or switching the bank, double down, split, insurance, these other options? THE WITNESS: We have splits, double downs, and we have insurance. We do not have surrender. We do not have U-Bank. THE COURT: Would the - as I understand from a question Mr. Turmel asked you about the U-Bank, if it was one-to-one alternating equally, then the advantage to the house and the player would be the same, when you include... THE WITNESS: Assuming both players were possessed of the same skills. THE COURT: Same skill level. You mentioned the one that you don't have is insurance. THE WITNESS: We do not have surrender. THE COURT: All right, would surrender be an option which would affect the theoretical or the actual percentages? THE WITNESS: Generally, insurance is only an advantage to the skilled player, knowing when and when not to take it. THE COURT: All right, if I went to a casino, it seems to me that I'd be better off playing poker than blackjack. THE WITNESS: I'm not sure about that. MR. TURMEL: Depends how good you are at poker. THE WITNESS: Again, that goes to the level of skill, because both games are games of mixed chance and skill. THE COURT: But there seems to be an inherent advantage in a dealer in a casino that would apply to blackjack but doesn't apply to poker. THE WITNESS: Well, I think the fundamental difference between blackjack and poker is that in blackjack you're playing against one hand, one dealer who plays according to a never-changing set of fixed rules. In poker, you're playing against all of the rest of the people seated around the table, however many that is. THE COURT: Thank you. Any questions arising from my questions? MR. MARIN: No, Your Honour. THE COURT: Mr. Turmel? FURTHER CROSS-EXAMINATION BY MR. TURMEL: MR. TURMEL: Q. The point made is that whether the advantage be .8 percent against the player, one percent, two percent, five percent against lousy players, as long as they have the right to be the banker half the time, whether they exercise it or not - if you have the right to be the bank against me and chose not to, would you say you were still getting a fair game? A. It would be a fair game provided I was possessed of the same skill level as you. Q. Oh, so in other words, the fact that I may be better than you makes me a cheater? A. Not at all. Q. Well then, how can you say it's not a fair game just because I'm better than you? A. The opportunity is fair, certainly. Q. Well, okay... A. But if I am a terrible player and you're a highly skilled card counter and we're playing... Q. I should go to jail? A. ...against each other, or vice versa... Q. But my point is... MR. MARIN: I don't think this witness can say whether or not Mr. Turmel should go to jail. MR. TURMEL: Oh, Okay. MR. TURMEL: Q. The point is, we have a situation here where you and I want to play cards. Let's forget blackjack with a bank for a minute, because it seems to confuse. We want to play gin rummy. Now, deal alternates all this kind of symmetry. I say, are you getting a fair game if we sit down and play gin rummy together? A. Well, my answer is the same whether it's gin rummy or blackjack. Q. Well, there seems to be... A. Well... THE COURT: Mr. Turmel.... THE WITNESS: We talk about what advantage the house has. In a gin rummy game, there isn't a house. But the principal is the same. On balance, sooner or later, the person possessed of the greater skill will come out the winner. MR. TURMEL: Q. And does that now render that a question of unfairness? A. It has nothing to do with fairness at all; it has only to do with skill level. Q. Thank you very much; that was the point I really wanted to establish that wasn't as clear. The fact that you have to be the bank, independent of your skill, gave you your fair game. Not the fact that you were any good at all. A. It's not a question of fairness. Q. So whether you're good or not, having the right to be the bank gave you a fair game against me. A. It may be fair... Q. It reduced it down to - okay, whether or not you're skilled or not, giving you the bank reduces it down to a test of pure skill between you and me. Another way of putting it. A. Well, not entirely skill. Chance is still involved. Q. Well, yes, I mean, chance is always presumed within these things, but other than that, the normal element of chance that's not there, now it boils down to the better of us is going to, in the long run, win the money. So I just want to establish that it's okay for me to win your money... A. In the passage... Q. ...and you still had a fair game. A. ...of a long time. In the short term, anything could happen. Q. Yes, but the point I want to establish is, I have the right to be better than someone else and they could still walk out saying, "I got a fair game." You sat in this game with me and I'm a card counter, and a strong one, and probably, even if we rotated, you would lose. Probably. You know, over the long term. My point is, the fact that you expect to lose against me because I'm a card counter, or whatever, does that make it an unfair game for you? The fact that I'm a better player: Does that make it an unfair game for you? A. Well, it's not different in any game. For example, poker. A skilled player versus an amateur. It's the same thing. Q. Okay, so my point... A. It's got nothing to do with - in my view - the word "fairness". Q. When skill is involved. A. To put it a different way, it's got nothing to do with fairness, but it has nothing to do with being unfair either. Q. Thank you very much. So in other words, the fact that I may have been better than you did not detract from the fact that the casino rules allowing you to be the bank gave you and the others a fair game. Fair expectation, fair opportunity. A. They gave exactly the same opportunity. Q. Okay. A. How you exercise it is another issue. MR. TURMEL: Okay, thank you very much. ********** THE COURT: Thank you, sir. MR. MARIN: I'm not sure, Your Honour, if you want to take an afternoon recess, but... THE COURT: That would be the decent thing to do. We'll take ten minutes. R E C E S S (3:27 p.m.) U P O N R E S U M I N G: (3:45 p.m.) MR. MARIN: Your Honour, the next witness would've been Marie- Paul Avanthay. The purpose of her testimony would've been simply to enter a distillation of spread sheets, operating spread sheets, from Mr. Turmel on St. Laurent. I have a document in my hand right now, and I've spoken to my friend and Mr. Turmel, and we've agreed that that can just be filed. THE COURT: All right, then, the document entitled "Spread Sheet..." MR. MARIN: "The Casino Turmel, Topaz," is what it's entitled, Your Honour, but it's a distillation of the spread sheet. THE COURT: All right, the Casino Turmel Topaz spread sheet will be Exhibit 18. MR. MARIN: Yes. It contains revenues and expenses with net profit loss. MR. SAGLE: Your Honour, I would like to make one comment if that's going in as an exhibit. THE COURT: Yes? MR. SAGLE: We are consenting to it being an exhibit for just what it is. It's an 18-day period of an entire time. I indicated to you earlier that there may be some disadvantage or advantage to the Crown to having the computers and the software in order to do this kind of thing. Another 18-day period may well have different figures on it... MR. MARIN: I agree. MR. SAGLE: So this is only one period which they have picked out of that which we, of course, not having that information, are not able to manipulate in the same way. THE COURT: You do have the information, though. MR. SAGLE: Big stacks of typewritten notes, yes. Nothing you can - not the flexibility to pick two dates and just, you know, have the totals run out on a machine. MR. MARIN: All right, Your Honour. In any event, we'll file this and I'll call a witness who'll be able to shed some light on that aspect of it. So there is an 18-day period here listed. Constable Young will have some relevant information to provide to the Court as to why we only have 18 days. I'd like that to be the next Exhibit as well as the spread sheets which were examined. They should be together. THE COURT: The first document is the summary and the second document is the printout for the 18 days. EXHIBIT NUMBER 18: Summary and printout. - Produced and marked. MR. TURMEL: Your Honour, is the purpose of this exhibit to prove my admission? You know, I mean, here we are getting back into tons of paperwork to prove that I won money, when I did. I admit it. So, you know, I hope, please don't go and read all that, Your Honour. I mean, it shouldn't be relevant, and why the Crown keeps loading you with all this information - it may look like a case, but it still adds up to nothing. So if there's any way we can dispense with this with an admission, I'd certainly like to. THE COURT: Mr. Marin? MR. MARIN: I have no comment, Your Honour. I'd like to call Constable Young as the next witness, Your Honour, please. CONSTABLE CHARLES YOUNG: SWORN EXAMINATION IN-CHIEF BY MR. MARIN: Q. Yes, Constable Young, I understand that you're from the OPP; is that correct? A. Yes. Q. And I understand that you're one of the lead investigators in this case; is that correct? A. Yes. Q. And I understand, sir, that you had some dealings with the spread sheets that were just entered as Exhibit 18, along with the final report; is that correct? A. Yes. Q. Okay, and you've heard Mr. Turmel say that - well, you were responsible, sir, and correct me if I'm wrong, for channeling the information to the expert, Marie-Paul Avanthay; is that correct? A. Yes. Q. What is her expertise? What is her area of expertise? A. She is the assistant controller at the Casino de Montreal. Q. Okay. A. She looks after the financial set-ups and framework there. Q. I understand she was under subpoena and in attendance here at the courthouse this afternoon. A. And is in fact present outside the courtroom, sir. Q. Okay. And the purpose of having her attend would've been to enter, as an expert, her analysis of the Casino Turmel spread sheets with the intent of separating the expenses from the gains; is that correct? A. That's correct. That's an analysis of the spread sheets that she was provided by myself, which is the spread sheets in its entirety that we received off the computer from the computer specialists from the RCMP. We have no more spread sheets than that 18-day period. We could not calculate anything more than that 18- day period. That's all we have. Q. Right. Now, you heard Mr. Turmel suggest to the Court that somehow these 18-days were select and that, had another period been chosen, it may have been more favourable to him. What do you have to say in response to that? A. The 18 days reflect everything that we have that we can complete the information and put an analysis on. If Mr. Turmel would be willing to provide us with more, we'd willingly accept it, but at present that's all we have in its entirety. It's not a selective thing to show Mr. Turmel in any bad light or good light; it's just simply all that we have. MR. MARIN: Okay, thank you. ********** THE COURT: Defence? MR. TURMEL: No questions. THE COURT: Thank you, constable. Mr. Marin? MR. MARIN: Yes, the final witness, Your Honour, is Harry Nesbit, who's with the Niagara Regional Police, Your Honour. HARRY NESBIT: SWORN EXAMINATION IN-CHIEF BY MR. MARIN: Q. Yes, Mr. Nesbit, I understand you're a member of the Niagara Regional Police Force; is that correct? A. Yes. Q. And how long have you been a member of that police force, sir? A. 25 years. Q. Okay, and what position do you occupy in that police force? A. I'm with the Intelligence Unit. Q. And I understand, sir, that you attended a meeting on February 19th, 1993, some time in the afternoon, in the City of Niagara Falls; is that correct? A. Yes. The meeting was at four o'clock. Q. Okay, and can you tell us who was in attendance at that meeting? A. Yes, the accused, Mr. Turmel, two of his associates, the mayor of Niagara Falls, the executive officer for the City of Niagara Falls... Q. Yes? A. ...a member of the Ontario Restaurant Association, a superintendent with the Niagara Regional Police Force, and myself. Q. Now, what was the purpose of this meeting? A. The purpose of the meeting was Mr. Turmel and two of his associates had a proposal to show or to give to the police officers in the City of Niagara Falls. Q. M'hm? A. This proposal was in regards to opening up a poker and blackjack casino in the Niagara Falls area. Mr. Turmel displayed pictures of the one in operation here in Ottawa. Among the photos that he had, he suggested that employment would increase in the Niagara Falls area. And also, again with the photos, he produced a statement of - a profit-and-loss statement - for January 1993. Q. Right. A. I just looked at the photos and I looked at the statement which had quite a few numbers on it, six-digit numbers, and I didn't pay too much attention to it, but as we were perusing this material, Mr. Turmel suggested that the gross from the Ottawa casino was in the neighbourhood of $600,000. Q. For what period of time? A. January 1993. Q. M'hm? A. Also, Mr. Turmel said that he gave out $175,0000 in wages to 100, or so, employees that he employed at that casino. Q. M'hm? A. And later on in the - oh, pardon me - he also said that the employees would probably receive another $175,000 in tips. Mr. Turmel, later on in the meeting, suggested that out of this small operation he would make for himself $350,000 to $400,000 a year. Mr. Turmel said that he was a professional gambler and, as a professional, this was not a whole lot of money. He compared himself to professional golfers and hockey players and they receive more funds than his profession. And that was just about the extent of the meeting. MR. MARIN: Okay, thank you. ********** THE COURT: Defence? Cross-examination? CROSS-EXAMINATION BY MR. SAGLE: Q. Sir, do you have any notes with respect to this meeting? A. Yes. Q. Did you refer to those today? A. Yes. Q. Do you have them with you? A. Yes. Q. May I take a look at them? They were made at the time of the... A. Right after the meeting, sir. Q. Right after the meeting? A. Yes. Q. In your own writing? A. Yes. This here's another case. Q. Sorry? A. This here's another case. Q. So these are them, starting February the 19th? A. That's correct. Q. And who are you saying was present? A. There, I've listed the names. Did you want me to tell you... Q. Is this the part, here? A. Here's four o'clock Q. Yes? A. I attended at City Hall... Q. M'hm. A. ...which is in Niagara Falls. I had a meeting with "R.K." Q. Who's... A. That's Superintendent Ron Kisher (ph)... Q. M'hm? A. ...the mayor, Wayne Thompson... Q. M'hm? A. ...Mr. Lestik (ph) is the CEO... Q. M'hm? A. ...and "me" is me. Q. Okay. A. "Sandeline" (ph) is Mark Sandeline, an associate of Mr. Turmel's. Q. Okay. A. Dennis Mazerolle (ph) is also an associate of Mr. Turmel. There's Mr. Turmel himself and the president of the Ontario Restaurant Association. Q. Okay. A. I don't know his name. Q. And I see next it says, "$175.00" A. $175,000, it should be. Q. But it says "$175.00" A. I missed a zero. Q. So you recollect it differently than what your note says. A. Yes, I missed a zero. It's $175,000 in wages, $600,000 gross, and $350,000-$450,000 wages for Mr. Turmel. Q. Meaning, I take it, $350,000, not $350. A. Yes. Q. Are there any other errors in your notes that... A. No. Q. ...we should look at? A. I just missed a zero. MR. SAGLE: Okay, I have no further questions, Your Honour. ********** THE COURT: Re-examination? MR. MARIN: None, Your Honour. THE COURT: Thank you, sir. MR. MARIN: That's the Crown's case, Your Honour. THE COURT: Is it the intention of the Defence to call any witnesses MR. SAGLE: Well, Your Honour, I think we may wish to make a motion for directed verdict and I understand we may have to make an election at that point. I'd like to be able to review the evidence that's been put in, and the statements and admissions, to make sure there's nothing I think that is missing, or just touch up on a few points, just in case there's something. My guess is we'll not be calling evidence, but what I'd like to suggest is that we look at this stuff overnight and probably make a motion in the morning, first thing, for directed verdict. If I have to call evidence, it should be no more than one witness. And then, after that, we'd be ready for summations. THE COURT: That's fine. We'll recess, then, till tomorrow at ten o'clock. ********** C E R T I F I C A T I O N: THIS IS TO CERTIFY that the foregoing is a true report of the proceedings transcribed herein to the best of my skill and ability. N. PAUL WARBURTON (Certified Court Reporter) ********** #93-18193 ONTARIO COURT (PROVINCIAL DIVISION) HER MAJESTY THE QUEEN against JOHN TURMEL ********** T R I A L (VOLUME FOUR) HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT on Friday, February 25th, 1994, at Ottawa, Ontario. ********** CHARGE: S. 201(1) ********** APPEARANCES: A. Marin, Esq. Crown Counsel J. Turmel Appearing for Self TABLE OF CONTENTS Exam. Cr.- Re- WITNESSES In-Chief Exam. Exam. ********** E X H I B I T S EXHIBIT NUMBER Put in on Page 19 Casino Turmel Blackjack Procedures. 66 THE COURT: Good morning. MR. MARIN: Good morning, Your Honour. MR. SAGLE: Yes, Your Honour, I believe Mr. Turmel's going to commence this morning. MR. TURMEL: Yes. Now, you will note, Your Honour, yesterday, upon my plea, that I stood mute. There was a reason I stood mute and it's not explained in Section 606, but if you would take a look at Section 601 in the annotations - I believe it's - I hope it's the same - where it says - it's talking about the Wilson case in the annotations. Maybe I can just read it. My copy says - and of course I have the Martin's - my copy says that, "Where the accused refuses to plead and stand mute, that although a plea of not guilty is entered, the accused has never actually pleaded and therefore does not require leave to raise an objection to the indictment in the course of the trial." So, in a sense, considering I haven't really pleaded in the eyes of the Court, the opportunity, I believe, to reopen or re-examine or even have heard the pre-plea motions that I had filed, still exists. Now, the reason I raise this is that I believe this Court was misled back on November the 15th when the Crown told you in argument against a motion for a special defence of autrefois acquit, that he'd identified ten areas of gain, and, at that point, you rightly said, "Well, if there's evidence of such gain, autrefois acquit certainly doesn't apply because it's different from the 1989 case. Now, I believe in my last motion record - and I don't know if this file contains this motion record, which was to be heard today - there were some complaints about the Crown's failure to complete undertakings made during the pretrial. For instance, the undertaking to produce a witness list, and such witness list was not produced until Monday of this week, a paring down of 90 to 20. And then again it was pared down just yesterday, once more, and that was - so evidently that undertaking was not completed by the Crown and, in the affidavit to that record motion, I do point out what points in the pretrial transcript those undertakings were made, as well as the autrefois acquit motion where Mr. Marin did tell you he'd identified these ten sections of gain. Now, yesterday, during all the course of the evidence that was given - I mean, I have ten fingers and I didn't see one finger go up as to one example of an A Section gain, let alone ten examples of anything. Which therefore would have to belie the statement that the Crown had identified ten sections of gain when it used it as a defence against the autrefois acquit plea on November the 15th. Now, the reason I'm raising this now is that I just simply want to let Your Honour know that the autrefois acquit plea may still be within your realm of operations considering I technically haven't pleaded yet, as well as the special plea of issue estoppel, which is another one that may be considered before the plea is entered. And of course, if one wants to consider that the plea has been entered, we'll have to raise the issue of res judicata. THE COURT: Mr. Turmel, I don't want to cut you short, but rather than have you embark on a lengthy argument, I agree with you. At the time that your motion was denied, I think specifically I indicated that it was premature, and you don't need to satisfy me that you are still entitled to raise the special pleas if the facts fit the case. MR. TURMEL: Well, then... THE COURT: But in terms of the procedure and your right to raise those defences or special pleas, I think that's implicit in the decision that was made in November. MR. TURMEL: Okay, so at this stage, I just believe I have to prove or show Your Honour that there were no such ten alleged Section A gains, and I do - I have here nine cases, and I do believe Mr. Sagle has a case book with another eight or nine cases of - I mean, there are so many cases that we could share them and both be allowed to make these points - but I have here some of these cases, and these are the ones, my favorites, some of the case law, all dealing with Section A. And if we can just run through them, I've underlined the relevant portions for change, so you don't have to be told where to go. On page 291, you'll notice, in the middle of the page, "The real question involved in this submission, therefore, turns on whether or not the receipt by the club of monies for refreshments in the manner above set out, proves a keeping of the club premises for gain." Now, that's a pretty clear one. When Judge Fontana said, "No refreshments sold, was not kept for gain," I think that this judge here would've agreed that Judge Fontana was correct in that interpretation of Section A. If we move on to the next page, page 293, where it's underlined, it says, "...as to whether a place is kept for gain if, from the game, money is paid in payment for refreshments." That's considered kept for gain. And if one turns to the next page, page 294, down in the underlined area, it says, "In the .... case, a lunch counter, where patrons could buy meals, soft drinks, tobacco and cigars." And at the top of the next page, it says, "The Appellant therefore was properly convicted of keeper of a common gaming house kept for gain." So that case has several references to the fact that keeping a premises for gain or the gain derived out of operation of the premises have in this case been restricted to the sale of refreshments. And again, I'd point out that it's exactly the same as Judge Fontana found. Now, if we will move on to page eight - actually, I've also numbered the pages myself at the top so that you can just, instead of looking at the page for their thing.... It's very small. THE COURT: At the bottom, okay. MR. TURMEL: Yes, it's small, but... THE COURT: Page seven? MR. TURMEL: Page eight. The underlined area. Now, this is from Cherry and Long, another old famous case. I mean, these are old ones I looked for because I assumed that the intent of the law, 1924, that the intent of the law would've been established a long time ago, considering I've been charged with gaming house eight or nine times and I've never faced the A Section until this charge. Never before have I ever faced an A or been told in advance. Now, at the bottom you'll notice, underlined again, it says, "As to whether a place is kept for gain, if money is paid in payment for refreshments." So the same thing again: Refreshments. Now, if you move along to page 11, this is the James decision from 1903. I believe this is the granddaddy of virtually all the other A Section decisions because so many of them quote James. That's because it is rather clear. It's about the keeper of a cigar store. So on page 11, my enumeration, you have a statement, last few lines of that paragraph where it says, "Whether the profit made by the Defendant out of the sale of cigars to the players who frequented the place for the purpose of playing games of chance under circumstances set out render the Defendant liable as keeping a place for gain." Now, on the very next page, page 12, mine, 198 of theirs, at the very bottom, it points out the Crown's contentions. The Crown contended that the profit made out of the sale of cigars alone was sufficient to constitute a keeping for gain. So again, it's referring constantly to profit from sales. If you turn to page 13, mine, 199 on theirs, the very next page, you'll notice the underlined portion where the judge says, "Did the profit out of the sale of cigars render him liable as keeping a place for gain? The place in question was a room or place kept to which persons resorted for the purpose of playing games. Was it kept for gain?" Now, that's exactly the question we have here. My place was kept for the purpose of playing games, and the question is, "Was it kept for gain?" And if one turns to the next page, page 14, or 200 of their numbering, at the top it says, "It was an adjunct to his usual business of a cigar dealer. The profits of that business were increased by the sale of the goods in which he dealt. The question of what is keeping it for gain ought not to be embarrassed by the amount. The question for the jury is whether he keeps the place for gain, and they may properly be told that the increased profits of the business derive from the sale of the Defendant's goods to the persons who resort to his room for the purpose of play is some evidence of keeping it for gain." And you'll notice he's doing no playing here, running no games; just simply selling cigars to which the gamblers resort. So that's the James one. Now, if we'll go over to page 17 of my numbering, we have the case of Karam (?) Karen (?). And this was a case where the owner was charged, again under Section A, for operating a refreshment stand, and I don't want to go in this one because he was acquitted and I don't understand it. All I know is that refreshments was the charge. I usually don't like bringing up cases I don't agree with, even if it helps, but in this case, I simply want to point out that it was a sale on my page 19 where they raised the issue, "It was licensed to carry the business of a public hall and sell refreshments and cigarettes." So again we see that Section A deals with sales to the gamblers, gain from the operation of a place rather than gain from the operation of a game. Now, if we go on to page - and there are only 40 pages, so it's not going to be long - on to page 21. There we have the case of O'Meara, and this is the proprietor of a cigar store again. And of course they're complaining about the sale of cigars once more. And if we go to page 24 of my numbering, the O'Meara case, at the top, it says, "The only profits came from the sale of gum and, it being proved that the profit was made from the gum, the machine was kept for gain." So again we're dealing with profit. Now, of course, every one of these activities I've listed all, today, in this day and age, bear GST. These are all GST-able transactions, such that if you buy cigars or if you buy refreshments or you purchase any such things, today, under the recent laws, they must all bear GST. And so to have filed GST in my case would've been a reason to plead guilty, but since there has been no evidence of any GST-able transactions - and I'm saying that A deals with GST-able transactions - we can now step on to page 25, which is the case of Riley. Again, that's a case where they form a pool from the money staked to expend for refreshments. So again it's the keeper who is selling the refreshments to the gamblers. At the bottom of page 25, it says, "The real question involved in the submission therefore turns on whether or not the receipt by the club of monies for refreshments shown in the manner above set out proves the keeping of the club premises for gain." Not a word about gambling. It's always the sales to the gamblers that are treated under Section A. Now, of course, my purpose in adding these nine cases to the eight or nine Mr. Sagle has already developed is, I believe, to show that the score is going to be 18 to zero when we're through, because I don't believe the Crown's going to have any case law where Section A is outlined and it doesn't deal with refreshment, with some sort of sales. Now, if we move on to page 27 - things are moving quickly now - you'll notice at the bottom of my page 27, "While playing of cards was going on, yet meals were served..." And at the end, he was convicted of running a gaming house because meals were sold to the gamblers. So there is another case. On page 29, we have the case of R. v. Tatty (ph), and again the underlined portion shows that the accused sold sandwiches. And down at the bottom it says that the sale of refreshments constituted a keeping of the premises for gain. Now, it didn't say the game of blackjack or playing poker, or any other activity, constituted keeping the premises for gain, but that sales constitutes keeping the premises for gain. So that was the sale of sandwiches. Now, on 35, page 35, my page 35, down in the middle where it's underlined, it says, "The revenue from the fees charged the members to join, as well as revenue from the sale of refreshments and from the billiard table and cards, constitute a keeping of the premises for gain within the definition laid out in R. v. James." So again we have the revenue from sales and from rentals. So that is something that the house can do independent of whether there are card players there. On page 37 of the same decision, the underlined portion, "The question for the jury is whether he keeps the place for gain, and they may be properly told that the increased profits of the business derived from the sale of the Defendant's goods to the persons who resort to his room for the purpose of play is some evidence of keeping it for gain." So again, sales once more has been deemed evidence of an A Section gain. And finally, the very, very last page, a short little one, R. v. Wong, if you look down the little notation that's been underlined, this was the proprietor of a tobacco shop. That's the very last page of the kit, the Wong case. And the proprietor of a tobacco shop sold tobacco and consequently was presumed to have kept the place for gaming because of the profit from the sales. Now, those are the extra ones which I've raised now. I could probably cite off very quickly the names of the other cases that have been picked and which Mr. Sagle had prepared for his A Section argument. I point out that R. v. Saunders is another one that dealt with sales. The King v. Sawa (ph), another one that dealt with sales. (OFF-RECORD DISCUSSION) MR. TURMEL: Okay, refreshments for there. Lemaire, refreshments again. Karavasilis (ph), one of the famous ones. Again, that's another refreshments. And Irwin is another one. You know, they held a blackjack table in a tavern, and, of course, the keepers of a tavern were with an A gain because they were selling to the gamblers on the premises. Not charged with any Bs. At any rate, Your Honour, I think that the historical interpretation of how a premises are kept for gain has been well established. I would be very surprised if the Crown has any other conviction under A which did not deal with such refreshments. And on the basis that the Crown has not produced one single cited A Section gain in yesterday's testimony - I believe everything had to do with B possible allegations, everything always from the gain - and I'd like to point out a clear distinction between the B Sections and the A in that, if you'll notice, all the B Section allegations are basically transacted and are dealt with chips. So one might say that they are gains out of operations of the game with chips. Having the bank excluded gives you an advantage where you will win more chips; taking a rake-off, chips; charging a fee, chips; and of course, having an advantage the others don't, chips. But sales of cigarettes, hotel rooms, cigars, you know, sundries, other things, restaurant food, drinks, all GST-able, all done with cash as a prime requisite with a cash register. Now, none of the transactions that took place in my game dealt with a cash register, and it's been admitted by the Crown in pre-trial that I was not called upon to collect or remit any GST on any transaction, and, on that basis, that we do know that no evidence was presented. Certainly no ten instances of different gains were even alleged, despite the fact those undertakings were there and the Crown was prodded on numerous occasions to produce those ten different identifications. We've now ended up with the Crown's case closed and not one such identification. Even the one alleged at pre-trial has been even mentioned. So, other than trying to point out that had Officer Cleary, the investigating officer, been on the stand, his notes and his report were the only ones that determined that the cigarette machine was owned by an outside source. And, as that would seem to be the only logical inference of a Section A gain, the sale of cigarettes, from Officer Fotia yesterday, it seemed a little disconcerting that the chief investigator wasn't on the stand with his report, pointing out that that wasn't so, that I was not involved with the cigarettes. And if this does go to defence, Mr. Cleary will be our first witness on that point. But other than that one minor mention that Officer Fotia went and bought some cigarettes, which carry GST, out of a machine which was owned by an outside company that I had no stake in, nor any gain in, I don't believe that there were any inferences whatsoever of any GST-able cash-versus-chip-style actions going on. And on that basis, I believe - oh, well, my final point now, to bring in, is the fact that to be acquitted, to have a directed verdict of acquittal, in the case of my friend, Dave Booth, who ran a similar Turmel-style game and was raided, I could understand that as being equitable, and in the case of Dennis Mazerolle from Toronto, who was running a similar game and was raided, I would consider a directed verdict equitable there. But in my case, I have the Lennox decision and I have the Fontana decision; therefore, a mere directed verdict of acquittal just doesn't seem to be enough. I mean, them, they might be said to be acquitted, but in my case, I'm being acquitted again, and it's the "again" part of it that brings in the possibility of abuse of process and all these other issues: res judicata, issue estoppel. Now, to date, we haven't yet referred to Judge Fontana's decision, short of mentioning that he said "kept for gain" dealt with refreshment sales, like the rest of history, but yet, at this stage, I would like to open the possibility to you that I deserve more than a simple directed verdict of acquittal. I deserve one of these esoteric specialty pleas, which do apply, because I do have a previous acquittal on an identical situation of no evidence. And even though the Crown's allegation or misinterpretation that Judge Fontana had not dealt with Section A, and therefore Judge Lennox, in paraphrasing his decision, also didn't deal with Section A, and you yourself pointed out that they had. I believe that all the constituent elements necessary for one of the special pleas is there. My heart is most set on res - or on - and the reason is this: If I get an ordinary acquittal, I can be back in Court tomorrow and they could do the same process to me again, and it would be another six-month, eight-month, a year's delay until perhaps another acquittal. I'm not here for acquittal, Your Honour, I'm here for protection, and I think the only way I can get protection from this kind of abuse again is one of the specialty pleas, taking into account that this is not the first time I've faced this burden. It's the second. And both times there was no evidence. Though, again, I think other people in my boat do deserve directed verdicts of acquittal, I think that in my case one of the special pleas - you know, autrefois acquit would be the one that would really make my heart content, to think that, independent of time and place, a former acquittal, which gives on a right to do certain things, continues to give me that right, which will allow me to prevent the Crown from being able to move in and charge me again and keep me in the courts until a trial date. So on the grounds that the Crown did not identify those ten sections of gains, which did abort my autrefois acquit argument at the time, which you put off, I would simply move that one of these pre-plea motions - issue estoppel, autrefois acquit - and, if I have to, after the plea defence, which would be my res judicata - I would hope that the charges could be in some way ended on one of those more esoteric motions, and, on that note, Your Honour, I think I've finished my pitch on Section A, and I hope that Mr. Sagle doesn't have to go into greater depth on it for a directed verdict of acquittal argument if you agree that there is no evidence of any Section A gain. And of course, that would be best determined if the Crown could tell us the difference between a B gain and an A gain. And at this stage of the game, I don't think it's ever been discussed. And why the Crown thinks that gambling gains fit under A would be an interesting explanation for us all to have. Right now, I could only say that historically that's not true. If Mr. Marin were correct and any gain is a Section A gain, and why do you have the B sections, at all, permitting certain games.... And finally, I would make the argument that the winnings I made are under the protection of Judge Fontana's and Judge Lennox's rulings, which ruled that the way I won those monies was not a violation of the Criminal Code, and if they do not have any Section A gains to show, then I would contend that Judge Fontana and Judge Lennox's rulings, that the way I won my winnings were not construed as gains or illegal gains under the Code; I would ask therefore that whichever most applicable special plea applies be granted and the charges either quashed, dismissed or whatever the expression be, given whatever plea that I entered apply. Thank you. THE COURT: Thank you, Mr. Turmel. Do I understand that Mr. Sagle's going to be advancing an argument? MR. TURMEL: No, Mr. Sagle, I don't think, wanted to comment on the long shots, which he... MR. SAGLE: Your Honour, I support what he's saying, but actually, the arguments with respect to the "kept for gain," which he mentioned, indicated I would be going into longer if we have to do the directed verdict motion, or if we have to go beyond that, even, which I'll certainly be going into, but very much along the same lines, I'll also be reviewing the statute, the interpretation of the statute and case law in other areas as well, but I don't think that's necessary, quite frankly, to support Mr. Turmel's motion. I think he's done everything that could be done on that. THE COURT: All right, I have a couple of questions which I'll throw out before hearing from the Crown. The first question is: Was the argument raised before Judge Fontana of gain, or did the matter proceed under B? I'm aware that, in his decision, Judge Fontana made reference to the other sections being not applicable, but it may be significant whether the issue was raised before him or not. MR. TURMEL: It was. There was a demand for particulars and Judge Fontana ruled that, given the found-in was not a keeper and it was a much more simple - and we have the decision, by the way - and that it was a much more simple case for a found-in, that particulars were not necessary, so that the found-ins faced the whole gamut of charges, and it's for that reason that Judge Fontana dealt with all five, because no particulars had been picked. It was only in my case, for the keeper, did the Crown pick Section B(1) and B(4), and therein lies their confusion. It was my case where the judge restricted himself to B(1) and B(4), not the found-in's case, where the judge had an open field of all five, which he dealt with. THE COURT: Which is Booth. MR. TURMEL: Which is Booth, yes. MR. MARIN: Just on that point, Your Honour, I have a submission, just on that point, because certainly Mr. Turmel doesn't speak for the Crown on that issue. Just on the issue of what exactly happened with Judge Fontana, Your Honour, a motion of autrefois acquit, I didn't expect to have to face that this morning, so I don't have my case book, but the law, as I remember it, is that the Defence has to produce a record of exactly the evidence that was presented, the arguments made. Otherwise, how could he have been autrefois acquitted of this charge? It's impossible to tell, except Mr. Turmel's interpretation of the record. If one looks at page seven of Judge Fontana's decision, I suggest to you that from the decision of the case, it is obvious, or one could infer that it was not founded on A, and not only that, but that the judge did not direct his attention, his mind, to the A section. If one looks carefully at page seven, the second paragraph starting, "On the evidence," Your Honour. Do you have that? THE COURT: Yes. MR. MARIN: Okay, "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..." And I note "in this occasion," "...clearly does not fall into the first four categories." Perhaps we could just pause here. Let's go to the section, Section 197, Your Honour... THE COURT: Which includes A. MR. MARIN: Yes, but if one looks at Section 197, Your Honour, there is not four categories, but there are five categories, A being one. So the way Judge Fontana reads it, he obviously - because it wasn't specifically argued, I would suggest, Your Honour, is that he sort of lumps it together and he reads the "or" between the A and the B as being an end, as being conjunctive as opposed to disjunctive, and if one looks at the next line, he says, after saying it doesn't fit within the first four categories, he says, "A place kept for gain or for playing of games where the bank is kept by one or more but not all of the players..." So the implication seems to be that the Crown has to prove that it's a place kept for gain or for playing of games where the bank is kept by one or more but not all of the players. There seems to be an interpretation that A has to be read in as a precondition to the B applying. Then he continues, "Clearly, none of those first four criteria apply. If the operation on this occasion is to be caught, it must be caught with respect for, which I quote..." So again he's referring here to four. And then he reads the B(4), which obviously the issue in that particular trial. "...kept or used for purpose of playing games in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game." So that is the law as Judge Fontana sees it argued before him. Everything revolves around the four. The "kept for gain" portion of the section is overlooked as being distinct, disjunctive way to make out the offence. The A is a definition of one way that can stand on its own to make out the offence. And it's very important that there's an "or" there. And so, short of having the record, Your Honour, I can't accept Mr. Turmel's testimony on what happened at the trial because, quite clearly, the decision speaks for itself. I would suggest - and again, I wasn't at the trial, Your Honour, but by the substance of the decision, Judge Fontana does not refer to gains. The issue here wasn't the definition of what "gains" meant; the issue here was whether Mr. Turmel's rules of operation of the game circumvented, in a way, the B(4) in such a way as to lead to an acquittal or dismissal or directed verdict - I'm not sure what was the result of that decision - but in the release of Mr. Turmel. So it's my submission, Your Honour, that's it's apples and oranges both in terms of law and in terms of the evidence just by reading the decision of Judge Fontana, framed on the law as he saw it. MR. SAGLE: Your Honour, may I just say one thing? I almost feel this is unnecessary to say, but I guess it is because of what we've just heard. I find that to be an incredible reading of the words on that page. I find to say that basically he's only referring to the four categories when he names four and then refers to the fifth right at the bottom. I mean, it's almost as if we can't read. The question as to whether he keeps it disjunctively or not - he clearly says that it clearly does not fall into the first four categories. There are only five. THE COURT: The question I'm concerned with is not so much the grammar... MR. SAGLE: M'hm? THE COURT: ...but whether or not the issue of the A was raised as an issue at the trial. MR. SAGLE: Well, perhaps there might be something I could find on that. We may even have some of the transcripts here. MR. TURMEL: I do have the transcript where he does - excuse me - we do have the transcript here where Judge Fontana does dismiss an argument for particulars and then goes on to deal with all five by delineating the evidence. No sales, no rake- off, no fee, no other one. And next step, with his decision, he... THE COURT: Was there evidence before the Court of the sort of evidence which is before the Court today? MR. TURMEL: Exactly. The point is that the policeman got on the stand and said there was no evidence of any sales for refreshments. THE COURT: But Mr.... MR. MARIN: That's not the evidence. THE COURT: ...Mr. Marin is proceeding on the A, and he's arguing - or I anticipate he will argue - that the gain with which he seeks to bring himself within the definition under A is the gain from gambling. MR. TURMEL: That's right, I know. And why would you bother having B sections if that's true? If any gain at all was illegal under A, why bother with the Bs? THE COURT: But that's what we're... MR. TURMEL: That's what he's alleging, I understand. THE COURT: That's what the ultimate issue is going... MR. TURMEL: But Judge Fontana said it seems very clear: "No refreshment sales; did not keep for gain." I mean, step one, you look at the evidence. No refreshments, no rake-off, no fee, in order. Then he went, decision, clearly not kept for gain, no rake-off, no fees. THE COURT: I've read Judge Fontana's decision and what I'm concerned about is whether the conclusion by my brother judge is something which is based upon his findings with respect to the evidence or findings with respect to a lack of evidence. If there was no evidence on that point... MR. TURMEL: That's right. THE COURT: ...then, with respect, it would be my understanding that my brother judge would not have turned his mind or addressed the specific issue that we're talking about today. MR. TURMEL: Well, had there been such evidence, I'd have been convicted. So the fact that there was no evidence of a Section A crime then can't sort of preclude us from looking at his decision. He referred Section A to the sale of refreshments. That can be clearly argued, where he goes over the four things that he does have as facts. No refreshments, no rake-off, no fee. Then he gives his decision. Not kept for gain, no rake- off, no fee. So it's simple enough to match the evidence he looked at - no sale of refreshments - to the conclusion he came to, no gain out of the premises. It seems very clear, and, given the fact that there were no particulars in that case and he specifically -you can't get much clearer to say he did not keep the place for gain, even though he knew I was winning money. He even went and said in his decision, "It is not illegal to win money." Hence, I think Judge Fontana did a very good analysis of the issues and, to him, it was clear. If there's no sales or gain out of the operation of the premises, it seemed clear to him that Section A didn't apply. And I argue and submit that every other judge in every other case we've submitted here, that's the same thing. I would say that I would be taken aback and consider this a dilemma or a difficulty to overcome if the Crown could show one other instance in Canadian history when a non-commercial gain was charged under the A Sections. Or even where what is normally considered a B Section gain. Because it's illegal for me to profit indirectly out of the proceeds of a game, and if they're now saying that your proceeds out of that game are now A, well, why didn't you use the B? Because they couldn't. They said Fontana was right on the B. So the matching of Fontana's statements about evidence with his statements on ruling, I think, leaves us no choice but to conclude that he did examine it in detail and he came to the conclusion that the issue was so trivial - and when you consider I've been charged with gaming house eight or nine times and this is the first time it's ever been actually particularized as an A Section offence, I think the judge was absolutely correct in his decision because it was as trivial as he made it sound. No refreshments, not kept for gain: Out the door. And I see exactly the same thing happened here today. No refreshments, and now the Crown is stuck on the "kept for gain." So my point was, the Crown alleged absolutely no gains whatsoever short of B Section gains, which are winnings, and Judge Fontana already said the way I've won my money was legal. Now, if the Crown doesn't have anything different about the way I made money from the way Judge Fontana told me I can win money, well, it seems to me we've got a case where it's already been decided. These issues have been settled. John Turmel winning money at Turmel-style blackjack and playing poker, winning an odd tournament, or whatever, is not to be construed as against this section of the Criminal Code. So Judge Fontana had it virtually identically the same evidence. As a matter of fact, the only statement of true facts that's really well done is the one from '89, and you'll see they're all identical facts to this situation here. So, on the basis that he did state "not kept for gain," while at the same time stating that the evidence that was lacking for such a conviction, I think it's pretty clear that the question is as clear as Judge Fontana thought it was, and the Crown is left here with having picked the wrong section. And again, the wording of the section is important. "Kept for gain to which persons resort for the purpose of gambling." Now, tell me about a gain made out of a place to which people do not resort for the purpose of gambling. Say the purpose of dancing, or something else. All those gains are the ones that were normally convicted under all the case law that's been produced. You know, if you sold food, drinks, you had whatever charges, you know, all these kinds of things would be technically illegal the moment the game came. And the moment the game leaves, they're okay. So the wording - I mean, I hate to say it, you know, but this is down to a question of grammar. Section A, when you throw in "which is resorted to" and contemplate what it means by throwing in a "not," you realize that, whoa, these old judges in the past were correct. Why would we have a whole day's worth of testimony on the gambling when Section A doesn't need to prove it was an illegal game? All Section A has to prove is that there was gambling, which I admitted. So, in a nutshell, Your Honour, everything that came on yesterday had absolutely nothing to do with Section A. All of it had to do with Section B, the charges I've defended eight times in the past, and it sort of took me by surprise. But nevertheless, my argument is simply that Section A historically is gains from sales to customers where the price of the seller to the vendor is great than his costs. Mr. Sagle has that in some of his cases. Much more strong stuff coming. And again, I only ask the Crown produce one case, just one - I mean, it had 18 months, almost two years now, of study to do this - produce me just one case where A was alleged to come from gambling. And I'm not going to say I'd plead guilty - I'd still put up a fight - but I'd be very impressed, and so far I haven't been impressed. So, on the note that historically A has always been gains and Judge Fontana - because to him it was trivial - didn't spend a whole lot of time giving a lecture to the Crown on why "no sales" means "no gain." He was still was very explicit, precise, made statements, covered all sections well. Frankly, I was impressed by the judge and his decision, and I don't see how Mr. Marin can possibly successfully misinterpret it. So thank you very much. THE COURT: Mr. Turmel or Mr. Sagle, other than the reference in page seven of the transcript - I understand that you have a transcript of the proceeding... MR. SAGLE: Yes, but it's not actually the evidence given, or the questions; it's only the motion that was made in advance to have particulars. But I'll tell you what I do find - I understand what you're asking - is there anything else in here which would indicate that he considered the kind of gains that we're talking about, or that he's suggesting apply... THE COURT: Exactly. MR. SAGLE: I say two things to that, Your Honour: One is that clearly the Crown did try to present evidence which they thought would be successful under A, and I notice that on page four, Judge Fontana does indicate that "The evidence from the principal witness was that refreshments were available but there was no charge for them." There was a witness brought, and they were Crown witnesses because there were no Defence witnesses, and they did try and bring some evidence, and, of course, the judge had no doubt in his mind, arguments similar to that made here, that those are the kinds of things you have to look for when you're looking for a gain. It's interesting that he refers in this case to two other factors which one might indirectly realize that he is not dismissing the aspect of winning or losing, but that he does not take it as a serious question, in that he does indicate, as Mr. Turmel has already pointed out, that it is - let's see if I can find it - oh, on page 11, the end of that first paragraph, "The advantage that is derived to an individual by reason of his own skill in playing in the game in no way confers an unfair advantage as contemplated by the section." And I suggest to you that that means that if you are a skillful player, you are more likely to win. I mean, I think if he felt winning was illegal, he would not take the position that a person could have an advantage over other people in the game. That can only mean you're going to win. THE COURT: For one of the special pleas to apply, the Court has to be satisfied on evidence that there is the same issue before the Court, substantially the same parties, and what I'm asking is, is there something that you can direct me to to indicate that the Court heard evidence on the issue of gain and that that issue was addressed? MR. SAGLE: Well, I think I can clearly say it was addressed. THE COURT: Other than the reference in page seven, where His Honour basically goes through the section and indicates that these are not applicable, but from the judgment, I'm not able to conclude whether those sections are not applicable because there was no evidence on those issues, or because His Honour felt that this particular section did not apply to those facts. MR. SAGLE: Well, I guess I can't say much more than I have. The information is there. I do see that it does refer - he does take the time to particularly refer to it. Secondly, he does note the one aspect with respect to refreshments, which indicates that there was evidence put to the Court on that point again. The Crown did call evidence with respect to that, to the gain. THE COURT: But there's no indication that the purpose was to try to establish gain, other than to provide detail, as we heard yesterday, which, as Mr. Turmel has indicated, was not really necessary, as I understand, in large part, to the issue of gain. MR. SAGLE: I suppose, since we don't have anything that the judge actually says, I am, but I think it depends on how convinced you have to be. There are certainly indications in there... THE COURT: There has to be some evidence. MR. SAGLE: Yes. THE COURT: I think the law is quite clear. In order for any of the special pleas to be considered, there has to be some evidence to show that the issues have been considered and dealt with on a previous... MR. SAGLE: Okay, I appreciate what you're saying. I say two things: One is that the Crown refused to give particulars in that case. They went on all five charges. They went on that charge. THE COURT: Yes. MR. SAGLE: There is a case - there is some indication that he considered what would normally be evidence on that charge, according to all the case law that's been recited, and he specifically says that it doesn't apply in this case. He also refers to situations where he must understand that winning is a part of all this, because he has said a person can have an advantage in certain situations. An advantage in blackjack can only mean that you win. And so, I mean, there's enough in there, I think, to indicate that he had - he certainly - I think he didn't take it very seriously, but that he must have had in his mind, certainly, that somebody was winning and somebody could win, and he applied his mind actually to the correct question, and that was whether anything was being sold. He did not apply his mind very much to incorrect questions. I mean, it was sort of unnecessary. But I think you can take - at least it's in the wording of his judgment - that that was a consideration. I think a minor consideration, as it should have been. THE COURT: Thank you. Mr. Marin, I won't need to hear from you on this issue. Once again, Mr. Turmel, I have to dismiss the application for your extraordinary plea or special remedy which you're seeking. Quite simply, the plea, in my view, is not founded upon evidence which the Court has before it. MR. SAGLE: Your Honour, before - the next motion, I expect, will be for a directed verdict - before I do that, however, I would like to see a couple of the exhibits. I came in early this morning to see - I think you're reading them - and there's just something I want to make sure is there before I make that final decision. THE COURT: Mr. Clerk? Would you like to have some time to review those, Mr. Sagle? MR. SAGLE: Just five minutes, Your Honour. THE COURT: Very well. R E C E S S (11:05 a.m.) U P O N R E S U M I N G: (11:23 a.m.) CLERK OF THE COURT: This court is now reconvened; please be seated. THE COURT: Yes? MR. SAGLE: Yes, Your Honour, the Defence is not going to call any witnesses. We rest and we're prepared to hear submissions. THE COURT: Mr. Marin? MR. MARIN: Yes, Your Honour. Just as a general comment before I start, I have no difficulty starting first, obviously, as there's no Defence evidence, per se, called, but I'd simply, for the record - and I'd like Defence to be on notice - I certainly will not join Mr. Turmel, if he indicates in his submissions that, "Well, I never did this, I never did that." That would be testimony, and so if he intends on raising personal experiences which are not part of his record or the agreed statement of facts, or anywhere part of the record, that I'd simply take the position that the Court can't consider them. So I want him to be well aware of that before I start first. Because I don't want to be in a situation where the trial's reopened, witnesses called, and so on. So I just want him to be on notice about that. The second point of order before starting the actual submissions, Your Honour, is that in the course of making his arguments on the previous motion, Mr. Turmel made two allegations that I never responded to, but for the record, I would like the opportunity to briefly comment on them. The first is that somehow there were ten areas of gain that were never disclosed. I made my opening comment, Your Honour, at the beginning of the case, that the Crown was going to canvass various areas of evidence relevant to that determination. I'll be getting, in my submissions today, into actually 12 areas that I've identified as relevant to the determination of whether the place was kept for gain. There are 12 areas. First of all, the salaries of the employees; that's the number one. The number two is the average weekly earnings of the casino. The third element is the source of funds declaration. In dealing with the banks, various declarations as to the funds and the money flow were made that are part of the record. And the fourth element would be the Topaz lease. The fifth point is the actual casino revenues. The sixth one is the food expenditures for the casino employees. Seven is the promotions and various related costs made by the accused. Number eight is the public statement of the accused in Niagara Falls. Number nine is the cost of the bus transportation to bring people in from the Montreal area. Number ten is the Baxter lease, the lease for the Baxter Road location. Number 11 is the fact that players were required to cash in $200 in chips to be able to play. And finally, Your Honour, the 12th point, the projection of gains by industry standard being set at 50 percent. I'll elaborate on that later. It's the evidence of Ron Sheppard. All those areas were disclosed to the Defence. They were led during this trial. There was absolutely no surprises. The issue becomes a legal one as to whether Your Honour is entitled to consider them for the determination of gain or not, and that is the ultimate issue of this trial. That's the first comment. The second comment, the witness list, the Defence had willsays, original statements, whatnot, of every witness, I believe, whether they were called or not called. The paring down to 20 witnesses was done as a courtesy three days - he indicates three days - I thought it was more than that, but in any event, assuming it's only three days - three days prior to the beginning of the trial. It's not like new disclosure; it's things that he had before. And as Your Honour knows, the Crown has no obligation to disclose that. It's done as a courtesy on a routine basis, and giving three days notice of those that we were going to call is ample, in my submission to the Court. In any event, I find it interesting that Mr. Turmel adds in the same breath that he never was able to get particulars from the Crown prior to trial. In this case, he knew he faced an argument based on A. So I simply add that for the record, as he's talking about the Crown's alleged, you know, misbehavior, and so on, in this trial. MR. TURMEL: Your Honour, I never imputed that Mr. Marin did this; I meant other trials in my life that they never raised Section A. So I didn't mean to say Mr. Marin lied. He did say Section A at pretrial. I'm saying in previous trials of mine. MR. MARIN: So those are my opening comments, Your Honour. Now, dealing with the actual case at bar, Your Honour, the submissions I intend to make firstly is on the definition that one is to attach to the word "gain." Secondly is how the Crown has discharged its onus of proving that gain. Now, the argument of the accused on this case, Your Honour, is the following: The accused indicates that Section 197(a) only captures such things as the sale of cigarettes, food, the leasing of parking lots. And if I may just pause here, although one officer indicates that he bought cigarettes on the premises, it's said - and I'm not relying on that at all; it's part of the record; I can't erase it or do anything with it; it's there, but I'm not relying on that, so Mr. Turmel should be reassured by that. So the issue is whether the section deals only with those peripheral gains or whether it deals with the actual game itself, the gains arising from the game. It would be the Crown's submission that Mr. Turmel's argument in this respect is flawed, as the whole object of the gaming provisions is to prohibit individuals from operating such businesses. Let's look at the ramifications, the logical ramifications of the position taken by the Defence. It would mean that the law would be completely powerless to deal with anybody who runs the business of gaming, such as Mr. Turmel, but as soon as someone would charge for parking - suppose Mr. Turmel was charging for parking - then, aha, that person would be committing a criminal offence. That is a legal absurdity. That's the argument he wants you to buy. Now, for him to sell that argument to the Court, in my respectful submission, the Court would have to be convinced that that's the object of legislation. Is the object of legislation to regulate cigarettes on the premises? Is the object of the legislation to regulate parking or how chips are sold? The first area Your Honour has to look at is where is it situated in the Criminal Code? Is it on the regulation of chips and parking lots? Is it part of the mischief provisions? Is it part of the - I don't know what other provisions it could fall under, but it's under Part Seven, Disorderly Houses, Gaming and Betting. That's the section we're dealing with. Let's look at the words used by the legislator: "Kept for gain" is the offence. To have a keeper of a place keeping it for gain. Now, the use of the word is not an oversight. You can't say, "Well, it's vague." And I anticipate that my friend will argue that, that it's vague and that the strict interpretation of the criminal law requires, demands, that the benefit goes to the accused. In my respectful submission, Your Honour, there is absolutely nothing vague with the word "gain." Gain means gain. The Code used words such as "profit," and "net revenue." Perhaps we'd be arguing what it means. Perhaps we'd be arguing, "Well, does net revenue include these losses?" And "Does profit mean prior tax, after tax, GST?" That's not what we're dealing with here. Gain is the word used and it's purposefully broad because that's the intention of the legislator. I submitted a case book to Your Honour and to Defence, Tab Nine. Tab Nine, Your Honour, is the definition of "gain" from the Black's Law Dictionary. Now, let's see if this is vague: "Gain: Profits, winnings; increment of value; difference between receipts and expenditures; pecuniary gain." In my respectful submission, the second word that's there is "winnings. "If you're running a profitable organization at the place where gaming is occurring, you are gaining. Now, the rule that you have to give a strict interpretation to criminal statutes, it's not disputed by the Crown. It's a well- known principle. But that doesn't mean, Your Honour, that we can take a straightforward word and stretch it out of proportion to have a totally absurd, unreasonable interpretation of the law. I draw Your Honour's attention to case number ten, under Tab Ten in the Crown's case book, The king v. Ley, 20 C.C.C., 170, and this is a good illustration, Your Honour, of how someone with a little ingenuity can argue the most absurd interpretation of the law, but where the Court simply will not use the example of the strict interpretation to rubber-stamp absurdities. This case, Your Honour, I'll just point out the facts very briefly. The person is charged with speeding in 1912. Back then, speeding was defined as "A greater speed than one mile in four minutes." So it was argued by the Defence that you have to travel at least a mile to be speeding. Aha, it's vague. Let the absurdity prevail. The Court could've shrugged its responsibility and simply rubber-stamped the absurdity. But no, at page 173 of the decision, Your Honour, the Court states, "My interpretation is in consonance with the spirit of the act, which undoubtedly is to give others than motorists some rights on the highways, and it leads to no anomaly or incongruity that the very opposite of this would result from the adaptation of the Defendant's view is easily capable of illustration. Under it, a man who drives his car 1,759 yards in a minute, a feat which, by my observation of motoring in Calgary is, I fancy, by no means an impossible performance, and then stops it and proceeds no further would not be, under the Defendant's interpretation of it, guilty of a breach of this section because the distance travelled by him falls short of a mile, even though by a yard." The Supreme Court of Canada in Pare, the decision under Tab 11, Your Honour, has made similar comments. Under Tab 11, the second sentence from the headnote, Your Honour, "The doctrine of strict construction of criminal statutes requiring the Court to adopt the interpretation most favourable to the accused does not require adoption of an interpretation which would not be reasonable, given the scheme and purpose of the legislation." Out of the decision itself, Your Honour, at page 107, and it would be the third paragraph on the right column, last sentence, "An interpretation of Section 214(5) that runs contrary to common sense is not to be adopted if a reasonable alternative is available." So it would be my submission, Your Honour, that in this case a reasonable alternative is available: The one which calls for common sense to be applied, in my respectful submission. The case of Banton (ph), which was part of Mr. Turmel's case book, I also put in my case book, Your Honour. It would be under Tab Eight. Mr. Turmel used the case, Your Honour, as an illustration that an conviction in this case was not out of gains for the game, but the case also stands for authority as to what the gains are. This is a Supreme Court of Canada decision, Your Honour, and I would refer Your Honour to the last page, 297, of that decision. Page 297, the penultimate paragraph. There is an obiter, Supreme Court of Canada, "No doubt, where it is shown that gain is the real object of the keeping of the place, you have a case under Section A." So there we have it. The real object of the keeping of the place. What is Mr. Turmel's real object in the keeping of the place? It's for gain. Now, much has been said by the Defence, Your Honour, in the course of this trial, about the Section B. It's said by Mr. Turmel and his lawyer, "Well, why do you have the B Section? The B Section deals with the gain." Well, in my respectful submission, Your Honour, the B Section is there to capture those who make money in other ways than by making it directly. There's no doubt that if the keeper of the place makes the money directly, like Mr. Turmel does it, he's running afoul of the law directly. There's no way of getting around it. So case law, as seen through the history, various gamblers who've used their ingenuity to escape the criminal liability. So, when you look at Section B, it's not surprising that the legislator would make it easier for the Crown to prove "kept for gain" by providing four ways in which the definition of the offence is broadened. It's broadened by saying, "All right, if you're the bank and it's kept by one or more, but not all, players, you're presumed to fall within the definition of common gaming house." That's double i. "If all or portions of the bets or proceeds from the game is paid directly or indirectly to the keeper of the place, then...capture liability as well." Three, "If a fee is charged," and, four, "...in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game." Those, Your Honour, are simply ancillary ways to capture the liability of the accused. A very important word between Subsection A and B. That word is "or." Providing five distinct, disjunctive ways of proving the offence. One should not be surprised, Your Honour, to see these sections because one can see, from a practical perspective, how difficult it would be for the Crown to prove "kept for gain." There's no doubt it would be difficult. This case wasn't difficult, in my submission, because of the admissions of the accused, the very thorough investigation had the admissions not been made. But supposing somebody, as keeper of the game, keeper of the place where games are played, wanted to put the Crown to the strict proof of the "kept for gain" portion of the offence, and supposing that accused wanted to prevent the Crown from getting to that evidence, it would be easy for an accused to conceal that evidence of gain, to open a whole series of bank accounts, spread across, to try to launder the money. It would be easy to try to get away from the authorities. So it simply provides that if you fall under B(i)(ii)(iii)(iv), you'll still be guilty. The argument I make, Your Honour, is supported by the presumption, Section 198(1)(b), which states, "The proceedings under this part...evidence of place was found to be equipped with gaming equipment or any device for concealing, removing or destroying gaming equipment is, in the absence of any evidence to the contrary, proof that the place is a common gaming house or common betting house, as the case may be." So supposing you look at the evidence that we have in this trial, Your Honour. You have evidence that there was a place equipped with gaming equipment; you have the evidence of Sergeant Fotia. You have various admissions that Mr. Turmel is the keeper, and so on. So frankly, I could sit down and let Mr. Turmel prove that he wasn't operating it for the purpose of gain. That is a very strong presumption. Why is it there? It's because the legislator wants to facilitate proving the offence. The legislator wants to facilitate the Crown's onus of proving that the place is a common gaming house. Now, needless to say, Your Honour, the Crown is not relying on the presumption in this case. I want to make that clear. Except when Your Honour looks at the object of the legislation, as Your Honour must do in giving a definition to the words, "kept for gain," in my respectful submission. That is a consideration, that is the scheme, that is the structure of the legislation. It's to keep common gaming houses from cropping, so that there's no business keeping a common gaming house for gain. Next, Your Honour, the next portion of my submissions on the case law dealing with the issue of the definition of the A section. You've heard Mr. Turmel, Your Honour, say that, "Well, there's not a case that exists that'll say that 'kept for gain' means what the Crown says it means." I'll address that in a moment, because, in my submission, there exists such case law. All right, but I put it to Mr. Turmel, there's not one case that supports his proposition. What Mr. Turmel's done, basically, is give you case law and say, "Well, historically, this is how the Crown prosecutes the A section." That's what he's done. He hasn't said - and I note one other case he reads: The issues are whether such gains, as he has referred to in his case law, fall within the Section A. Okay. It's not whether the gains mean the Section A, but if it falls within the Section A. There's a difference, because if I allege that a gain falls within Section A, it's not limited to those types of gains, but it may include them. You've heard much testimony, Your Honour, on Judge Fontana's decision in 1989. I'd like to draw to your attention another decision, R. v. Turmel, in 1991, in Hull, Tab Five. Unfortunately, it's only reproduced in the French version. I know Mr. Turmel has his own translation that he puts usually on the left side of the page, but I put in the French version, Your Honour. In that particular case, if I may refer Your Honour to page 42, second paragraph. The facts, as seen by the judge, are towards line 13. (READS QUOTATION IN FRENCH) So the Court states that it's a commercial operation, a place where its ultimate and only purpose is to run a casino, which is done in a professional fashion and according to the rules of the trade, which we have here. That's the evidence before the Court. At page 45 of that decision, Your Honour, at line 16. The Court is commenting on a expert witness. (READS QUOTATION IN FRENCH) So to give a synopsis of what the judge is saying here, Your Honour, he says the casinos are there to make money. That's what the expert witness' testimony was. But that's simply common sense, is what the judge indicates. And secondly, that he makes money at blackjack because the structure of the game is to the effect that there's an edge in favour of the bank. Now, two pages from that, Your Honour, page 47, or 49 of the decision, there's an "A" about a third of the way down the page. That's the same A that we're dealing with here. So the Court reprints the 197(a) of common gaming house and then says, (READS QUOTATION IN FRENCH) So the Court specifically addresses Subsection Ad and says, "Here's the issue: are we dealing with a place kept for gain?" That's the issue. Next question the judge asks is, (READS QUOTATION IN FRENCH) Which is, all the evidence points to one direction: The people went there to play games. The judge also comments on the sign in the casino that stated, "No play, no stay." So in the consideration under Section A, the Court considers, what's the ultimate purpose of the place? Then, in trying to establish if the operation is of a commercial nature, the Court looks at various criteria. The next page, Your Honour, at line 12, the Court points out the following criteria: (READS QUOTATION IN FRENCH) So the Court looks at the fixed costs, rent, electricity, telephone, general costs of operating the business, including publicity, the salary of the 22 employees, and he says, (READS QUOTATION IN FRENCH) Or his own ultimate profits from the business. (READS QUOTATION IN FRENCH) So what the Court says is, we have here a place kept solely for the purpose of playing games where there is a $15,000 fixed cost per month and serves no other purpose but to play blackjack and poker. So far, Your Honour, it's on all fours with this case. We're dealing with A. Here's the evidence before the Court. We are dealing with A in this case. Here are the elements before the Court. The bottom of page 48, line 26, same page, but line 26, (READS QUOTATION IN FRENCH) Okay, so let's look at that. The Court finds that Mr. Turmel expected considerable gain out of the commercial operation of the gaming facility in that the financial statements supported his expectation, and finds that, over two months, made $60,000. Again, Your Honour, on all fours with this case. And then the Court goes on to talk about the enormous sort of start-up costs for the business, and so on, and then concludes at line 13, the final finding of the Court at line 13, on the A section, (READS QUOTATION IN FRENCH) He says that it is clear that the place was kept for gain. So Mr. Turmel indicates, Your Honour, that there's not a case on the face of the earth that deals with this. In my submission, there is. A 1991 decision. Now, the Court also finds, line 15, analyzes the implications for B as well, and also finds that the establishment offends the B section. All right, so the accused is found guilty on the basis of both definitions and is acquitted of betting, the judge having a reasonable doubt as to the betting charges. So that obviously is not before the Court in this case. So in my submission here, Your Honour, the Crown's case is a replica as it was in 1991 in Hull. And certainly the Court had no difficulties in finding it came within the definition under A. In my respectful submission, the same would apply today. The second case, R. v. Dearborn, October 1993. Mr. Dearborn operates a casino in Toronto. It's under Tab Four. Mr. Dearborn started his trial represented by Alan Gold in Toronto and, in the midst of the trial, changed his plea to guilty. Page three, under Tab Four, Your Honour, the Crown indicates two points: That the Crown is alleging that the A and the B sections have been infringed. Now, the evidence under the A, Your Honour, is the same as the evidence called in this trial under the A. Now, there's no doubt that the issue is not being tried, arguments are not being presented on both sides, but certainly you have an admission that is accepted, the facts are before the Court, accepted by the Court, and I would say that Mr. Gold is a well- known Defence counsel who certainly should be - well, Your Honour, I keep getting comments by Mr. Turmel and it's interfering with my submissions. I allowed him this morning, without any interference from me, to make his submissions. I would ask the only courtesy from him - he will have a chance to respond. MR. TURMEL: Well, I excuse myself, Your Honour. That is the first noise I've made this morning, and I excuse myself. MR. MARIN: I should point out, Your Honour, that the facts as I read them are a little different from this case in that, at page five, it is indicated that there was a payment made to the employee of the house of $250 in the form of a chip. So a kind of a rake that is not present in this case, but in my submission, the rake is not a valid - it makes no difference under Section A. The rake would only be a consideration under B. Yes, I said $250. I meant $2.50, Your Honour. It was a $2.50 rake, which was not present here, but it's not relevant. Finally, the anticipated evidence of Ron Sheppard is also quoted in the decision, and obviously the Crown there, I presume, was reading it from a willsay, and it indicates 5.9 percent, which in itself was disputed at the time. So those elements are different, but if Your Honour looks closely at the evidence adduced by the Crown under the A section, it is the evidence adduced by this Crown in this case in the trial of Mr. Turmel. So you have before the Court, Your Honour, two findings of guilt by the Court under Section A that deal with precisely the earnings of the keeper of the house from the game. In case, Your Honour, there is an argument that's made concerning the disjunctive nature of the decision, I've put under Tab One a decision by the Supreme Court of Canada, Dipietro, page 107, Tab One. This case was also a decision that went under the "kept for gain" provision. Page 107, the first few paragraphs: The then Section 179(1), the constituent elements in Defence are, (1) keeping a place, (2) for gain, (3) resorted to by persons for the purpose of playing games, (4) which games are games of chance and mixed chance and skill. The first two elements of Defence are present, as the appellants admitted that they are the providers of billiards and they profit from this undertaking. Now, what I'd like to to next, Your Honour, is to examine some of the decisions that I believe were either produced by Mr. Turmel this morning, or referred to, for the purpose of submitting to the Court that those cases only stand for the proposition, Your Honour, that they are merely illustrations of ways in which gain might manifest itself under Section A. There is not one case that will stand for the proposition, Your Honour, that "gain" means gain outside of the games. And in fact, the courts, in analyzing the "kept for gain" words in the section, provide important indicia to courts as to how to interpret those words. The James decision under Tab Two, quoted by Mr. Turmel this morning, page 199, Your Honour, the last large paragraph on that page, the second line, "Was it kept by him for gain? The act does not define the word or limit its meaning..." Okay, I pause there, Your Honour. "...to gain derived from the rental room or a share of or interest in the stakes played for. In this respect, the section is very different from the Betting Act." Next paragraph, "'Gain' is that which is acquired and comes as a benefit, profit or advantage, and it may be derived indirectly as well as directly." The Court here, Your Honour, is merely saying, yes, this Mr. James kept a room, was the keeper of a room, supplying refreshments and cigars to the players. But the Court is not saying, "Well, that's what A means." The Court, rather, is saying that that is indirect gain but it's still captured. So surely, when the Court defines "kept for gain" the way it has, it would encompass a situation such as the one that's before the Court. It's merely saying that indirect gain is gain still. It's not saying that indirect gain is what the A captures. The next decision, Your Honour, under Tab Three, Karavasilis, which was again referred to by Mr. Turmel this morning, page 535. In this case, Your Honour, the Ontario Court of Appeal was determining how to establish the meaning of "kept for gain." One of the things that the courts have to look at, in my respectful submission, Your Honour, if we look at page 535, that what the court is preoccupied with is, is it run like a business? Is it run to generate profit? If it is, it's kept for gain, whether you sell stamps, parking spots, cigarettes, chips. Page 535, I quote from the second paragraph, "While the evidence could well have been developed in greater detail, it appears to be incontrovertible that the Appellant was carrying on business for gain on the premises, that it is a reasonable inference that if the Appellant had not made the arrangements which he did respecting the facilities for the playing..." And I'll jump the parentheses which is of no importance to us, "...this business would have suffered. He owned the stock, the assets, he leased the premises and paid the rent with his own money. Mr. North fairly conceded that it was a reasonable inference, from the evidence, that the rent was paid from his own pocket. The club paid him no salary. While the fees were entirely to the support of soccer, the proceeds of the refreshments sales belonged to the Appellant. In this respect, those cases concerned with bona fide social clubs where sales proceeds belong to the club are distinguishable in the decision of this court in Tatty as directly on point." So the Court is looking here, Your Honour, at whether it looks like a business. All right. The premises is leased. Who owned the assets? That type of evidence. There's no doubt that Mr. Turmel does not operate his business as a good will gesture to the community or as a charitable organization. He's in the business of making money. He said it through submissions and comments through the course of this trial. He was in Niagara Falls, claiming how much money he was making. It's clear that he's in the business to make money. He doesn't consider it an offence, but he's there to make money. The case of Karavasilis applies when there's a grey zone, so this is what we look at. Your Honour has evidence on all those grounds to apply to this case, or along those lines indirectly, as far as the lease goes, and the expenditures and the fact that it was run like a professional business. I've already referred to the obiter in Banton (ph). I would simply reiterate, in the context of these particular submissions, that the obiter of the Supreme Court of Canada that's directly on point, that if the real object of keeping the place is for gain, the case is under Section A. They don't say outside the gain. The Crown, Your Honour, has gone to quite some extent, both during the investigation and during the trial, to come up with concrete numbers as to what the assets were, what is the amount of profit generated, what are the expenditures. Your Honour has heard from expert witnesses talking about the odds of the game. Your Honour has evidence in the form of an exhibit that I'll be referring to later, in terms of how much revenue was generated. But all of this, Your Honour, is by an abundance of caution, because it would be my respectful submission that it's superfluous to the charges given the state of the law as it now stands. The law wants to simply know, is it carrying on a business. In the case of Fong(ph) at Tab Six, it's an old decision, but there's now also a more recent case that picks up the same principle. Under Tab Six, about a little more than halfway through the right column, towards the word "judgment," "The case which I have now to consider is not such a strong case against the accused, but I am forced to the conclusion that Ley would not have allowed these men to stay in the room which they were using for the purpose of gambling unless he expected some gain to result from it." So the offence is made out. "Kept for gain" not only applies when there are actual profits, revenues, earnings, benefits, but also applies when it's being run for the expectation of gain. There is also, in support of that proposition, Your Honour, the case of Lefrancois under Tab Seven at page 384, Your Honour. Again, it's a decision right on point, "kept for gain" under Section A. "First, it is enough that the room was kept for the purpose of gain, and it does not appear to me to be necessary that, in the end, there was a gain. The deficit incurred by a common gaming house does not absolve its owner of the offence committed. In addition, the burden is on the Appellant and not on the Crown to produce evidence that the room was not kept for the purpose of financial gain, or, according to the theory of the Appellant, that he effectively received no gain." The Court said in R. v. Disierro(ph), "The presumption relieves the Crown from proving the onus of the definition of "common gaming house." These other elements are then presumed proven in the absence of evidence to contrary, either by the Crown or Defence. The accused must be found guilty." So again, Your Honour, the issue here is not the actual gain, but it is the purpose of gain. And certainly the evidence we led in this case - because it was available - is very compelling evidence of gain, but evidence which, to a large extent, is not necessary to prove the commission of the offence. I was going to shift to another area, but perhaps now is a good time to recess for lunch. THE COURT: How much longer to you anticipate you'll be? MR. MARIN: Well, I've finished, Your Honour, my submissions on the interpretation of "kept for gain," and the second part will be the evidence of gain. I'll be leading Your Honour through some of the highlights of the evidence that was filed, and so it's a completely different line of thought, so I'm not sure exactly how long I would be, but I presume that it would certainly be a good 20 to 30 minutes on that final point. THE COURT: Would you like to have some time to... MR. MARIN: I'd like a break if it's being offered, because I don't expect to finish before quarter to one if I do start. THE COURT: All right, from the Defence side, how long to you anticipate you'll be in terms of your submissions? MR. SAGLE: I expect, Your Honour, that I'll be three-quarters of an hour, and Mr. Turmel may have some comments, as well, so maybe an hour and a half, two hours, before we're done. THE COURT: So we're likely to conclude the argument today, then. MR. SAGLE: Probably. THE COURT: All right, then, we'll recess until quarter to two. R E C E S S (12:14 p.m.) U P O N R E S U M I N G: (1:54 p.m.) CLERK OF THE COURT: Court is now reconvened; please be seated. THE COURT: Mr. Marin? MR. MARIN: Thank you, Your Honour. All right, Your Honour, so the second part of the Crown's submissions..... I had covered, Your Honour, the submission as to what "gain" is in Section 197. And really, the factors that - the bottom line is whether the place was run with an expectation of profit or gain. And to a larger extent, the actual gains are really secondary. So looking at the criteria given by the various courts that I quoted earlier, the case of Karavasilis, for example, where the Court of Appeal of Ontario asks whether there's a reasonable inference that if the accused had not taken the measures he did, the place would've suffered, and looks at the issues of assets, leases, expenditures, whether the place was generally run like a business, it would be my respectful submission to the Court, Your Honour, that it was in fact run like a professional business. If one looks, for example, on the expenditure side, the evidence before the Court is to the effect that the establishment on Baxter Road was leased during the relevant time period at a cost of $13,750. And as well, Your Honour, the St. Laurent premises were leased for $2,500 a week, and, for the nine months it operated, it comes up to $90,000. That's $2,500 a week times four, for nine months, so $90,000 for the nine- month period it operated. As well, Your Honour has before the Court a synopsis or a distillation of spread sheets that were held by the casino, by Mr. Turmel's casino, and Your Honour, the evidence on that spread sheet, Exhibit 18, it would be, is to the effect that considerable expenses were made to ensure that the business would operate for gain, creating an expectation of benefit or profit. Your Honour has heard, for example, that the evidence before the Court is that there was, for example, promotional costs of close to $27,000 for the 18-day period. This is all calculated from the 18-day period that the spread sheets were produced. The food expenses of $5,800, or a little over that. And of course, for the 18 days, a net profit of $137,396. And of course, Your Honour has heard, like any entrepreneur who wants his business to flourish, he was creating good will, he was in Niagara Falls, as Your Honour has heard evidence of, to promote his casino as a money-making venture which would create jobs and opportunities in the area. Your Honour also has evidence before the Court in the form of witness statements from Lily and Lester Percs. Those two individuals, Your Honour, operate a bus between Montreal and the St. Laurent casino and, at least on a weekly basis - at times a bi-weekly basis - brought busloads of people from Montreal to come and spend their money wagering at the Casino Turmel on St. Laurent, and Mr. Turmel paid $517 per trip and $20 per head to bring these people in. It's estimated, during the relevant time periods, that over $25,000 was spent to bring in those potential customers. Your Honour also has evidence in the form of a report by Penny Cookson, who is a forensic accountant with Peate Marwick Thorne, and the conclusions of her report out of the analysis of the various banking records that she examined are the following: That in terms of expenditures, that up to 100 employees at any one time were hired and paid a fixed salary plus tips, and that the average weekly salaries for the employees, calculated from the records, came to $29,214.27, and that the wages, between the 25th of April, 1993, till the 11th of July, 1993, were in excess of $350,000. So on the expenditure side, you have all these costs, employee costs, bringing-customers costs, promotion costs, food costs, all these expenditures to attract business. We've heard it from the witness, Ron Sheppard, that attracting business for a casino is crucial. It's crucial for any business, but it is a trademark of the industry that you offer free food and free drink or a variant of that to your potential customers. And of course, being the professional establishment that Casino Turmel was, it followed the industry norms, with an expectation that it would attract people, people would come and bet and wager money, and that ultimately it created an expectation of profit. Apart from these expenditures, Your Honour, the Crown also has proven that there was actual gain out of this operation. To refer back to Penny Cookson's findings, Your Honour, out of her analysis of the 18-day period, she came to the conclusion that the casino weekly earnings were in excess of $53,000. Now, the time frame, Your Honour, on the information covers approximately 64 weeks. Now, assuming a conservative figure, bring it down from $53,000 to $50,000 for 64 weeks, would produce over $3,000,000 in gross earnings or revenue. These are the gains that we're talking about. Actual gains. The witness, Ron Sheppard, also testified, Your Honour, that even taking into account all the circumstances, the options, whatnot, that there is always an edge in favour of the house. So the structure of the game, the fact that the player must play before the house, and the low skill of the average player creates a negative expectation. The whole scheme, the whole structure of a casino is built upon the expectation of gaining for the house. We have actual numbers to deal with in terms of Mr. Turmel's operation. But nonetheless, the whole idea of a casino is to make money. It's like having a money making machine. The judge in the Turmel decision in 1991 concluded that it is an issue of common sense, the Crown then brought an expert to provide that opinion because of the questions of structure, knowledge, and so on, and Your Honour was privy to the same evidence during this trial. Finally, Your Honour, it is the Crown's submission that had the accused not had a reasonable expectation of profit from the operations of a casino, the accused would not have taken out all of the measures and all the expenditures that he did to ensure that it flourished. In my respectful submission, it is obvious that it did flourish. So to conclude, Your Honour, the Crown's position in this respect is that, first of all, the "kept for gain" must be given a common-sense approach based on the object and structure of the Code gaming provisions, and that it does not help the Defence to pretend that there's an artificial barrier in that there has to be a strict interpretation, because in the Crown's respectful submission, the word "gain" is not a vague word. It is purposefully broad. It's purposefully common-sense. It refers to earnings, it refers to profit, it refers to benefits. So if Your Honour accepts that as being the interpretation of the expression "kept for gain," then, in my respectful submission, coupled with the case law that interprets it as whenever there is a reasonable expectation of profit, that that was present here, it was present and obvious by the numerous expenditures, and was also present by the fact that the Crown has adduced evidence of substantial gain. So it's the Crown's submission that, based on the evidence and the law, that the accused should be found guilty of the offence. THE COURT: Thank you. MR. MARIN: Just two comments, Your Honour, before I sit down. I did say originally this morning that there was a $200 minimum to get into the game. That was poker, not blackjack, and so I stand corrected on that aspect, not that much turns around it, but I wanted to correct the record on that. And the second point is that in the course of the testimony of a witness yesterday, there was an exhibit that was referred to called "Casino Turmel Blackjack Procedures," and it was referred to, commented on, and so on, and it should have been entered as an exhibit then, and I propose to enter it to complete the record at this stage. CLERK OF THE COURT: Exhibit 19, Your Honour. THE COURT: There was no agreement at that time, that I recall, with respect to that document being entered as an exhibit. Was it intended that the parties were in agreement as far as that? MR. MARIN: I was not under that impression, Your Honour. If it's contrary, I stand corrected, but I thought it was by oversight. I don't think that I actually... THE COURT: This was the document that was shown to Mr. Sheppard... MR. MARIN: Yes. THE COURT: ...in his examination in-chief, and he'd reviewed the document. MR. MARIN: That's correct. I'm in Your Honour's hands. Nothing much turns around it, but because we referred to it as part of the record, and it's part of the seizures, and there's no issue on that, that I figure I might as well complete the record, but I'm in Your Honour's hands on that. THE COURT: What's the position of Defence? MR. SAGLE: Your Honour, I don't think, since we've made so many admissions already, that one more is going to make much difference. THE COURT: Okay, in a sense, it's a two-stage process. For what purpose is it being entered as an exhibit, or is it being entered as an exhibit for any purpose other than having been referred to by Mr. Sheppard? MR. MARIN: That's precisely the point, Your Honour. Just to complete the record of Mr. Sheppard's testimony. It's not being entered for any other purpose. THE COURT: All right, it will be entered as an exhibit. EXHIBIT NUMBER 19: Casino Turmel blackjack procedures. - Produced and marked. MR. SAGLE: If I might have clarification with respect to something Mr. Marin mentioned concerning the $200 to get into a poker game. THE COURT: Yes? MR. SAGLE: I understand that that is not money you pay to anybody; you just had to have $200... MR. MARIN: That's correct. MR. SAGLE: ...and it wasn't a fee of any kind. MR. MARIN: That's correct. Absolutely. THE COURT: Thank you. MR. SAGLE: Your Honour, the way I intend to approach this, I am going to start off in a moment dealing with the matters the Crown has raised, as opposed to my own. I want to do that while it's fresh in my mind and fresh in your mind as well. But I would like to remind the Court that when I began my opening statement yesterday, I made a point that I hoped you would keep in mind during the time you heard the evidence, and that was that gaming is not illegal, gambling is not illegal. And actually, since my friend has made so much ado about a business, that the business of gaming is not illegal. And I do refer to Section 202(e) of the Criminal Code -202(1)(e) - on page 194 of my Code. THE COURT: Yes? MR. SAGLE: And I do note that there are specific provisions dealing with people who engage in bookmaking, pool selling, or in the business or occupation of betting. And I just point that out, that the business of betting has been dealt with, but the business of gaming has been left out of these sections. And of course, what we are saying is that we are not denying there's a business. It's a business of gaming. Now, I want to basically look at some of the points the Crown has made, and I've made a few notes. The first thing, I have no trouble with; we're in agreement, I think, that the main legal issue that we're trying to determine here is what is the meaning of "gain" in Section A. What is a place kept for gain? My friend has made some comments with what he supposes the intent of the legislature was. I should point out that the legislators who passed that first section happened to be in an 1892 Criminal Code, and so I don't imagine that there's very much that either of us can say with respect to what their real intent was. I do note that, in a case that my friend has cited, the Dipietro case - and, Your Honour, I have two case books, one for yourself and one for the Crown - and to be honest with you, the Dipietro case is not photocopied well in mine and you may want to look at it in the blue-tabbed book if you find that more convenient. It was one case I noticed when I was reading through it that is a little faded. But I am referring to what, in my tab, is the fifth page in, second-last page of the case. On the right-hand side, the second paragraph down, they're speaking with respect - this is some time ago - but they're speaking with respect to gaming itself in the early English statutes, and I do note that there's a quote from Coleridge which says that the object of the statute was to prevent the contracting of bad habits by the practice of games where money was staked in public houses. If money was staked, that would be gaming and there might be a conviction for allowing gaming in the house. My guess is that this statute has a lot to do with morality and the reason for its existence. I doubt very much that, given the present situation with our governments in this country and their attitude towards gambling and horse races and opening casinos, that my friend would like very much to argue the position that it's really a moral issue anymore. The Crown went on to indicate that there's going to be all kinds of problems here if this doesn't - if winnings is not included in gains. I mean, how is the Crown going to catch everybody? The law is going to be powerless. Well, Your Honour, the law should be powerless to catch people who aren't doing anything illegal. There's nothing wrong with that. People who act within the law shouldn't have to worry about laws becoming more powerful. If the law wants to catch someone who's involved in this kind of activity, they can make laws that will cover it. If there was a new law that came out tomorrow that said that gaming is illegal, or being in a business of gaming is illegal, or winning money from playing games is illegal, there'd be no trouble catching just about everybody who does any kind of betting or gaming. But I think the fact that the legislators have not done that indicates that their intent is not to be so broad and not to be so wide as to catch everybody. The fact is that gambling is not illegal other than the way it is proscribed within the act. The next point I took notes of: My friend indicated that Section B seems to be somehow setting out ancillary methods of carrying out the activity proscribed by A. I find this a very difficult interpretation to manage. I see that after A we have the word "or," and then there's B, of course. Not only that, but B, as it's worded, tends to deal with games. It's the manner that games are played, whereas obviously A deals with the place, the place which is kept for..... I think they're fairly distinct. I don't see much trouble - I cannot read that to read that gain is the overall kind of activity we're trying to proscribe, and all these other methods are just ways of defining gain. It doesn't read that way to me, and I think that's an unnatural reading of it. And certainly I think the case law that we refer to, certainly, I don't think you'll find that anyplace. It's my friend's sole interpretation. I don't think you'll find any case law making a similar type of interpretation. THE COURT: Before we leave that point... MR. SAGLE: Yes? THE COURT: ...and I don't want to interrupt your flow of thought, but if I could just direct a question back to Mr. Marin. Was that your position? MR. MARIN: Could he rephrase the submission, Your Honour, please? THE COURT: Well, as I understand it, the Defence is suggesting that the Crown position is that essentially - well, perhaps I should let Mr. Sagle rephrase it - but as I understand it, the Defence is suggesting that the Crown suggested that B is simply a way in which A could be committed. MR. MARIN: No, absolutely not, Your Honour. MR. SAGLE: Well, maybe I understood the wording he used - I thought he said "ancillary methods." THE COURT: I didn't take that as the Crown position, but I wanted to stop you at that point in the event that I'd misinterpreted it. MR. SAGLE: I appreciate that, thank you. THE COURT: Again, I apologize for interrupting. MR. SAGLE: No, that's fine. Next, I want to refer to a few of the cases that the Crown raised in its closing argument. The first one I want to mention is the Dearborn case, which you'll find of course cited in my friend's blue book. I'm not going to actually look at it or take anything out of it, other than this: A plea of guilty to a 201 charge in which there was no particularization of A or B. Both were open. The Crown indicated there was a rake. A rake is an offence under B; there was a guilty plea. I don't take that in any way to indicate whether or not he would have been or could have been found guilty under A, had there been a trial or on the evidence provided. He pleaded guilty. There was a good reason for him to plead guilty, at least one we know of, and that is - I accept my friend's word that there was a rake. And I don't believe there's a guilty plea which specified it was B or A, just guilty to the overall charge. I think it would be incorrect for us to read much more into it than that. My friend also refers to several cases which I have in my list as well. Perhaps the Karavasilis case is one which we could look at since he's made some point of coming back to that in the second part of his argument. That's in his book and it's also in mine. Tab 13. My friend has made some issue of the fact that the reference is to business. The fact is in this case, there was a business, but it wasn't a business of a gaming house we're talking about. This basically was a soccer club, I think, in this case, if I'm not mistaken. It was a place kept for gain. I'm sorry, I'm reading this without telling you where I am. I'm on the first page of the case. At this point, I'm really only looking at the headnotes of it, but it's clear here basically, even in the first paragraph, we're referring to a Hercules Soccer Club, is the premises, and they collect membership fees which are donated to a bona fide soccer club. The accused supplies cards, scorepads, and after each hand money would be exchanged between players. No rake-offs. The accused sold refreshments to the players and told the police that without the card-playing the members would not stay. And my friend goes on to make note of that a little bit later. On page 536, it is noted in the second paragraph from the top on the right-hand side that, "The evidence could well be developed in greater detail. It appears to be incontrovertible that the appellant was carrying on a business for gain on the premises." Well, of course he was. He had a soccer club, basically, and he sold food and he sold refreshments, and that's a reasonable inference that the Appellant had not made the arrangements he did respecting the facilities for the playing, his business would have suffered (sic). It's not the business of playing cards that would've suffered; it's his business that is separate and one of the main contentions that the Defence is trying to make is that all of these cases deal with separate business interests. Not the gaming interests; it's not the business of gaming that the courts are speaking about here. His business would've suffered if he didn't have the gaming in there. Therefore it's a separate business that we're talking about. My friend also mentions the case of Lefrancois, 1981. In his book, it's number seven. This is an unusual case and I will refer to it later. I have it in my book under a different heading with respect to the way the courts have defined a number of the words used in what I would call "the gambling sections." In this case, there's a restaurant. In this restaurant, they're playing a game of, sort of like heads-or- tails, flip-the-coins kind of a game. It's a clear example of what basically we are trying to show to this court and to convince the court of, that basically all these cases are like that. There's a separate business. He makes money in his business. His business improves because he has people there playing games. None of these cases deal with the business of gaming, and it's never the money from the games, the business of gaming that is being dealt with when you're talking about the place kept for gain or the business. The place kept for gain here is a restaurant. It's a separate place kept for gain. In fact, my friend made some point, I think, of the last page, page 384, because this case does talk about gain and talks about the purpose of gain. The room was kept for the purpose of gain. Of course it was; it's a restaurant. That's his business. It's not the playing of cards. They don't have people in there to make money off people flipping coins with each other. They have a business going on there. And that business is a place kept for gain. These cases, rather than harm what I'm trying to convince this court of, are really supportive. And it's easy to understand, even more clearly, just above where I just read on that last page, Your Honour, right at the top, in this case, "Furthermore, the notion of gain necessarily implies that the amount paid to the vendor must exceed the cost of the items sold." That's the kind of business he's talking about in this case. It's the commercial activity that goes on in this place. That's his place kept for gain. When I go on to my cases, the cases I've listed, and you've already heard some of the ones Mr. Turmel has listed, this is not an uncommon situation. This is what they're all like. They're only different cases maybe when they're rooming houses or billiard halls, and I think one case sells booze, but they're all businesses, they're all making money from doing something, and they make it because people come to play games, but it's not from the games. They increase their own business. They make money by selling things. They're all like that, until we come to the case that my friend has showed you earlier, the Turmel case, which was heard recently in Quebec, and my friend is absolutely right; this is a case which, on the face of it, appears to be very much like the one we're dealing with here. However, there's one clear distinction in my mind between these two cases, and that is how they were handled not only by the Crown but by the Court. We have to keep in mind that in this case there was no particulars allowed. They were requested and never given. Both A and B were included and both A and B were considered by the Court. The problem is, in my view, they were not considered separately. Basically, had Judge Bonin been faced with just A, certainly I think there's a reasonable chance to suggest that he would not necessarily come to the same conclusion as he did. What I have here, Your Honour, is a copy of this case with English down the left-hand side. It was a translation by Mr. Turmel. I'm sure other people here who speak the language much better than I do will correct me if I make any interpretations that are wrong, but I'm going to try and read it in English since it would be most difficult for me to do it otherwise. I think Mr. Turmel's going to get a - I have a copy, Your Honour, if it helps you to see where I am on the English version. I believe the one you have there is French only. MR. MARIN: May I also get a Turmel translation so I can follow, please? Thank you. MR. SAGLE: The numbering of these pages is somewhat difficult, but I'm looking at what I see in the right-hand corner, number 45. It starts at the top, in English, at the left. "It was therefore a casino..." THE COURT: Yes. MR. SAGLE: I'm looking at the second paragraph and what I'm really trying to show Your Honour, as I look through this, is how, generally speaking, when Judge Bonin speaks of the business or the casino or of a place kept for gain, he almost always has connected to it something that would normally be part of the B Section. For example, he refers to Sergeant Durno (ph)... "...was then heard for the Crown and I qualified him as an expert. He testified that, as most people would instinctively expect, casinos are there to make money and that, in the game of blackjack, the house finds itself as the natural beneficiary of a percentage advantage from two to five percent, according to the theory." So he talks about the casino being there to make money, and of course that's what we've heard. It's there to make money, it's a business, and therefore it's terrible. But in the same sentence, Your Honour, he brings in the fact that they do this because the house has a natural advantage which is in relation -as you'll no doubt recall the evidence of Mr. Sheppard - related to having to deal all the time, to have the shoe, to be always dealing. The dealer has a natural advantage. I will point out that in this case and even in the case today, I don't believe anybody has provided any expert opinion to determine what the advantage or disadvantage in this game is, in this - if you want to call it a casino - is. But you certainly did hear - I believe Mr. Sheppard indicated that in a place where the players can deal, that natural advantage transfers to the player when they deal. Therefore, in a sense, there is no house in the same way as there is in Montreal, where the house is basically the compilation of all the dealers. In this case we're dealing with today, and even in this one, although it was never mentioned, there was no specific reference to the edge, if there is one, in the Casino Turmel, as it was called there, nor is any point made of the fact that - at this point; it does come up later - that that would change when the deal changed. Okay, I'm looking at now what I believe is a 41 on the right-hand side of the page. On the left-hand, top, it begins with "A game is a game of chance or..." at the very top in English. About three paragraphs down, "The question which must be asked..." MR. TURMEL: It's 49 on the transcript. MR. SAGLE: It starts at the very top, Your Honour, "A game is a game of chance," in the English Section. THE COURT: On 49? MR. TURMEL: 49 of the transcript pages. THE COURT: Yes? MR. SAGLE: And down about the centre, you'll see "The question which must be asked." THE COURT: No. MR. SAGLE: No? You have not found it, you mean? THE COURT: Well, I'm on 49; I don't see that. MR. SAGLE: If I might hand this up. I'm handing that page up, Your Honour. THE COURT: Oh, I see. MR. SAGLE: Right after the... THE COURT: You've been referring to numbers on the side. MR. SAGLE: Yes, my photocopy doesn't have the numbers very well, I'm afraid, either, so... THE COURT: So 49, then. MR. SAGLE: So what I read in the centre of that page, "The question which must be asked is therefore the following: Are we before a place and are we before a place?" Now, maybe that's a misinterpretation; I don't know what it says exactly in French. The actual point I want to raise comes next. "This place: Is it kept for gain? We will see if it is kept for gain. Do people frequent it to play games? And it is clear from all the evidence that people went there solely to play games. Ironically, the house rules mention "No play, no stay." If you don't play, leave. We cannot have a descriptive phrase that the reason people had to be in Mr. Turmel's gambling den was to play." I have no problem with that. He's apparently asking himself if there was a gain. His answer seems to be resolving around, where the people there just to play games? Obviously they were and we'll admit they are, in this case as well. It just seems that there's a little misunderstanding. It doesn't seem to be going the way that - he starts to ask the question, and the answer doesn't seem to be one that you'd expect to result in the conclusions that will come. He goes on to the next page, and it says, "Therefore, a place uniquely for the playing of games, a place which requires at the start a massive investment and important fixed costs which evidently he paid. May we do otherwise but conclude that this place was kept for gain? It seems clear to me that the place was kept for gain, but also paragraph B reads 'The place where....'" And he says, "I place a 'where' which is not in the Criminal Code," he says, "...but where we say, depending on the case..." And he goes on to read the B(1) and (3), which is a bank kept by one or more, but not all, of the players, and if chances of winning are not equally favourable. So again, each time he comes to this idea in his mind, he asks himself, "Is there a gain?" He starts off by saying, "People come here just to play games, there uniquely to play games and can we conclude otherwise that it's for gain," But of course we can, because the fact that people go there to play games certainly doesn't do it. Now, maybe the suggestion that the massive investment is one of the factors, but his second factor seems to be, comes right out of B, and again we're back to this business about a bank being kept by one or more but not all of the players and the chance of winning not being equally favourable. Both B Sections. So I think, when he's making his decision, he has the - you might call it a luxury - of looking at both A and B altogether in his mind. He doesn't have to separate them, and he doesn't really, because each time he goes with one, there's another one right with it. And what I suspect he's doing is in fact not separating them, not trying to decide, because he doesn't have to if they're unrelated. I'm suggesting to Your Honour that the evidence which he just gives with respect to answering his own question with respect to whether there's a gaming house would not be, in itself, to prove there was one, but I think when he adds in the B Section, he feels comfortable that he's got all of that to go with. Then he concludes overall that Mr. Turmel is guilty. Then, of course, he goes on to indicate that he's certainly not guilty of - or that there's a reasonable doubt that he's guilty of betting charges, and those were dismissed at the time. I think I've covered all the points that I wrote down when the Crown was making his submissions, and what I want to do now is go on basically to my main arguments myself, but I wanted to clear those up and make sure we covered them while everybody remembered them. Just going back to my main point where I intended to start originally and when I indicated to you, of course, that gaming itself is not illegal, and I have - and while it might seem obvious, perhaps trite, and I don't need to bother - there are cases certainly in which the judges confirm that, that gambling's not illegal, gaming's not illegal, and I suppose the very fact that I'll be presenting to you cases where people have been found not guilty of gaming charges, where they were found not to be guilty of the sections under which they were charged, may indicate that as well. But perhaps if I could look at the Pilon case, which is the first one in my book. This is under the section of betting versus gaming. These are all cases, in this case, which we prepared because we understood we'd be dealing with betting charges as well as gaming charges until recently. However, it may come in handy even now. None of these cases - I don't think any of them actually are ever asked to answer this question or specifically say it, I suspect, because it is so obvious. Each one I think will give us some understanding of what they mean, and I'm looking on page 345, which is the second page in, actually, on the left-hand side, just above centre, the paragraph beginning with, "It is true that civil law..." "It is true that civil law refuses to sanction gaming and wagering by denying to players and wagerers rights of action either to recover or restore the money, or any other thing claimed, under a gaming contract or a bet, but this does not mean that the game is thereby criminal." And if you skip one paragraph and start again, "Further, the Criminal Code does not prohibit the game itself, whether it be a game of chance or of mixed chance and skill; it prohibits the game only when it is played in a gaming house." This principle applies also to betting, of course. Betting is not illegal either. And I refer to the third case in my book, which is R. v. Hatty(ph), also in this betting-versus-gaming section. And I go to the last page. THE COURT: Yes. MR. SAGLE: And it basically says the same thing with respect to betting. Down near the bottom, the fifth line from the bottom, starting paragraph, "The charge is not for betting but for keeping of betting house." If I could refer Your Honour to R. v. Mack(ph), which is number 18 in my tabs. This was a case of a poker game, I believe, in progress, what they call a friendly poker game, a Saturday night kind of game with local people from the community. On the second page, at the very bottom, four lines from the bottom, "If we are going to invoke the provision of the Criminal Code dealing with the presumption of guilt on a man having a poker game and basing it on the fact that there are chips and cards, admitting that there was money involved in the betting, it seems to me that a dozen homes in this place could be raided every week. I know it goes on personally, and all these things create a very grave doubt in my mind as to whether this place was a gaming place." And of course, this doubt I will find in other cases as we go through them for other purposes, and my point will be partially that to have the interpretation that the Crown wants to put on "gain," to include winnings as gains, will basically have the effect that this court was concerned about, that there is legal gaming going on, there is legal gambling, and to have a kind of a winning as being the prohibiting factor, of course, makes it all illegal, and that's never been the intent of the legislature, and the fact that the courts express concern about certain interpretations and certain requests by the Crown in these cases to make decisions reflects that. The next case is R. v. Jal (ph), which is number 21 in my book. On the third page, page 99 at the top, halfway down on the left-hand column, pretty much in the centre, new paragraph, this is referring to the B Sections, "I conclude that the intent of Parliament, in enacting Code Section 226(1)(b)(1)..." Which, of course, is keeping a bank to the exclusion of others, "...was not to embrace by that definition all such games wherein a bank is kept and thereby, in effect, to prohibit all types of this game. If so, the language following the word 'kept' is mere surplusage." The point being that the courts do recognize that certain kinds of gaming, even banked games, is legal, and I will ask the Court to keep in mind the question that if there - if it's possible to have legally banked games, then how can winning of these games be the factor which makes them illegal by including them under Section A? It is, of course, the Defence argument here that the fruits of Mr. Turmel's labours are winnings. I have not heard anything to dispute that. They've been called different things, but the truth is that they are on the other side of the losses. People have testified that - Officer Fotia, for example - that he lost money. And of course the losses go to the other side where there are wins. I believe that to follow the interpretation of my friend would be to put such a wide interpretation on the word "gain," it would be wider than any previous Canadian court has done. In fact, what I hope to show the Court is that in dealing with these sections, all these what I could call the "gambling sections," or the "prohibition sections," the courts have not used a wide interpretation of these, as one might expect, not only because they're criminal statutes, but in particular with respect to - it seems odd to say - but almost the protection of the ability of persons to still play games and to bet. I don't have much doubt that if the words of these sections, these definitions, were literally interpreted, or even widely interpreted, you wouldn't be able to have legalized gambling in this country. I'd like to start off by, as I say, looking at some of the other definition sections in here, because I think, if you see how other words have been defined, I'm obviously going to present cases, and have already, which show how, in the past, historically, the "kept for gain" sections have been interpreted. My friend wants to argue that that's not all- inclusive, and an imaginative Crown might be able to sneak some other kind of interpretation in there, or some other kind of fact situation, but I think if you look at some of the cases that deal with other parts of these definitions, we can have an idea of just what the historical court method of dealing with these is. The first one I want to look at is basically under the B Section, which is B(1), which we talk about a bank kept by one or more, but not all, of the players. At one point, I believe, prior to 1953, this was read to be kept by one or more to the exclusion of other players, or something along those lines, and these cases may in fact mention that wording. But I think there's no distinction to be made. And again, perhaps I could refer you to the case which we've just looked at, and that was number 21, R. v. Jal(ph). It's a 1950 case. In fact, in this case - and I'm looking at again the same page, Your Honour, 99 at the top, three pages in. THE COURT: I haven't left it. MR. SAGLE: Oh. On the right-hand side at the bottom, first bottom paragraph, "Counsel for the Crown respondent did not rely upon the provisions of the Code, 985 or 986, but rested the Crown's case solely upon the submission that the bank was kept by one or more of the players exclusively of the others. He urged that the word "exclusively" used in that section must be taken to extend to sole possession or control of the bank for any period of time, no matter how short; and secondly, that the evidence showed that in this game, operation of the bank was necessarily limited to a few players since the following factors made it that the bank rotated among the players at half- hour intervals." In this case, Your Honour, obviously a banked game again... THE COURT: Are there pages missing? MR. SAGLE: It seems to be in order in mine, Your Honour. 99 to 100. I know that the form of the page changes; it goes laterally. THE COURT: I see. 99 appears before 98. MR. SAGLE: I do see a 98, yes. Each side of the page is.... And of course, the result in this case, the second-last line of the case, "I consider the Crown has failed to establish that the premises constitute a gaming house with the definition of that term." Sorry, I should read above that, "In the absence of any evidence to show that the individual player's exercise of his right to become banker or the method of rotation of bankers was other than a bona fide exercise of the privilege which each player had to become banker." The Crown in this case, and another one that I'm going to mention to you, obviously the section was worded fairly shortly. This is where a bank was kept by one or more of the players exclusively of the others. When the raid was made, there was one person being the banker. Of course, there's always one person being the banker; that's natural. And what the Crown wanted to say was, "Look, here's the plain wording of this; what else can it mean? It's exclusively of the others. Well, here he is dealing. Nobody else can be dealing at this time; it's exclusive." And there's another case I'll show you next which is the same thing. The courts have not accepted that. They basically have indicated that what it really means is that other people are denied the right to become the banker, as long as they have an option of becoming the banker in some method, that that doesn't mean just at any one point in time; it means over a period of time where the rules do not allow everybody to become a banker. So the argument failed. But it's similar, as we're looking at today, where the Crown wants to look at just the words and apply some sort of common-sense, plain meaning to them. But by doing that - I mean, I can see - this case and other cases that I'll show you - that the courts have not accepted that. They've been much narrower in their interpretations than the Crown would like. Monroe is the last case, number 22. This goes even a little further. I believe it quotes the last case I mentioned. And actually, in the headnote, you can get what I'm going to provide further in the case anyway. "The mere possession of a fund which constitutes the bank in a game of blackjack does not render the possessor the keeper of a common gaming house. Two other elements are required: Namely, some advantage over the other players in the game must be conferred on the banker by his possession of the bank and the rules of the game must preclude some or all of the players from having an equal opportunity to becoming the banker." You don't find this in the act anyplace. I recall my friend mentioned the James case. It said in there that the act does not limit the definition of the word. Well, it certainly doesn't, but the courts have, just like in this. The Court has found that basically a plain, little interpretation, or a commonplace interpretation of these words, in the context of the gambling sections, is not very realistic. And this case even went further, to imply that when the Crown has a case in which they've found someone who is exclusively the banker, they have to have even more than that. And of course, it's not implied in that section. It strictly comes from the courts in the way they've dealt with these. In that case, he has referred to other cases which I've not bothered to bring. On page 72, for example, the case of R. v. Hung Gee(ph), 1913. I mean, this goes back a long ways. "I am of the view that some advantage over the other players must accrue to the banker because of his position before the bank which he holds becomes a bank within the meaning to be given to that word as it is used in the section of the Code referred to above." And the truth is, I was only going to go on to refer to cases which say the same thing, and since he quotes them, I guess I won't bother. I do have another case, but it's referred to right here, so while I'm here, perhaps I can just mention it. It's the Rubenstein case, and you can see on page 73 at the top, second full paragraph, "Prior to the Rubenstein decision, the relevant section of the Code had been amended to make it unnecessary to prove the banker was exclusively in the possession of the banker. By the time the Rubenstein case came to be decided, the relevant section of the Code read as it does now. I think, for the present purpose, this change in the Code is immaterial, and of course, now it does read, 'In which a bank is kept by one or more but not all of the players...'" But the point being that, even through that change, Monroe recognized the change and has done it on the basis of what we have here now. So I won't go back to Rubenstein. It says the same thing. But Monroe went even farther, as you can see. A case that my friend referred to was R. v. Lefrancois, which is number 17 in my book. I've got this obviously in for a different reason. I think I referred to it when discussing my friend's submissions earlier. This is basically a gaming equipment case. AS my friend mentioned, there's a presumption in the act which he is not relying on, but it does indicate that where gaming equipment is found in a place, there is a presumption that it's a common gaming house. But that's pretty clear because in the same definition section, 179, gaming equipment is defined. And I'm looking at the Section 197, page 186 of my Code, and it is just slightly under the common gaming house definition. "Gaming equipment means anything that is or may be used for the purpose of playing games or for betting." So that's what gaming equipment is, and, if somebody finds that in your place, there's a presumption that it's a common gaming house. Well, I suppose if one looked to that, the Crown might suggest, "Well, that's pretty clear; now we know what gaming equipment is; it's anything that is or may be used for the purpose of playing games." Well, the courts haven't seen it quite that way and, of course, Lefrancois is one more example of how they deal with that case. I'm looking now at page 382 of that case, where it defines gaming equipment, indentation. THE COURT: Yes? MR. SAGLE: And then, right under it, it says, "That definition is so comprehensive that it seems to include everything one can find in a house because one would have to have absolutely no imagination to be unable to use any object to game or bet with." And he goes on to use the example of the Criminal Code and of opening it up to find a particular word and using it as an object to game or bet with. And after that, in the next paragraph, he says, "For this reason, objects not conceived with a view to gaming or betting, sometimes called neutral objects, are not generally considered as gaming equipment if it is not otherwise proven that they were actually being used in the room in which they were found for gaming or betting." So again we have a pretty clear section of the act, a very clear definition, but the courts will not accept those clear definitions without some kind of restriction, without some kind of protection, because they're all like this, they all go too far. They all tend to include much, much more than obviously the courts are willing to accept that legislators intended. Certainly if they didn't, certainly if they just took the reading from that, I mean, you can imagine, as he indicates in here, it's so wide that almost anything can be covered. Obviously, you can't tell just what the intent of the people who write this up is by looking at the words of the act. You have to look at the cases and see how they've been interpreted. Another example can even be the word "game." A simple word like that is defined in 197, right above "gaming equipment." "Game means a game of chance or mixed chance and skill," And you'll notice, in the definition section of gaming house, of course, under B, we're talking about - and actually in A - playing games. It should be fairly straightforward, basically, but the courts have not allowed that to be quite so simple either. Obviously there can be lots of kinds of different games when you're just talking about chance and skill. But what the courts have done with it is they ended up requiring another consideration before we can have gaming or playing games. Just give me a second and I'll find the case to explain that. R. v. Irwin, 1992, Your Honour, which I have listed number 14, I believe, the last of the "kept for gain" cases. In this case, we're dealing with a blackjack tournament in a restaurant, and on page 213, halfway down, left-hand side, you can see "Money's worth," right about halfway down, "As well, it could not be said that the tavern owners or managers were involved in gaming on the tavern premises, while it is true that the proprietors of the taverns stood to gain if sufficient players were attracted to the premises and purchased sufficient food and other goods to increase profits and cover the cost of running a tournament..." I particularly refer to that section basically because it's another case - and I can come back to it later - but another tavern, another business, and their business increases, they sell goods because they have people come to play the games. However, the point in this one - that's what I had these for. On page 216, at the bottom left-hand column, the second-last paragraph, "On these facts, the learned trial judge acquitted the respondents. In his reasons for judgment, after stating the agreed facts, he said, 'It is well established that to constitute gaming, the game played must be one which involves the element of wagering. Such player must have a chance of losing as well as winning.'" Well, as you can see, that's not in the definition section. That's not the kind of game the definition section describes. It doesn't mention anything about winning or losing. And of course, if you didn't restrict that, if you didn't interpret it restrictively, again, just like with gaming equipment, any kind of game of chance or mixed chance or skill, without even any money being bet could be covered. I mean, the truth is, these sections aren't very well worded. That's what it comes right down to. The courts have had to do a lot of work to create case law so people can look and try and figure out what the law is in this area. You could never find out by reading these sections. You'd have an incredible distortion, a distorted idea of what these gambling sections meant if you never looked at these cases. On the same case, Your Honour, page 218, on the left-hand column again, down past the indentation, (d), we're talking the appeal here, and in this case, third line in, the appellant, who's the Crown, "...contended that the trial judge erred in law in his interpretation of Subsections 179 and 185 of the Criminal Code of Canada and in holding that the agreed facts disclosed no evidence of gaming. It is the contention of the appellant that Section 185(1) of the Criminal Code read in conjunction with the definitions contained in 179(1), creates an offence of which the constituent elements are keeping a place for gain resorted to by persons for the purpose of playing games, which games are games of chance or mixed chance and skill." He just wants the judge to look at the act, look at the section, read the words, give them a plain meaning, and find him guilty. But at the last paragraph, the Court says, "There is, however, a substantial body of Canadian and English traditional authority to the effect that, in addition to the elements listed above, the prosecution must also establish that gaming took place in a sense of wagering on the part of the participants in the game, either between the players themselves or the players and the persons conducting or operating the game, so that the participant in or operator of the game may win or lose money, or money's worth, depending on the outcome of the game of chance or mixed chance and skill." It doesn't say that in the act. None of these things are said in the act. The courts have had to interpret this act, and that's how they've done it. They've done it basically by narrowing the width that the normal interpretation of these words would bring us to, and which I'm suggesting is what the Crown is wanting to do with the word "gain." One other case - I don't want to belabour this point too much, but all of these have been defined this way. These aren't exceptional little things I've just managed to find. All of these words have been looked at by the courts and changed around and tried to put into some context of what should be allowed and shouldn't be allowed in this area of gambling in our society. Even the definition of the word "keeper," which is about as broad a definition as you'll see of anything in Section 197. It's got five different sections which cover "keeper." And if you look at them, the last one, for example, number (e), "A person who uses a place permanently or temporarily with or without the consent of the owner or occupier thereof. People who assist on behalf of an owner." I mean, they're pretty wide. They could catch, if interpreted widely, without any kind of restriction on them, could catch almost anybody, in a sense, who is found in a gaming house. And of course, that's just what was decided in a case which Mr. Turmel was looking at for another purpose this afternoon, which is the Karam (ph) decision. MR. TURMEL: Page 17. MR. SAGLE: I have copies I can provide to the Court. This turns out to be a keystone case, not for us in this particular action, but the fact is that this has been followed on numerous occasions in Ontario, and I believe this is a Supreme Court of Canada decision, and it was interesting. There were dissents. It was a fairly contested battle through the appeal courts. But in the end, what they decided, and I can tell you, is that now a keeper is not just one of these people, is not one of these persons listed in the definition, but you have to not only prove that, to convict a person of keeping a common gaming house, is that he controls the place and that he participates in what is alleged to be the illicit activity. There's nothing in that section of keeper which would ever indicate to you that that's necessary. And in fact, obviously, because it was argued so hotly, a lot of people didn't think it should read. And I'm looking at this case which I have only copied. I don't have it marked, but I did take a quick look at the wording of it, and we have some dissents of some pretty well known judges as well. But what they indicated in here was that the dissenters wanted a wider interpretation. They wanted to say that, basically, if you are within that definition, if you're covered by that, then basically you're caught, but the majority decision would not accept that, and ever since then, the law of keeper has been completely different than it was before that. It's always quoted and cited as being, in that area of whether a person is a keeper, as being the real key change in legislation - I mean, sorry, case. If you look down at page 127, at the very bottom, it says, "I can come to no conclusion other than that, when Parliament widened the definition of a keeper, a person falls within the definition of 'keeps a common gaming house' within 176(1), the tenant of a house operates it as a common gaming house without the knowledge of the owner, the latter cannot be said to knowingly permit a place to be let or used for the purpose of a common gaming house or betting house." And of course, the appeal was allowed and the conviction restored. That's the dissent. Right under that is the judgment of Cartwright, Martland (ph), Ritchie, delivered by Martland (ph). In this case, the facts are basically that the Karam Brother's Ltd. was the owner of the premises involved. They sold refreshments and cigarettes in the premises and they allowed it to be used for dances, banquets, receptions and by different religious or charitable organizations, a gaming hall, four nights a week. They conducted bingo games the proceeds of which were used for charitable purposes. And they paid to the company a standard rent. They rented it out to these people. But the key is that the president of the company, who was on the premises each evening but did not himself participate in any way in the Bingo game. So although it's an important case for other areas, I just mention it here as the last of a whole series of situations where each of these definitions has been looked at and reviewed by the courts and basically never left unchanged, never left with just a clear wording that you might anticipate when reading the sections. And what we're saying to the Court is that that's exactly what has been done with the "gain" section. My friend basically wants to have some kind of a plain interpretation of - "Gain is gain," I think he said - but as with these other cases, I'm asking the Court not to look at it that way and to be more - and to look at what the other courts have done in the past. Your Honour, I don't know how long it's been since I started, but if I could take five minutes, I'd appreciate it. Would that be... THE COURT: We'll take a short recess. R E C E S S (3:10 p.m.) U P O N R E S U M I N G: (3:30 p.m.) CLERK OF THE COURT: Court is reconvened; please be seated. MR. SAGLE: Your Honour, the next thing I would like to do, basically, is take a look at the act itself, the Section 197 definition of a common gaming house. You may recall Mr. Turmel indicated, I think, earlier when he was speaking - and I believe it was referred to again by my friend - that our position is that the Section A and Section B are very distinct, have very distinct applications for different purposes, and I think one way that we can analyze this section is, first of all, by looking at the B Section and seeing what it does. I think it's fair to say that obviously A and B are necessary to understand what a common gaming house is. Each section has its own place. Obviously you can be convicted under B or you can be convicted under A, and I think you can assume that each one means something different, and I think if I can look at B and give some indication of how it's used and what it means, it might help clarify what the A Section really is to cover, and what a place kept for gain would mean. Just starting off on B, where it says, "Kept or used..." and of course we're talking about a place, "...that is kept or used for the purpose of playing games in which..." You'll notice each one of the next subsections begin "in which..." "...playing games in which a bank is kept, playing games in which all or any portion of the bets on proceeds from a game is paid..." etcetera. Each one begins like that. We're referring to the games. This section basically sets out the restrictions on gaming. While gaming is legal, there are restrictions on it, and here they are: There's four of them. The second section, you've heard the term "rake-off" used by, I think, perhaps Mr. Sheppard, and it may have been used once by Mr. Marin, referring to the Toronto case, Dearborn. That's included in here. First of all, the bank, which we've talked about at length. The second one, "In which all or any portion of the bets on or proceeds of a game is paid directly or indirectly to the keeper of the place in which, directly or indirectly, a fee is charged to or paid by the players for the privilege of playing or participating in a game or used in gaming equipment." So if you take money off the table, which is the rake-off from every pot, somebody takes the money for the house, as they do, quite frankly, in almost every legal casino. On the poker tables, that's just what you do. Or if you charge a fee to come in or if you charge a fee for playing. That's why I point out that $200 was not a fee; it was just basically what you had to cash in. Or lastly, one we've seen before, in which the chances of winning are not equally favourable to all the persons. What I take from this is that, here are the restrictions on what you can do. Outside of those restrictions, you can game. In gaming, I've already showed you cases which means wagering. You have to be playing ability to win or lose (sic). And so what it comes down to, basically, is that you're allowed to play, you're allowed to win and you're allowed to lose, so long as you do it within certain restrictions. And here they are..... We're not charged in this case with breaching any of these restrictions, but to be honest, I believe that even if they were, I don't think any of these would really be - I mean, obviously if they were - if there was some indication that he was in breach of any of those, I guess he'd be facing B charges. And earlier, of course, in the case with Judge Fontana, the B section was reviewed and he was found not guilty on that. So if you have envisaged a game in which you can play for money and you can win or you can lose, and it's not illegal, and that place which you envisage by doing that is John Turmel's place, basically he has put himself in a situation that no one has done, I think, probably, before. The restrictions on the ability to game, he's in between the lines, you might say. He is allowing - as Mr. Sheppard admitted he never, ever would - allowing the players to deal. What it does is it takes away number four, because the chances of winning become equally favourable because everybody can become a dealer. And of course the bank is no longer kept exclusively by anybody. So the only reason this works is not because it's so clever of Mr. Turmel and that he's developed something that's never been thought of before, but this game is allowed to go on because the players let it. If tomorrow afternoon this casino was operating and all of the players decided they wanted to be dealers, there'd be no business there, there'd be no game, there'd be nothing to do. But they're allowed to do it, and because they allow it to happen and allow it to continue, he's allowed to have a place where the bank can go to everybody and where all the chances of winning are equal. So he has, in a sense, been found before - and again not charged this time - with being in a place where he can win money from gaming which is not covered by Section B. Well, it's not good enough, of course, for the Crown or for the political people now who are involved in gaming themselves to allow that. So what they try and do is try and take A, "Let's stretch it; let's make it cover these things too." But by doing it, what they do, as soon as they stretch "kept for gain" to include winnings, basically everything that is allowed by B becomes covered. You cannot have a game because every game involves winning or losing. And if you're winning, and that's a gain, then you're taken up into the A Section. It's the kind of thing which the courts and the judgments I've referred to in my case book basically have been concerned about, that they do not interpret the law in such a way so that gaming becomes illegal or that the Saturday night poker game becomes illegal, because they're never intended that. But that's really the - what would happen if you were to take the definition that winnings and gaming could be included in games. THE COURT: Doesn't it go back to the word "kept"? If you were having a Saturday night poker game, the question would turn on the purpose for which you kept your home or your apartment. MR. SAGLE: But it's not necessarily for the purpose, but if your purpose was to play cards and to win, of course, I can tell you that you don't have to keep a place. The word "kept," under a case which is in my book as well, you know, if you look down at "keeping," "...uses a place permanently or temporarily, has the care and management of a place, is an owner or occupier of a place." THE COURT: But if you go back to definition of a common gaming house... MR. SAGLE: Well, perhaps... THE COURT: ...it makes reference "for the purpose." MR. SAGLE: Actually, it doesn't say "for the purpose." I think it says "kept for gain." THE COURT: "Kept for gain..." MR. SAGLE: Yes. THE COURT: "...to which persons resort for the purpose of playing games." MR. SAGLE: Right, and I'd suggest to you that, even at my home, basically, if - the "kept" doesn't necessarily refer to, I don't think, to the necessary ownership of the building or - but I think, in those cases, if I have the place, I'm the keeper, I'm keeping it, and basically I'm inviting my friends over - in Mr. Turmel's case, maybe every night - and you say that if I do it for the purpose of winning, I'm doing it for gain - there may be other purposes I'm keeping that place for. Maybe there are others, but certainly when you do it on a regular basis, I suspect - I'd be surprised if the Crown would, given what they indicated the definition ought to be, would tell us that's not a place kept for gain. It might be that there's some kind of game that could still be allowed, but many of the games we've talked about in here, and the situations which have been allowed, would be covered. For example, I look to the cases that I mentioned before. Monroe was an example of a banked game where - number 22 on my list - where, on page 72, "I conclude that the intent of Parliament in enacting the Code was not to embrace, by that definition, all such games wherein a bank is kept and thereby, in effect, to prohibit all games of this type." This case, as I point out, extended or expanded what the Crown must prove when it referred to gaming - or I'm sorry, to the bank, having the bank - had to also have an advantage, etcetera. But my point in this case being that basically it's not intended to be so all-inclusive, so expansive. What it does allow, by including this extra part of the definition that you have to have this advantage over the other players, it does allow for a game, a banked game where money is played for, because it's got to be gaming, and where somebody can win. I believe the Rubenstein case which I did refer to in here - I didn't look at it before, but I would like to now, because I think it actually, perhaps, even says a little more on this point. Actually, Your Honour, the quote I did use on Rubenstein from Monroe is all I really could use Rubenstein for. It is another case which indicates that the bank, the exclusivity of the bank only means that different people have the ability to become the banker. And I'm not trying to say any more about that. The point that I wanted to make I think I can find in Monroe. Because in Monroe, it's a kind of unusual case, what the Crown alleged was that some of the players couldn't become the banker because they didn't have enough money. The way you became the bank in that case was only by what they call "tapping out" the dealer. That means you had to have enough money to bet in sufficient quantity that the banker lost all his money, so you could become the banker. And basically what the Court said - and I'm looking at page 73, the second-last paragraph from the bottom, when it starts, "The learned Provincial Court..." This is where it appears to have held that not all players were capable of tapping the bank because not all players had a sufficient amount of money to follow the system advocated by Mr. Nash, who was the expert, that is to say, doubling their bets until such time as they won against the dealer and tapped the bank. It seems to me, however, that the financial worth of the players cannot be determinative of the matter in issue. The rules were set by the players and, in the event that a player wished to become dealer, it was his responsibility to provide the requisite funds to enable him to tap the bank. The point being that some of the players may well not have been able to be the bank in this case. So the people who could have an advantage. We've heard that basically from expert testimony. If I can't become the bank, I'm at a disadvantage to those who can. An advantage in this game just means one thing: You're more likely to win. So this says, yes, winning is okay. You can have an advantage over other people. You can even have the bank more than other people in certain circumstances, and, by that you will become a winner, but that's okay. Winning at these bank games, being a winner in these games is okay so long as Section B, the prohibitions in Section B, are met. My friend may well argue that the Section B section was really meant to cover Mr. Turmel and that's probably why he's been faced with the Section B charges so often in the past before he had found the formula, I suppose, that he has now. Those are the sections that are really meant to control people who perhaps in some way unfairly win, have an advantage over others and take advantage of others by these methods and make money by these methods, as opposed to just being a fair game and an honest game, which of course Sergeant Fotia suggested this was. That's why they've always caught him up until the last case, and that's where the law should be applied if it's applicable. It shouldn't be that we take another section which has never, ever, until - and we all agree that the Bonin case is the recent exception, and I'll also say that my guess is that the judge in that case did not have the benefit of going through the information that you're receiving - that none of the other cases ever did suggest that winning money is either illegal or that it is gains. Mr. Turmel's looked through a lot of those cases, and I've sort of gone through most of mine either with respect to that point or to other points, but each one of them is the same. "Place kept for gain." Nobody's ever been convicted, other than Mr. Turmel, of course, in a situation where he won money at gaming. And I understand what the Crown is saying with respect to how to interpret that, and I do believe that he has looked at the three ways one is supposed to when there's some trouble with interpretation. You look to what the intent of Parliament was, and quite frankly, as I said before, I have no idea how we could ever determine that now, given the hundred years that's passed since that section was actually put in place. The other thing you do is you look at the prospective results of a decision, of the interpretation that you're suggesting. He suggests if you interpret it the way I am that the law is powerless to stop some people from doing something which is not covered by B. The other way - and of course, I say that basically if it doesn't completely stop gaming, it certainly restricts gaming in the sense that it is allowed today, in a way that - you may be right; you may be able to find that you can still play a game in your home, but the way that gaming is allowed to do, and the legality of gaming that we enjoy certainly would be diminished greatly by that kind of an interpretation. The third way to do it is to have a retrospective of the case law, to look back at how the courts have interpreted in the past these sections. And what I've found and what I hope I've shown is that in all these sections dealing with gambling, they have not just taken the words of the act, they've just not taken, as has been urged in several cases by other Crown attorneys, just to take a simple word and let it go, and the concern has been that they will overly restrict what is a freedom that we have to gamble or to bet or to gain. And in all the cases which we've provided - and with respect to the recent one, I grant it's an exception - have all found situations where - I mean, all the gain cases have been dealing with places of business or selling of items for profit. And I think that's what it was meant to cover. I think that because that's what all the cases - that's how it's always been used, and to think of it as the way that my friend seems to me to make to be so wide as to make to be almost redundant. You don't need B. If gain can be anything, obviously it could be fees, why couldn't it be a rake? If it can be winnings, I mean, it can be anything. We don't need B anymore. Those sections are there to define what you can do and what you can't do. And as all criminal legislation - if it says you can't do it, well, that's fine, but if it doesn't say you can't, then you can. It's not illegal. I think B is for that purpose; to show what kind of games they do not want going on. They don't want you to be the sole banker, have an advantage over other people, take rakes and get fees. But outside of that, you're allowed to play games, and, inherent in playing games, is the ability to win. Now, Mr. Turmel's organized that. Well, that's a terrible thing, I suppose. He's an entrepreneur, he's a gambler, and there are some people who think gambling is immoral, they think gambling's a terrible thing, and every time you see somebody, he must be getting away with something, he must be doing something terrible. But I'll tell you, today, in this province, I don't think anybody's going to suggest that gambling's immoral or terrible, at least not anybody whom the Crown represents. That is, the governments. I don't mean the Crown personally in any way; I mean who he represents - the Government of Ontario - who has their Bill Eight which is going to start casinos. We have them in Montreal. Last night I saw that we're going to have them in British Columbia. They're going to presumably open a big one out there now. And they have lotteries and horse races. What this is really about is not really about morality anymore, about who can play games and who can't and who can make money, and is somebody taking advantage of someone. This is really just going to become a matter of who's going to control the money that the government sees in gambling, and who's going to be able to run casinos and who's not? The government has charity casinos today, which would compete with Mr. Turmel if he's open. They're operating this weekend; there's two of them on. In fact, there's casinos in this town every week. So I don't think, basically, that the Crown can suggest that Mr. Turmel is some sort of a person who this court ought to think to itself, "Gee, we'd better stop this; this is really a bad thing, letting somebody gamble like this, and letting people come in and play cards for money." I mean, like it or not, that's the wave of the present and the future in this business, and the government, represented by the Crown today, is, in truth, Mr. Turmel's direct competitor. Your Honour, I think that's just about all I'm going to say. I know Mr. Turmel wants to say a few words. I, in a sense, summarize, I suppose, by suggesting that the interpretation that the Crown wants to put on this is just basically too wide. Actually, I should - while I did mention the three ways, statute interpretation, of resolving problems when there are disputes as to how something should be interpreted - and I think Mr. Marin mentioned, actually; perhaps I'll give you a copy of this; this is the Principles of Criminal Law, published by Thompson, professional publishers of Canada. And it basically says what I've said with respect to how you try and resolve this, but it also says, of course, one other thing, and it was referred to by my friend, Mr. Marin, and it's on the second page, last paragraph, where it indicates that, "Where there are difficult problems with statutory interpretation, you can turn to three general kinds of intrinsic aids: Indication of legislative intent, considerations of policy, considerations of principle." Right across on the other side of the page at the very bottom, it describes what the distinction between policy and principle is. And as I said, one is a prospective look and one is a retrospective look. It also says that, in the middle of this paragraph, on the left-hand side, second-last paragraph, after referring to that, "On occasion, they can also use certain general doctrines of interpretation. For example, there is the common law doctrine of strict construction of criminal enactments. This doctrine is derived from the general principle that fair warning should be given of what behavior is punishable. It requires that doubts about the ambit of penal liability be resolved in favour of a narrower construction. If a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted. Inculpatory provisions are therefore to be interpreted narrowly, whereas exculpatory provisions are to be interpreted broadly. I grant, the doctrine is however confined to the behavioral prescriptions of criminal law. It does not apply to matters such as..." Well, that's not a problem in this case. So I leave that with Your Honour. I think that basically, at the very worst, there has to be some doubt as to how that word should be interpreted. I think that the prospect and the retrospective view of it lead one to the conclusion that it ought to be interpreted narrowly, and that means a strict interpretation. And the courts have done that in the past and it makes sense to do it today. And I think, other than what Mr. Turmel wants to add, that's my submissions. THE COURT: Mr. Sagle, if I accept - and I don't think I have a lot of difficulty with your submissions in relation to the purpose of B - if you could clarify for me what then is your interpretation of the purpose of A? MR. SAGLE: Well, because this is a - I will, and I do have an idea - as I say, it's so old that it's hard to know exactly, but I believe - and I think Dipietro referred to public houses in its definition of gaming. I think I referred to where it said that the purpose was to prevent - I think it was the - I should read it, I suppose, instead of guessing at it, but... THE COURT: I realize that there's a moral... MR. SAGLE: Yes, and in public houses... THE COURT: I realize that there's a moral element, and you made reference... MR. SAGLE: It went beyond that. It referred to public houses, and I believe, in the early 1900s, a public house - you might think of that as a business. I think that's where "pub" comes from, to be honest. THE COURT: Yes. MR. SAGLE: But I think a public house, like a place of business. They've made it particularly referring to business- type, public-type places, as opposed to private dwellings or wherever someone might rent themselves. I think with the aspect of it being in public, in businesses where people would... THE COURT: To prevent bad habits. MR. SAGLE: ...draw those people draw those people into bars, probably. THE COURT: Yes. MR. SAGLE: Or pubs. THE COURT: You made reference to a passage from Dipietro, page 109, "to prevent bad habits having to do with morality." I meant in terms of the ongoing interpretation of that section... MR. SAGLE: Yes. THE COURT: ...we know that the courts have interpreted A in relation to things like charging admission, cigarettes, rake- off... MR. SAGLE: Yes, actually those are B sections. Rake-offs and admission. But selling things and increasing your own business... THE COURT: The gain. The sale of cigarettes... MR. SAGLE: Restaurants selling food. THE COURT: Restaurants, food, admission. MR. SAGLE: Admission, I think, is as a fee to play the game, probably. So that's probably B. THE COURT: What's the rationale for that? MR. SAGLE: Of the B or the A? THE COURT: Of the A. MR. SAGLE: Well, I think... THE COURT: As I indicated, I don't have a difficulty - I don't think I have a difficulty, at this point, in following and accepting the rationale that you're suggesting in respect of B. MR. SAGLE: Well, I think A, of course, was there originally. THE COURT: Yes. MR. SAGLE: And I think probably the idea of it being in public houses - even that's connected to morality, I suppose, that some things can be done in private that they don't want done in public. For example, my guess is back then women weren't allowed in public houses. I mean, they had senses of morality when this came into being that are hard to understand completely now, but my understanding is, my thinking is, the idea was that businesses and public houses, which are hotels and bars, and that kind of thing, they don't want the element, the immoral element, I suppose, being drawn into these places, where they become - I don't know what goes on when those kind of people get together in these places and drink beer and tell dirty stories, I suppose. I don't know. But I think it had an element of the public house and the element of bringing people into those places and the immoral element all combined. I do say this: If it's to be interpreted the way my friend says, it should certainly be said differently. I mean, why don't you just say that if you have a place kept for the playing of games from which gains are expected - I mean, this law could be, if it was meant to say that, could be real simple. We wouldn't be sitting here arguing about what this means if it (Crown coughing) and I think it would be clear by now, they would've changed it or they would've altered it to say what they wanted to say, that basically making gains from playing games is illegal. And that's the extent of it is to... THE COURT: Well, it is connected with... MR. SAGLE: I mean, playing games for gain is not illegal. They could've said that, I guess, if they meant it, but..... THE COURT: But it is connected to a place which is kept, as opposed to the playing of games. MR. SAGLE: And a place which is kept is only a place which is used permanently, temporarily, rented, owned, anything. It can be almost anything. But yes, I recognize that it's not easy to know. I mean, the truth is, I don't know exactly all the things they meant to cover. I do know that the courts have used it to cover certain things, and that the courts - nobody said, when they let Monroe go, or any of these other people, "Oh, wait, you won money; you're covered by A now; it looks like you got away from us on B, but you didn't strike anybody as being improper or wrong, that they had an advantage and that they could win money." Nobody said, "Gee, we'd better look at A and see if we can get you under that." It's never been used that way, and I think that does mean something because it's been used a lot, and people have looked at it and examined it, and it's been used quite often. But not in any of these cases has it ever been suggested that winning would keep you in there. They've gone to some great time to try and convict people... THE COURT: Isn't there a distinction, though - and I think Mr. Marin alluded to it in his submissions - between an individual such as Mr. Turmel, who is open and aboveboard and advertises... MR. SAGLE: Yes. THE COURT: ...and is not hiding or concealing in any way his actions, and a bunch of guys getting together in a basement or in a garage in a manner in which the gain may not be apparent and, therefore, from a prosecutorial point of view, it would seem clear that tactically the Crown would elect to proceed under B? MR. SAGLE: Well, it's possible. I guess none of the cases have said one way or the other. They haven't even examined it or looked at it, so it's really hard to know that any of those cases would've been easy to prove winnings or not. But certainly the very fact that you have a game where money is won and lost, there's always winnings. I mean, there is always winnings. THE COURT: Sure. MR. SAGLE: It's not a matter of - and if you have the advantage, which is allowed, for example, in Monroe and in Booth, where it was indicated that having an advantage by your skill is okay. Winning is okay. And yet, if winning is okay, then it's not gain, it seems to me. I mean, what we're saying here is that winning's not okay anymore. Or we're saying that winning's okay in the basement, but it's not okay here. And where do we get that kind of a train of thought from? There is a difference. The difference is that Mr. Turmel has organized, but that's not illegal and I don't think that we should, as the Crown may do, try and find something new when someone's become an entrepreneur and - as long as they fit and they are legal, we shouldn't be trying to find ways to make the law cover them. I mean, why would we? Is it immorality? Is it a terrible thing? Is there some act here that we have to try and stretch this to cover? I don't think so. And certainly the law can be changed if somebody else thinks so. And I recognize this is of some importance, given today's climate and the gaming and gambling that's going on, but I don't think it's the Court's job to try and legislate, to try and even alter legislation to cover something - I can say "harmless," and other people have a different idea about that - but really, now, it would only be to protect the government from individuals who want to do what they want to do. They can look after themselves. They can pass a law if they need to, to cover these things. I think, basically, we have to try and find a reason to do that, and I don't understand exactly how it was all intended when it was all started out. You know, this thing has been changed five or six times over the years, little things added, usually as a result of court cases which have so found for the people involved. So they changed the law. Right now, it's - I mean, what is it? It's a whole bunch of things that are almost unintelligible by reading the act itself, compared to the reality of what the courts have used it for. I think we ought to follow what the courts have used it for and not try and give it any more of a broad meaning than that. I don't think there's any need to and I think the idea of strict interpretation, given what we've looked at, ought to apply. This is a criminal case. This man will go to jail, basically, if he's found guilty of this. This is a penal statute of serious consequences. Money may be one thing, and what the government wants to do with gambling is another thing, but what we're talking about here is stretching this to restrict something, gaming, in a way that has never (Crown coughing) and putting the person in jail. I say, what's the motivation for that? Why should we do that? I don't think we should. I think the Court - the law's clear. We should be using strict interpretation in favour of an accused person when there's any doubt, and we may not know the answer, but all I am asking for is that there is a doubt on this. And he should get the benefit of that. THE COURT: Leaving aside the historical reasons, which again I think I'm probably inclined to agree with you on, as far as the morality background of the entire section, in what factual situations do you see A as being properly applicable? MR. SAGLE: I believe it's properly applicable in a case - just like in the cases it's been found in. I believe if somebody is in a hotel selling drinks or bringing people in to play games so they can sell more food - and I say proper; the truth is, I would have no trouble with those places being legal, to be honest, on a personal level, but I believe that that's how the Crown can prosecute right now... THE COURT: But why wouldn't the legislation want people to sell food? MR. SAGLE: Well, it's not selling food, I think; it's having the combination... THE COURT: What's wrong with that? MR. SAGLE: Well, the legislation doesn't stop you from selling food, actually; it only stops you from making a gain and having the place at the same time, a place for people to resort to play cards. THE COURT: Right. MR. SAGLE: I think it's all... THE COURT: Right. If we're looking to charge under A and somebody's selling and therefore making a gain as a result of having the game there, what's wrong with that? MR. SAGLE: Well, I think what you're doing is suggesting that the legislation looks at this tomorrow and asks itself that question. This act came into place 100 years ago, and ever since then it's just been there. And there's been all kinds of cases, and the Crown, the government, and of course the sense of immorality, has not just gone away. I mean, ten years ago, the Province of Ontario would've been thinking that gambling was a terrible thing as well. I think it's always been in the back of their mind, and any legislation they have, which is not even made up, you know, by legislators - this is all written up by the bureaucrats who put it in and change it - and they may not have even anticipated this. Because normally, you see, Section B catches him. Normally it catches him, except that the players let it happen. So he's found a niche in there that, my guess is, they never considered exactly. I don't think anybody in the legislature would say to you tomorrow, "Gee, there's something wrong with selling food," but this act - and they don't even look at this, they don't think about it. Probably nobody in this government, that sits there today, has read that and made the decision that you're asking me about now. It's just been there, and the Crown, who always prosecutes gambling when they get a chance... THE COURT: I realize I'm putting you in an awkward position to ask you to defend and justify something that you don't necessarily agree with, but my position is that I have to interpret the legislation. I have to analyze the factual situation that's been put before me and compare it to the legislative intent that arises from the section that Mr. Turmel is charged with. And I can't simply say, "Well, the legislation doesn't have a justification which is meritorious today." MR. SAGLE: I don't know if you can or not, Your Honour. I think that the fact is... THE COURT: If that's what you're asking... MR. SAGLE: ...there's no legislative intent to determine... THE COURT: ...me to do, I can't do that. MR. SAGLE: But let me just say that, in this page I gave you with respect to the principles of interpretation, etcetera, the weakest of these three principal things that you're supposed to look at, the one you're supposed to give the least concern to, is the matter of legislative intent. And it says because it's impossible, really. It's one of the most difficult things to determine because it's a fallacy to suggest that this legislation has any intent with respect to this section, after it came in such a long time ago. I mean, it's not real. It's not real to suggest that they have some specific thing mind, that your member of Parliament up here has some specific thing in mind that he's thinking about that section, and it's in there for a particular reason that he can think of. My guess is he hasn't seen - and if you asked him, he wouldn't have any answer either. So I think it's something that's not real. And I say this: Of the three things you're supposed to look at, this is the least in importance because it's the most difficult to determine. And as it says in here, "I can't tell, and I don't think anybody can tell, what it really was or is. We should look to the other two more important ways of trying to interpret this section; that is, the prospective and the retrospective of how the courts have dealt with it, and the prospective of what effect it will have." I mean, I think that that's the situation here and, even in a case of legislation of recent origins, where maybe you can read the stuff from Parliament or you can talk to someone who was there, I don't think - I think it's a fallacy to suggest that there is an ongoing intent of legislators through the years with respect to some small section of the Criminal Code. I don't think we should look for it. I don't think we should give it too much consideration. I don't think - we would just be guessing, and I don't think we should guess; I think we should go on to the other two methods that are set out as to how to do it, and, I suggest, also give consideration to the fact that it's a penal act which means that basically, because of the consequences involved in it, we should give it a strict interpretation, just like the courts have always done with these sections. It shouldn't, I believe, be too hard a sell to see that that's how they've done it, and there's no reason for us to change it and worry too much about exactly what the intent of that section is, if we know what it does. And I suppose we can say that it must be the intent, because that's what it does. Let's assume that the intent of it is just what it does: It prohibits - I mean, we can say why, or why is that the intent, next? Why do they want to not have gaming in places connected to selling food and liquor and these kinds of things? I don't know, but we can always ask another question in this area, because we won't have an answer, and so I agree with this, and I say it's an interesting point. It's a good question, but it ought not to be the focus of how we decide what the interpretation ought to be. We have other methods of determining it if that fails us. I mean, the truth is, it has been used to stop people from selling food. It has been. So I'm going to assume that's the intent of it. That's what the courts have said it does. That's what it means. So I'm willing to accept it. I don't think it should, necessarily, but that's what it does, and that's, I guess, what the intent is. THE COURT: Does that make sense? MR. SAGLE: You're asking if it makes sense. I can only say that I can't know the true answer to what the intent was, so I look at what evidence there is. The only evidence I have is what it does. I have no other evidence. And so I don't really want to make what the intent of the legislature was in that point to be the key of all this. But if I have to deal with it, then I say the only evidence I have is what it does. And I don't have anything else. And if you ask, "But why should they prevent food?" well, no matter what you find with respect to the winnings aspect of it, it does prevent the sale of foods. You know? And I would agree it shouldn't, but then that would be my intent, and I wouldn't have it that way. But somebody did, and somebody does, and the courts have interpreted it that way, and I think that's the best I can do with it. THE COURT: Thank you. Mr. Turmel? MR. TURMEL: Well, I have an awful lot to bring up, and I don't think I'll be able to finish it in an hour. If I just might make one comment in answer to your question, could we perhaps adjourn till early next week? THE COURT: Well, what you should do is - I'll recess for five minutes and counsel can go and see Mr. Matthews if you require more time next week. (OFF-RECORD DISCUSSION) MR. MARIN: Well, frankly, Your Honour, I'm not sure how long he'll need, but... MR. TURMEL: Two hours. MR. MARIN: Two hours? THE COURT: I don't know when we'll find the time, which is why I'm suggesting you go and see Mr. Matthews. MR. MARIN: All right, Your Honour. MR. TURMEL: Okay. THE COURT: I can tell you, I start a three-week preliminary on Monday. MR. SAGLE: I have a trial as well, so I guess sometime after you're back, it's going to... THE COURT: If you think it's going to be two hours and the Crown thinks that they will require some time, then we're probably talking realistically half a day. Well, I'm quite willing to sit. MR. TURMEL: No, it's just that, Your Honour, I came here, frankly, preparing to try and not have to argue Section A. That's why we basically looked at all the history of when it was used, and - quick point - why they would have Section A at all. I think it's simply to dissuade gambling. They wished to dissuade gambling by not allowing people to make a business of operating comfortable surroundings. I've found a way of doing so by picking up the tab personally, as a host treats guests, but otherwise, no one else could do this in a similar way without charging and, therefore, Section A would have been a grand way to dissuade a comfortable game. That was just to answer that question, but frankly I do have - I know I'm going to spend a lot of time talking about the Bonin decision. I didn't expect I would have to. And I did bring along the transcript of the 1989 trial before Judge Lennox, which I'd like to give you a copy of. Crown have a copy? MR. MARIN: The transcript of the entire thing? MR. TURMEL: Yes. MR. MARIN: No, I don't; I just have the decision. MR. TURMEL: You mean you charged me without looking at the transcript of the last trial? MR. MARIN: I don't think I have to answer that, Your Honour. MR. TURMEL: All right, anyway, if you could have a chance to - wow, I'm flabbergasted - but anyway, so there's 86 pages worth of details there, and the main purpose will be to show how analogous everything that happened here was there. You did ask me earlier, why would I think this was the same thing. The best way for me to show you is to show you what went on before Judge Lennox, and you'll realize that the same stream of questions I presented to Mr. Sheppard yesterday, the expert, and he came to the conclusion that everybody in the place was getting a fair game. The expert in 1989 came to exactly that same conclusion with exactly the same stream of questions. And that's why I'm kind of proud of showing how they are identical, because the transcripts are identical, even though they had different witnesses. So I do want to go into the Lennox transcript. I am going to want to get into, in opposition to the Bonin decision, I have here a decision of Justice Frenette of the Quebec Superior Court, and I'll give the Crown this one right away - I don't mind; I'll be bringing that up - as well as - now, this document here, which is called "Operation Blackjack," was handed in to the Crown, and, as Judge Lennox called it, it was sort of my declaration of war about how all this was going to work and how it would be done, and I notice that the Crown handed up the 30-page Appendix C that they were working from, as admitted, and the two pages of other admissions, and this seems to be the only document that the Crown did not include which had been admitted in its submissions, and I think it would be important for you to have the background of the Bonin decision and, therefore, my submission would be mainly based on this, so if you have the time to spend the hour and a half, at some point, to do this, then most of my Bonin thing will be quick and short. But again, I can tell you, this was submitted to the Crown and at pretrial, except you, for some reason, didn't get a copy of it. THE COURT: Mr. Marin, what's your position to my receiving the newspaper passage? MR. TURMEL: You mean you didn't read it? MR. MARIN: Well, frankly, Your Honour, it's a little late for the accused - I mean, before I started my submissions, I made it clear that... THE COURT: That's why I'm asking. MR. MARIN: I object to this. I mean... MR. TURMEL: It's okay. I can read it as... MR. MARIN: When the admissions were put in, Your Honour, if it would've been brought up - but this is new evidence and he's trying to enter it in reply to the Crown's submissions at the end of the case. That's improper. MR. TURMEL: That's no problem. I thought that the fact that the Crown had it earlier was on their onus to give it to you and show you, and the fact they chose to not show you the information they had, probably because they hadn't read it, maybe has - the point is, I can enter my arguments orally at that time, but there is 100 K of text here, and I do believe it would take an hour or two to get through it, reading and speaking - maybe I can speak it a little faster - so I do know it's going to take at least an hour on this, and probably a half hour on this, and 15 minutes on this, before I actually get into my concrete submissions. So at this stage, if the Crown doesn't want to accept this statement of mine, well, that's no problem. Maybe we can now take that adjournment and go see Mr. Matthews. THE COURT: I'll take five minutes. R E C E S S (4:18 p.m.) U P O N R E S U M I N G: (4:30 p.m.) CLERK OF THE COURT: Court is reconvened; please be seated. MR. MARIN: Your Honour, may I say something? THE COURT: Yes. MR. MARIN: Simply, first of all, just in case there's any misconception, my reply will be a maximum of five minutes. I'm ready to be timed on that. THE COURT: All right. MR. MARIN: As it stands. Quite frankly, Your Honour, we've been arguing all day, basically, on this case. Mr. Turmel has argued at length on the A section. We realize that much of the case law he brought was the same as the one I had. We were certainly on the same grounds in terms of case law. He knew, you know, since the beginning, or certainly for weeks, if not months, the Crown would be relying on the A section. The idea of getting in here and saying, "Well, I didn't know about this, I didn't know about that," well, he's represented by counsel today. His concern from the beginning was to get it over with, to argue his case, to make admissions, and now, frankly, he wants it put over to half a day of submissions and, quite frankly, in discussions with Mr. Matthews last week, he indicated that the first dates were in the fall, and Mr. Turmel does not seem to mind that, and it's a drastic change in the stance that he's taken since the beginning of the trial. So I'm going to be five minutes in my reply, Your Honour, and the Court has already indicated that you are prepared to plow through if that were the case, and certainly, subject to the Court's position on this again, if I may simply suggest that Mr. Turmel is here with counsel who is well apprised of the case law, who's argued all the previous motions before on his own, who's showed tremendous skill at his knowledge of the law and at arguing it, and should simply finish today. I'm prepared to stay. I'm certainly available to continue. Otherwise I think - we all have an interest in disposing of this matter, one way or another, and seeing that justice is done. I don't think we have an interest in postponing this to the fall in any stretch of the imagination. There are other cases pending before the courts right now, and certainly both sides, I presume, are anxious to get a pronouncement from the Court. So that's the Crown's position on that, Your Honour. THE COURT: Thank you, Mr. Marin. Thank you for agreeing to sit through. I'm certainly, as I've indicated, prepared to sit through and resolve the matter this evening, or this morning, or however long it takes. If the Defence are indicating that a further two hours is required, I would not force the Defence to proceed today, given the hour, but I'm certainly quite willing to sit through and hear the remainder of the evidence today. I can indicate that I have canvassed a possible date which would be the 23rd of March. It would be in the afternoon. It would be after another matter, so it would be subject to the time that it would take to complete the other matter. MR. TURMEL: Thank you, Your Honour. I'd like to say why I'm going to ask for this inconvenience. It was just yesterday that we found out there were going to be no betting house charges, and I can only say that my efforts over the last few months have been diffused into all these other areas, and I didn't give the full brunt of my attention to Section A. I'm operating on just four hours' sleep last night and two the night before, because there was a lot of work I did for Mr. Marin - he'll vouch for that - so frankly, I mean, I don't think I'll be able to do my best performance. I'm not optimally prepared. And this month will be exactly what I'll need, I think, to - you know, if for some reason this new interpretation is going to survive, I'll have given it my best shot, and this can't be it today. I'm just... THE COURT: All right, that's why I'd indicated that I have obtained another date. Certainly I'm quite prepared to sit through, but in fairness, it is late. It's been two days, and if Mr. Turmel requires further time, I'm certainly prepared to put the matter over, with the consent of the Crown, to the 23rd of March at two o'clock in the afternoon. That would be in Number - are you available on that date, Mr. Marin? I shouldn't have... MR. MARIN: Well, the difficulty is that I'm on a jury trial. THE COURT: You obviously have carriage of this matter; I shouldn't have assumed that you'd be available. MR. MARIN: That's all right, Your Honour. I'm on a jury trial upstairs the proceeding week, and it's supposed to continue till the Monday of that week, and, as Your Honour knows, these things are best estimates, and if it carries through, I may be in a position of conflict. I am not, at this present time, but I'd simply note that I may be stuck upstairs. THE COURT: I'll make a note, then, subject to the completion of the matter that you've started. Hopefully you'll be free. Otherwise, if you're not, then the Defence is on notice. MR. TURMEL: That's fine by me. MR. MARIN: I'm free now, as well. THE COURT: All right, the matter will go over - and other counsel - sorry, Mr. Sagle. MR. SAGLE: That's fine with me, Your Honour. THE COURT: It's late in the day; I'm obviously making all kinds of mistakes. The 23rd of March, then, at two o'clock in Number Four Court. As I've indicated, there is another matter that is scheduled for that date for three-quarters of the day. I'm attempting to start that matter at nine o'clock. What I hope to do is move the other matter up so that we can be able to start at two, and hopefully we can complete the matter on that day. Thank you. ********** C E R T I F I C A T I O N: THIS IS TO CERTIFY that the foregoing is a true report of the proceedings transcribed herein to the best of my skill and ability. N. PAUL WARBURTON (Certified Court Reporter) **********