From elastic!exorcist!lethe!geac!herboid!whome!infoshare!ican.net!news.sprintlink.net!howland.reston.ans.net!torn!news.ccs.queensu.ca!qed!huyert Wed Nov 29 07:16:52 1995 Xref: elastic can.general:22257 can.politics:26354 ont.general:19028 sci.econ:4685 sci.engr:3390 Path: elastic!exorcist!lethe!geac!herboid!whome!infoshare!ican.net!news.sprintlink.net!howland.reston.ans.net!torn!news.ccs.queensu.ca!qed!huyert From: huyert@qed.uucp (Timothy Huyer) Newsgroups: ont.general,can.general,can.politics,alt.conspiracy,sci.econ,alt.christnet.philosophy,nz.politics,sci.engr,aus.politics,uk.politics Subject: Re: TURMEL: On Social Credit vs Greendollars Followup-To: ont.general,can.general,can.politics,alt.conspiracy,sci.econ,alt.christnet.philosophy,nz.politics,sci.engr,aus.politics,uk.politics Date: 27 Nov 1995 22:53:23 GMT Organization: Department of Economics Lines: 361 Message-ID: <49dfh3$fo9@knot.queensu.ca> References: NNTP-Posting-Host: qed.econ.queensu.ca X-Newsreader: TIN [version 1.2 PL2] John Turmel (bc726@FreeNet.Carleton.CA) wrote: : On Nov 21 1995, in article #114196 in Newsgroups: can.politics, : huyert@qed.uucp (Timothy Huyer) wrote: I will attempt to deal with Turmel's positions by trying to cover briefly the various issues that he raises: (I) First, that interest is necessarily bad. Whereas it is clearly obvious that the borrower, all else being equal, will prefer lower interest rates, not all else remains equal. An example. Assume a two person-two period model, i.e., a model in which two people exist whose lifespan covers two periods. Assume no uncertainty. Let money be continuously divisable. All income goes to consumption, either in first or second periods. All goods are perishable (i.e., goods not consumed in period one are not available in period two). Let consumption by individual A or B be denoted C_Ai or C_Bi respectively, i=1,2 the period in which the consumption occurs. Let the first person, A, have a utility function U_A := (C_A1)^0.7*(C_A2)^0.3 and the second person, B, U_B := (C_B1)^0.6*(C_B2)^0.4 Finally, assume that each individual has wealth w_Ai=w_Bi=$5000, i=1,2, that is, each person in each period earns $5000. Clearly, each individual's utility without trade is 5000. The issue is whether it is possible for _both_ A and B to be strictly better off, i.e., for both U_A > 5000 and U_B > 5000 by a transaction. In fact, this is clearly possible, and there actually exists a locus of possible trades which alllows for both individuals to be strictly better off. Since A has greater preference for consumption in period 1, A could borrow money from B in period one and repay that money plus a premium to B in period 2. I will skip calculating out the locus of solutions, but it is straightforward to show that the premium constitutes an amount of interest, and that, at very low rates of interest, B is not willing to lend (since B's utility would then be below 5000) and at very high rates of interest A would not be willing to borrow. Rationality of assumptions. (1) Perfect information (no uncertainty). Clearly a very strong assumption, but one which simplifies the math enormously. The confident can, with the assistance of economics literature, look at math involved when uncertainty is introduced; however, the fundamental results in the simple model are not changed. (2) Multiple generations (i.e., more than 2 periods) are possible although needlessly complicate the math. Also more than 2 agents are possible. As more agents are added, the locus of mutually acceptable interest rates declines until, with infinite persons, a unique value exists. (3) Form of utility functions. It can be proven that agents with rational preference ordering (an ordering over a set of possible consumption bundles which is complete, transitive, and anti-symmetric) which are continuous are necessarily represented by a continuous utility function. Since utility is an ordinal ranking, the functions are equivalent over monotonic transformations. I arbitrarily chose a utility function which is mathematically very simple, but the results hold over more complex utility functions. Therefore, situations can occur under which mutual gains are made with positive interest rates. (II) Banks do not loan depositer's money. The bank system is basically a means of making the above market more accessible. By loaning or borrowing money through the intermediary -- the bank -- risk and transaction costs can be reduced. In a previous post, I attempted to demonstrate to some extent how money flows in the banking system. I will attempt to quickly repeat (and possibly improve on) that here. Let there be one central bank and one charter bank, and all individuals deposit all of their money in the charter bank (no one keeps any cash). All borrowing also occurs from the charter bank. The charter bank keeps a set fraction of deposits in reserves, i.e., a reserve ratio of r, 0 < r =< 1 and loans out the remainder. For the example, we will set r = 0.1 Let the central bank buy a bond from any individual for $1, and pays for the bond by the creation of new money, $1 (all central bank operations on the open market involve creation/destruction of new money). That person deposits the $1 in the charter bank. The charter bank puts $0.10, or r*$1 in reserves, and loans out the remainder, $0.90. That loan is used for some transaction and the recipient(s) of the money deposit it in the bank. This process repeats infinitely. Note that deposits in the charter bank is the series t=0->infinity, [$1*(1-r)^t], which, with r=0.1, has a value of $10. Reserves are necessarily r*deposits, or $1. Loans are the series t=0->infinity, [$0.90*(1-r)^t] or $9. Thus, liabilities of the bank (deposits) are $10 which equals assets (loans + reserves). All loans are covered by deposits and then some. Boundedness of r. I assumed earlier that r is in (0,1]. Note that it is impossible to maintain greater reserves then deposits, since all reserves come from deposits. Hence r is bounded above by 1. Note that the two series converge only if 1 - r < 1, which thus requires that r > 0. If the reserve ratio is zero or negative (the latter if banks created their own money), the money supply would be infinite. With infinite money pursuing a finite amount of goods and services, it follows that prices, i.e., inflation, is also infinite. Additional comment on the reserve ratio. The assumption that depositors keep no cash is very strong. In fact, people keep some function of their total wealth in cash on them; i.e., if wealth is w, cash held is f(w|e), 0 =< f(w|e) =< w (f(w|e) need not be linear), where e is some environment. e can be conceived as needs for cash not tied directly to wealth, i.e., if planned major expenditures are occuring or other environmental considerations. From the perspective of the bank which cannot perceive e, aggregating over all depositors gives an estimate of a random variable which represents the unknown demand for cash. Since banks must meet the demand for cash they keep reserves in order to cover the expected demand plus extra to cover risk. How do banks then choose r? Obviously, it depends on the expected value and variance of e. However, the charter banks also can borrow money directly from the central bank (the loaner of last resort) at the bank rate. Thus banks choose to minimize the cost of holding reserves (measured in terms of possible income from loaning out the money) and the costs of borrowing from the central bank (measured in estimated short-fall of reserves*bank rate). Clearly, as the bank rate falls, so too falls the cost of borrowing from the central bank, and thus charter banks are less inclined to keep reserves -- reserve ratio falls, money supply increases. The reverse if the bank rate rises. It is much more complex to establish, although many of the necessary conditions have already been established, that the rate of interest is such that reserves cover interest, which, if I follow Turmel's arguments correctly, contradicts his claim that there is a shortage in the money supply. The (charter) banker here has not added any money to the pot, which is a correction of an error that I had made many many weeks ago and one which Turmel repeatedly brings up. (III) Turmel proposes, in effect, abolishment of the charter banks and private lending (via the banks or otherwise) in favour of loaning directly from the central bank at zero interest. Since the central bank can literally create money, it does not need any deposits to cover the loans. Note that as in (I), there is no incentive for anyone to loan at 0% interest (besides altruism). Even changing B's utility function to something like U_B := (C_B1)^0.4*(C_B2)^0.6 would mean that B would simply choose to save his/her own money at 0% interest and has no incentive to loan that money out (and with positive risk on default, incentive exists to not loan money out). Turmel restricts the infinite supply of money case by holding the supply of money equal to collateral. In a sense we can view collateral to be (real) GDP -- if money supply always equals real GDP, then there is no inflation -- there is neither too much money chasing too few goods or too few goods chasing too much money -- and similarly no deflation. This is already what central banks attempt to do when they decide by how much to increase the money supply, and the inflation that we have is simply the error resulting from incorrectly estimating the growth of real GDP (the error is consistently biased positive since too little money causes a recession, which is much worse than a little inflation). Since estimation procedures are unlikely to be better under Turmel's system than present, inflation would still exist. Is there an equilibrium in Turmel's model? Note that in (I), with the original utility for B, both A and B would want to borrow money at 0% interest. Note that in (I), any equilibrium would have C_Ai + C_Ai = w_Ai +w_Bi, i=1,2; consumption equals supply in each period. With both A and B being net borrowers in period 1, C_A1 + C_B1 > w_A1 + w_A2 and the reverse for period 2. Demand exceeds supply in period one and the reverse in period 2. Simple economics notes then that prices will rise in period one and fall in period 2. But if the agents take prices as given, then there still would not be an equilibrium. If agents understand their impact on prices, then the change in prices is implicitly equivalent to interest and an equilibrium is possible. Note that when I commented on the LETSystem and implicit interest within prices a similar argument holds for that. The above paragraph follows from the simple reality that consumption is specific to certain time periods. Note that money borrowed in period one is backed by collateral from period two. Should the central bank restrict the money supply such that the total supply of money in each period is backed by goods and services within that period, then no borrowing from the central bank can occur - the model (I) already has that equality established in both periods. However, we shall allow for the supply of money to be less than the supply of goods and services. For simplcity, then, assume that the supply of money is zero. First, note that the exchanges of goods is still entirely possible as a barter system. Let any good which has non-zero value (i.e., is demanded by some individuals) be considered the numeraire, the good by which all other good's prices are established. I.e., if we let apples be the numeraire, then other goods are worth x apples. Under the barter system, the solution in (I) still occurs. I had mentioned before in other posts that with n goods, prices form an n-1 dimensional simplex, and this is the logic that holds true. Simply, it is only the relative prices that matter, not the absolute prices. But let everyone borrow $5000 from the central bank each period at 0% interest. Note that from that point, both A and B can make mutual gains by loaning to each other following exactly the same logic used in (I). A note on rationality. For an agent (an agent is an economic decision making unit, i.e., an individual, household, firm, etc.) to be rational, that agent must be trying to maximize an objective function subject to constraints. For the case of the individual or household, that objective function is to max utility and the constraints are (real) wealth. Rational people can still do what anyone else might consider to be "stupid". Utility functions need not be identical across individuals, nor need information sets. I could be stupid enough to think that an IBM 286 is better than a Pentium machine, but I would still be rational if I chose to buy the IBM 286 even if it cost more. Rational people can make mistakes. However, rational people also learn. The cliche that "you can't fool all of the people all of the time" is true. As agents aquire information, they change their actions resultingly, all according to their objective function. In particular, if anyone repeatedly attempts something and it does not achieve the expected results, they will learn and try something else. I called Turmel's watches and toothpick model irrational since, in a perfectly random game, each agent expects to get 10 toothpicks back (what they started with) and thus not be able to buy back their collateral. That is to say, each agent expects to be strictly worse off as a result of playing the game. Clearly, some people can be foolish enough to not realize that the game is stacked against them. However, over time, more and more people will realize that playing the game is stupid, and the equilibrium result will be no one plays the game. Thus, if the mortgage system really behaves as Turmel suggests in that model, then it can be expected that, within a reasonable learning time, everyone will stop playing, and there would not be any mortgages undertaken. Turmel thus needs a very compelling reason why agents will continue to play the game -- i.e., a reason that makes playing the game rational. Finally, on the creation of money. Note that fundamentally, the creation of money first occurs when the central bank creates money in an open market transaction. One could state, technically, that only the amount of money created by the central bank actually exists. But the amount of money in deposits (and the amount loaned) greatly exceeds the amount of money physically in existence. Hence the various definitions of money, M1, M2, M2+, M3, etc.. One could also argue that, since the money circulates multiple times through the charter banks and that, each time it loops back, deposits and loans increase, that the charter banks are also creating money, although they are not creating any physical currency or M1. This is probably why the explanation as to who creates money is often vague. Fundamentally, it is always the central bank. Even stating that charter banks create money since, after the money goes through a charter bank deposits (a measure of money) increases, the total money supply is still determined as a/r, where a := the amount of money created by the central bank. : Pretty good argument for linear service charges for our loans. : Now we pay $100 on the $1,000 transaction and $100,000 on the : $1,000,000 transaction. Every year. I'd rather pay the $15 service : charge one for both. If the linear service charge is r*loan, 0 < r < 1, charged per period, say, annually, then over multiple years we have exponential, or compound, interest. Thus either your system is not linear or the current system is. : And if it's only part of the problem, why would I not still be : correct in criticizing economic systems? Why does the problem have to : "_simply and only-" the lack of money and not just a component of the : problem. Shall it be discarded because it doesn't solve everything all : at once but only one small part of the market mechanism? Actually, it : does solve everything all at once. I was simplifying myself. I will allow, if the scarcity of money -- distinct from the scarcity of goods and services -- is part of the problem, then Turmel's criticisms have at least some validity. : To say scarcity occurs in nature and therefore not in the money : supply needs remedial Boolean algebra. Scarcity can and does occur in : both real life and in the money supply. One is real, one is : artificial. Looking at the real scarcity will not help you in your : examination of the artificial one we're discussing here. Well, take the (among economists) famous Fisher equation: M*V = P*T Where M := supply of money, V := velocity of money, P := prices, and T:= transactions. The equality holds obviously --> all goods and services that are sold are sold at some price and that price must come from some money. Since money circulates, each dollar is used in more than one transaction, and hence the velocity of money is important. If V is constant, as it normally is, and M is set by the central bank as it always is, we can use d to represent delta, for discrete changes. If dM > dT, then dP > 0 (too much money chasing too few goods causes prices to rise). Clearly the reverse also holds. Note similarly for changes in transactions being the first result. The above of course skips whether T is a function of M, but that is not relevant in this simple case. Note that for any finite T and any V > 0, infinite money (i.e., no scarcity in money) only results in infinite prices. In fact, for any fixed T and V, increasing the money supply necessarily only increases prices -- which is why I claimed that scarcity of goods and services is the only problem and not supply of money. : No, lowering the interest rate does not lower the bank's reserve : ratio. Yes vice versa. The reserve ratio has been defined in : legislation by Parliament. Cutting it allows for more and therefore : cheaper borrowing into circulation. But whatever then happens in : circulation has no effect on the rate the Banker sets. Subsequent to the last amendment of the Bank Act, which occured under Mulroney's govt, the minimum legislated reserve ratio was abolished. This was done in part since charter banks were always maintaining reserves greater than the minimum ratio. : But you don't comment on whether I used my plumbing model : correctly enough to have a pedagogical value in economics. We know it : works for engineers. You tell us it also works for economists. Did it : work for John The Engineer? Models only work if reasoanable assumptions are made and if the math is valid. Certainly a plumbing model can have valid mathematics and is thus of potential pedagogical value. However, I have attempted to note many of the fundamental failures in Turmel's analysis which makes those models incorrect. Now incorrect models can still have pedagogical value (i.e., assignment question: Is the following a correct model -- explain fully), and, as such, Turmel's models might still find their way into an economics classroom. In fact, I hope that Turmel is clever enough to see that a plumbing diagram could be constructed from the model that I presented of the banking system. Let money be injected from a tap, the central bank, into a charter bank. Let the reserve ratio of the money go to the reserves, the rest goes to loans which loops back into the charter bank. Using liquid to represent money, if we measure the volume of liquid that enters the bank either from the central bank or from deposits (allows liquid to be double-counted) and the volume that is loaned out, we will find that the volume of liquid deposited is 1/r, the volume of liquid loaned is (1-r)/r, the volume of liquid in reserves (which is the reservoir of all money) = 1. I haven't used any fancy diagrams, but I figure most people who can use internet can handle that much for themselves. : And who to better understand the usury banking system than the : engineer who first drew its Laplace Transform Control Circuit? Check : it out in my Mathematics of Usury. Other engineers have vouched for : it. I commented a while ago that mathematics + bullshit = bullshit. The same holds true for economics. I have no doubts that the math in your models is correct, it is the underlying economic assumptions which I am challenging. : You're not supposed to continue to not understand when there's a : working model for you to get on and pedal. I would have to say ditto for the current system. : If the non-existence of interest cannot be sufficiently : demonstrated when it's been designed out of the blueprint, then : you've got your eyes closed. I call this "judicial disease." Economics, at the very least, attempts to follow scientific methodology. Scientists like to isolate out other possible causes in order to sufficiently prove that two things are positively related. Economists don't often have the normal luxury of doing experiments with control groups, but nevertheless attempt to use the same concept in our methodology. Hence, the cateris paribus (all else being equal) statement that we use. Hence models that unambiguously show the isolated effect. Because of scientific methodology, science is generally more reliable than speculation or opinion. If Turmel wishes to merely use opinion versus economic science and claim that opinion carries more weight, then I see no reason for continuing in this thread. -- Tim Huyer, Graduate Studies | "Masters are always and everywhere Department of Economics | in a sort of tacit, but constant and Queen's University, Canada | uniform combination, not to raise the huyert@qed.econ.queensu.ca | wages of labour above their actual 4th8@qlink.queensu.ca | rate." Adam Smith - My opinions do not necessarily reflect my views or those of anyone else - From elastic!exorcist!lethe!gts!whome!infoshare!news1.fonorola.net!fonorola!centaur.achilles.net!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Jul 2 09:25:44 1995 Xref: elastic can.general:2031 can.gov.general:186 can.politics:2141 can.taxes:147 ont.general:2210 sci.econ:1101 tor.general:1936 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!exorcist!lethe!gts!whome!infoshare!news1.fonorola.net!fonorola!centaur.achilles.net!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: The Third Way Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Fri, 30 Jun 1995 01:19:34 GMT Lines: 109 Subject: Re: TURMEL: The Third Way fche@elastic.org (Frank Ch. Eigler) wrote: >John Turmel (bc726@FreeNet.Carleton.CA) wrote: >: That's what I've always said. As the debts come due, they are >: paid off. [...] >John, how do you propose to convince non-nationals to accept >payment by poker chips? If the poker chips are accepted through the whole country and backed up one-to-one with wheat, oil, metals, I think they would prefer a $1,000 receipt which can purchase the same asset today and next year rather than a $1,000 bill which can purchase that asset today buy but less next year after inflation. Just because I say that the Canadian money system should be run on the same algorithm doesn't mean they have to look like Poker chips. They should look just like Canadian money looks today in which case, the only difference would be that their value would be stabilized. >Also, are you not worried that the interest free one-to-one >collateral scheme would limit the availability of credit? >Companies would not be able to borrow money against future >income (as opposed to backing loans by their existing >capital). > There's no reason money-chips cannot be loaned against future income. It's the same as a casino issuing chips based on collateral offered and based on the borrower's marker. His promise to pay. So though backing up loans by their existing capital is a start, so is backing it up with future income. >The interest system encourages adventurous bankers >to issue money for such enterprises, at an appropriate level >of risk and reward to the banker. > But the interest itself creates the risk which is why mort- gage comes from the French words "mort" and "death." If everybody borrows 10 and everybody owes 11, the demand for the 11th token of money which was never put into circulation creates an automatic shortage which causes foreclosure of the losers. In my earlier "Mathematics of Debt Slavery" post, you'll notice the examples of "Interest Island" versus "Service charge Island": GAME MODEL: SERVICE CHARGE VS. INTEREST In his book `The Theory of Games and Economic Behavior', John Von Neumann, one of this century's top mathematicians, stated that "important questions in economics arise in a more elementary fashion in the theory of games." In the business war for markets, the economy decides who sells their goods and who fails to. Models used by economists are flawed by guesses and approximations about what the economy will choose. The only way to perfectly model the economy is to use fair chance to pick the winners and losers. TO PLAY MORT-GAGE: The necessary game equipment for "mort-gage" is 1) a box to represent the market economy); 2) 3 types of tokens to represent food, shelter, and energy (the tokens can be mints, napkins, cutlery); 3) a fair chance mechanism like a coin, cards, dice, straws, etc.; 4) matches or tokens to represent currency. In the Interest Game, all owe the bank 11 for every 10 tokens they borrow and have to inflate their prices to repay both the principal and the interest. Step 1) Have all the players wishing to get into business pledge their watches to borrow 10 matches from the bank at an interest rate. Step 2) Have all players spend 10 matches into the market box in exchange for a token representing the product of the economy's labor. Step 3) Have pairs of players, those with similar tokens first, use chance to decide which will win a market share out of the box large enough to pay the principal and the interest necessary to survive the bank's demand. Step 4) When the market runs out of currency, let the bank seize the tokens and watches of the losers. Step 5) Record the percent of those knocked into unemployment and the collateral seized. In the Service Charge Game, all owe 11 for every 11 they borrow with the 11th paid immediately to the bank employees as a service charge. Step 1) Have all the players wishing to get into business pledge their watches to borrow 11 matches from the bank. Step 2) Have all players spend 11 matches into the market box in exchange for a product token, 10 for the services of those who produce the goods like on Interest Island, but also 1 for the services of the bank employees who facilitated the transactions. Follow Step 3), 4) and 5) and note that in the Service Charge Game, unlike in the Interest Game, everybody can sell all their goods because the 11th unit of money entered the market through the bank employees. The very subtle difference between systems is that in the Interest Game, the bank demands payment of money it did not create while in the Service Charge Game, the bank demands payment of money it did create. With exactly enough markets to match the prices of goods produced, there can be no foreclosures. I hope this analysis has helped clear up many of the formerly misrepresented and misunderstood aspects of the usury banking system as well as explain why usury has been condemned throughout history as the greatest crime against humanity. It's the only thing standing between mankind and abundant salvation. I hope this simple demonstrattion shows how service charge loans do not create a death-gamble with a determinable percentage of losers like usury and where every producer may survive. John "The Engineer" Turmel From elastic!fche Sun Jul 2 09:25:52 1995 Xref: elastic can.general:2008 can.gov.general:183 can.politics:2138 can.taxes:144 ont.general:2190 sci.econ:1050 tor.general:1913 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!fche From: fche@elastic.org (Frank Ch. Eigler) Subject: Re: TURMEL: The Third Way Followup-To: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ X-Newsreader: TIN [version 1.2 PL2] Organization: Elastic BBS, Toronto, Canada Message-ID: References: Cc: fche@elastic.org Date: Wed, 28 Jun 1995 12:10:17 GMT John Turmel (bc726@FreeNet.Carleton.CA) wrote: : [...] : That's what I've always said. As the debts come due, they are : paid off. [...] John, how do you propose to convince non-nationals to accept payment by poker chips? Also, are you not worried that the interest free one-to-one collateral scheme would limit the availability of credit? Companies would not be able to borrow money against future income (as opposed to backing loans by their existing capital). The interest system encourages adventureous bankers to issue money for such enterprises, at an appropriate level of risk and reward to the banker. -- Frank Ch. Eigler // fche@elastic.org // eigler@vnet.ibm.com // fche@db.toronto.edu From elastic!exorcist!lethe!gts!whome!infoshare!news1.fonorola.net!fonorola!centaur.achilles.net!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Mon Jul 3 09:54:22 1995 Xref: elastic can.general:2031 can.gov.general:186 can.politics:2141 can.taxes:147 ont.general:2210 sci.econ:1101 tor.general:1936 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!exorcist!lethe!gts!whome!infoshare!news1.fonorola.net!fonorola!centaur.achilles.net!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: The Third Way Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Fri, 30 Jun 1995 01:19:34 GMT Lines: 109 Subject: Re: TURMEL: The Third Way fche@elastic.org (Frank Ch. Eigler) wrote: >John Turmel (bc726@FreeNet.Carleton.CA) wrote: >: That's what I've always said. As the debts come due, they are >: paid off. [...] >John, how do you propose to convince non-nationals to accept >payment by poker chips? If the poker chips are accepted through the whole country and backed up one-to-one with wheat, oil, metals, I think they would prefer a $1,000 receipt which can purchase the same asset today and next year rather than a $1,000 bill which can purchase that asset today buy but less next year after inflation. Just because I say that the Canadian money system should be run on the same algorithm doesn't mean they have to look like Poker chips. They should look just like Canadian money looks today in which case, the only difference would be that their value would be stabilized. >Also, are you not worried that the interest free one-to-one >collateral scheme would limit the availability of credit? >Companies would not be able to borrow money against future >income (as opposed to backing loans by their existing >capital). > There's no reason money-chips cannot be loaned against future income. It's the same as a casino issuing chips based on collateral offered and based on the borrower's marker. His promise to pay. So though backing up loans by their existing capital is a start, so is backing it up with future income. >The interest system encourages adventurous bankers >to issue money for such enterprises, at an appropriate level >of risk and reward to the banker. > But the interest itself creates the risk which is why mort- gage comes from the French words "mort" and "death." If everybody borrows 10 and everybody owes 11, the demand for the 11th token of money which was never put into circulation creates an automatic shortage which causes foreclosure of the losers. In my earlier "Mathematics of Debt Slavery" post, you'll notice the examples of "Interest Island" versus "Service charge Island": GAME MODEL: SERVICE CHARGE VS. INTEREST In his book `The Theory of Games and Economic Behavior', John Von Neumann, one of this century's top mathematicians, stated that "important questions in economics arise in a more elementary fashion in the theory of games." In the business war for markets, the economy decides who sells their goods and who fails to. Models used by economists are flawed by guesses and approximations about what the economy will choose. The only way to perfectly model the economy is to use fair chance to pick the winners and losers. TO PLAY MORT-GAGE: The necessary game equipment for "mort-gage" is 1) a box to represent the market economy); 2) 3 types of tokens to represent food, shelter, and energy (the tokens can be mints, napkins, cutlery); 3) a fair chance mechanism like a coin, cards, dice, straws, etc.; 4) matches or tokens to represent currency. In the Interest Game, all owe the bank 11 for every 10 tokens they borrow and have to inflate their prices to repay both the principal and the interest. Step 1) Have all the players wishing to get into business pledge their watches to borrow 10 matches from the bank at an interest rate. Step 2) Have all players spend 10 matches into the market box in exchange for a token representing the product of the economy's labor. Step 3) Have pairs of players, those with similar tokens first, use chance to decide which will win a market share out of the box large enough to pay the principal and the interest necessary to survive the bank's demand. Step 4) When the market runs out of currency, let the bank seize the tokens and watches of the losers. Step 5) Record the percent of those knocked into unemployment and the collateral seized. In the Service Charge Game, all owe 11 for every 11 they borrow with the 11th paid immediately to the bank employees as a service charge. Step 1) Have all the players wishing to get into business pledge their watches to borrow 11 matches from the bank. Step 2) Have all players spend 11 matches into the market box in exchange for a product token, 10 for the services of those who produce the goods like on Interest Island, but also 1 for the services of the bank employees who facilitated the transactions. Follow Step 3), 4) and 5) and note that in the Service Charge Game, unlike in the Interest Game, everybody can sell all their goods because the 11th unit of money entered the market through the bank employees. The very subtle difference between systems is that in the Interest Game, the bank demands payment of money it did not create while in the Service Charge Game, the bank demands payment of money it did create. With exactly enough markets to match the prices of goods produced, there can be no foreclosures. I hope this analysis has helped clear up many of the formerly misrepresented and misunderstood aspects of the usury banking system as well as explain why usury has been condemned throughout history as the greatest crime against humanity. It's the only thing standing between mankind and abundant salvation. I hope this simple demonstrattion shows how service charge loans do not create a death-gamble with a determinable percentage of losers like usury and where every producer may survive. John "The Engineer" Turmel From elastic!elastic.org!fche Mon Jul 3 10:04:03 1995 Xref: elastic can.general:2068 can.gov.general:192 can.politics:2147 can.taxes:153 ont.general:2246 sci.econ:1143 tor.general:1974 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!elastic.org!fche From: fche@elastic.org (Frank Ch. Eigler) Subject: Re: TURMEL: The Third Way Followup-To: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ X-Newsreader: TIN [version 1.2 PL2] Sender: news@elastic.org (C-News System) Organization: Elastic BBS, Toronto, Canada Message-ID: References: X-Nntp-Posting-Host: elastic.org Date: Mon, 3 Jul 1995 13:54:12 GMT John Turmel (bc726@FreeNet.Carleton.CA) wrote: : [...] : >Also, are you not worried that the interest free one-to-one : >collateral scheme would limit the availability of credit? : >Companies would not be able to borrow money against future : >income (as opposed to backing loans by their existing : >capital). : There's no reason money-chips cannot be loaned against : future income. It's the same as a casino issuing chips based on : collateral offered and based on the borrower's marker. His : promise to pay. So though backing up loans by their existing : capital is a start, so is backing it up with future income. But, I thought, backing the poker chips against present physical capital was your means of ensuring that their value does not decrease. If I can start borrowing against my future income, wouldn't the money supply explode just as with fractional reserve banking, or interest-based loans, leading to similar inflation? In fact, isn't borrowing money against money equivalent to the present system? : >The interest system encourages adventurous bankers : >to issue money for such enterprises, at an appropriate level : >of risk and reward to the banker. : But the interest itself creates the risk which is why mort- : gage comes from the French words "mort" and "death." : If everybody borrows 10 and everybody owes 11, the demand : for the 11th token of money which was never put into circulation : creates an automatic shortage which causes foreclosure of the : losers. [...] But there is no burden on anyone to ensure that everyone must be a winner. The losers get there because they generally deserve to. Besides, it is never the case that `everybody borrows 10 and everybody owes 11' in the present banking system. The banks, being members of the `everybody' set, borrow 11 and owe 10, balancing the numbers. : [...] : GAME MODEL: SERVICE CHARGE VS. INTEREST : [...] The only way to perfectly model the economy is to use fair : chance to pick the winners and losers. Are you saying that the market is completely random? What of competitive advantage? : [...] : In the Interest Game, all owe the bank 11 for every 10 tokens they : borrow and have to inflate their prices to repay both the principal : and the interest. : Step 1) Have all the players wishing to get into business pledge their : watches to borrow 10 matches from the bank at an interest rate. Already the same flaw appears. The bank *is* one of the players. : [...] : I hope this analysis has helped clear up many of the formerly : misrepresented and misunderstood aspects of the usury banking system : as well as explain why usury has been condemned throughout history as : the greatest crime against humanity. It's the only thing standing : between mankind and abundant salvation. [...] These claims are downright silly. -- Frank Ch. Eigler // fche@elastic.org // eigler@vnet.ibm.com // fche@db.toronto.edu From elastic!exorcist!lethe!gts!westonia!pagesat.net!news.uoregon.edu!gatech!swrinde!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Fri Jul 7 07:54:31 1995 Xref: elastic can.general:2101 can.gov.general:203 can.politics:2159 can.taxes:164 ont.general:2279 sci.econ:1236 tor.general:2007 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!exorcist!lethe!gts!westonia!pagesat.net!news.uoregon.edu!gatech!swrinde!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: The Third Way Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Thu, 6 Jul 1995 03:45:25 GMT Lines: 113 Subject: Re: TURMEL: The Third Way fche@elastic.org (Frank Ch. Eigler) wrote: John Turmel (bc726@FreeNet.Carleton.CA) wrote: >: [...] >: >Also, are you not worried that the interest free one-to-one >: >collateral scheme would limit the availability of credit? >: >Companies would not be able to borrow money against future >: >income (as opposed to backing loans by their existing >: >capital). > >: There's no reason money-chips cannot be loaned against >: future income. It's the same as a casino issuing chips based on >: collateral offered and based on the borrower's marker. His >: promise to pay. So though backing up loans by their existing >: capital is a start, so is backing it up with future income. > >But, I thought, backing the poker chips against present physical >capital was your means of ensuring that their value does not >decrease. If I can start borrowing against my future income, >wouldn't the money supply explode just as with fractional reserve >banking, or interest-based loans, leading to similar inflation? >In fact, isn't borrowing money against money equivalent to the >present system? > Yes, the present system allocates credit on people's collateral and on their word. The present Greendollar systems allocate Greendollar credit on the basis of only their word. Yet, this doesn't cause any inflation because the credit is backed up one-to-one with a promise to pay which is valued at the same value as collateral. Besides, what do you do with the money you borrowed? Your debt account went up and your cash account went up. You purchased things meaning that though your cash account went down and your asset account went up. What do people who have sold you something do with that new money. Their cash account went up and their asset account went down. Then they paid their debts incurred for the production and their cash account went down and their debt account went down. The net result is that you owe the system instead of the person who supplied you with the asset. Quite equitable and with no eventual change to the money supply so why should there be any inflationary shift? >: >The interest system encourages adventurous bankers >: >to issue money for such enterprises, at an appropriate level >: >of risk and reward to the banker. > >: But the interest itself creates the risk which is why mort- >: gage comes from the French words "mort" and "death." >: If everybody borrows 10 and everybody owes 11, the demand >: for the 11th token of money which was never put into circulation >: creates an automatic shortage which causes foreclosure of the >: losers. [...] > >But there is no burden on anyone to ensure that everyone must be >a winner. The losers get there because they generally deserve >to. > I draw a distinction between people becoming losers because they're lousy producers and people becoming losers due to a fixed rule of the game. 10 robots all borrow $100,000 to buy the wherewithall to produce identical shoes. All 10 robots owe $110,000 and hence must price their shoes at $110,000. The economy which has received 10x($100,000) paid by the robots for the production of the shoes can only but 10x($100,000) out of a total prices of 10x($110,000) leaving $100,000 worth of shoes unsold. One of the robots must fail and be foreclosed on and it is not a case of bad management so that it deserves to be the loser. One of the robots is foreclosed upon because there was insufficient money issued into circulation to purchase all the shoes. It is this fixed amount of failure with no regard to good or bad management that I object to. Of course, looking at the good or bad management masks the fact that there is a ratio of producers pushed into foreclosure independent of their management. >Besides, it is never the case that `everybody borrows 10 and >everybody owes 11' in the present banking system. The banks, >being members of the `everybody' set, borrow 11 and owe 10, >balancing the numbers. > Please. This is a first. Borrowing 11 and owing 10? I've heard of bankers getting preferential interest rates borrowing $100 and owing $101 while everyone else would owe $110 but I've never heard of anyone borrowing 110 and owing 100. And even if somehow some bankers could do that, it certainly wouldn't be anywhere close to the volume of loans that go to the mass of borrowers in the economy. You'd better provide some proof as right now I think it's a pretty ridiculous statement. >: [...] >: GAME MODEL: SERVICE CHARGE VS. INTEREST >: [...] The only way to perfectly model the economy is to use fair >: chance to pick the winners and losers. > >Are you saying that the market is completely random? What of >competitive > No, but I'm saying that to fairly model the economy, it is better to use a fair gamble, model the test thousands of times and use statistical analysis to derive the general result than to guess at variables in an econometric model. Why, are you saying Von Neumann was wrong when he said that "important question in economics arise in a more elementary fashion in the theory of games?" John "The Engineer" Turmel From elastic!fche Sat Jul 8 00:58:55 1995 Xref: elastic can.general:2106 can.gov.general:208 can.politics:2164 can.taxes:169 ont.general:2284 sci.econ:1242 tor.general:2012 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!fche From: fche@elastic.org (Frank Ch. Eigler) Subject: Re: TURMEL: The Third Way Followup-To: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ X-Newsreader: TIN [version 1.2 PL2] Organization: Elastic BBS, Toronto, Canada Message-ID: References: Date: Fri, 7 Jul 1995 12:25:41 GMT John Turmel (bc726@FreeNet.Carleton.CA) wrote: [...] : >[...] : >If I can start borrowing against my future income, : >wouldn't the money supply explode just as with fractional reserve : >banking, or interest-based loans, leading to similar inflation? : >[...] : [...] : Besides, what do you do with the money you borrowed? Your : debt account went up and your cash account went up. You purchased : things meaning that though your cash account went down and your : asset account went up. Well, if I were playing with your proposed system, I could borrow money now against my entire lifetime's earnings, and spend it all. If others do the same, we'd have an explosion of the money supply, no? Immediate inflation, no? (And corporations have no lifetimes to limit them.) : [...] : >Besides, it is never the case that `everybody borrows 10 and : >everybody owes 11' in the present banking system. The banks, : >being members of the `everybody' set, borrow 11 and owe 10, : >balancing the numbers. : : Please. This is a first. Borrowing 11 and owing 10? I've : heard of bankers getting preferential interest rates borrowing : $100 and owing $101 while everyone else would owe $110 but I've : never heard of anyone borrowing 110 and owing 100. : [...] : You'd better provide some proof as right now I think it's a : pretty ridiculous statement. Okay, by example. Person A invests $200 in Bank B. It promises to pay him 5% interest. (Thus the bank borrows $200, owes $210, so far). Bank B makes a loan of $200 to person C. It charges that person 10% interest. (Thus the bank has a new $220 as a debit, $20 profit) In total, the bank `borrowed' $200+$20, but owes $210. In other words, the borrow/owe relationship is inverted for a net lender when compared with a net borrower. : >Are you saying that the market is completely random? What of : >competitive : [...] : Why, are you saying Von Neumann was wrong when he said that : "important question in economics arise in a more elementary : fashion in the theory of games?" The theory of games does not use randomness in every problem. A `game' != `game of chance'. -- Frank Ch. Eigler // fche@elastic.org // eigler@vnet.ibm.com // fche@db.toronto.edu From elastic!exorcist!lethe!gts!geac!reptiles.org!io.org!interlog.com!usenet.eel.ufl.edu!gatech!news.mathworks.com!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Jul 9 12:47:15 1995 Xref: elastic can.general:2125 can.gov.general:213 can.politics:2169 can.taxes:174 ont.general:2303 sci.econ:1285 tor.general:2031 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!exorcist!lethe!gts!geac!reptiles.org!io.org!interlog.com!usenet.eel.ufl.edu!gatech!news.mathworks.com!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: Why did Christ speak in parables? Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Sat, 8 Jul 1995 03:40:08 GMT Lines: 300 Subject: Re: TURMEL: Why did Christ speak in parables? graham@cyclops.iucf.indiana.edu (Jim Graham) wrote: >John Turmel (bc726@FreeNet.Carleton.CA) wrote: > >> If they are that easy to understand, why are there so many >> different interpretations? And none dealing with his stated >> reason for why he spoke in parables? > >Precisely. Christ did not speak in parables to make difficult >concepts EASIER for the masses to grasp. He spoke in parables so >that the masses did NOT understand, unless they were "ready". >In short, he spoke in parables to confuse the masses, as they >were not yet prepared within their hearts and spiritually to >follow him. At least that's how I remember the reason for >parables. >Jim Graham > Thanks Jim. I was only guessing that all the misinterpretations were part of his plan to hide the true meaning of his mission. But if that's what you were taught, then it certainly conforms with my deduction. >"If ye love wealth greater than liberty, the tranquillity of servitude >greater than the animating contest for freedom, go home from us in >peace. We seek not your counsel, nor your arms. Crouch down and lick the >hand that feeds you; and may posterity forget that ye were our countrymen." >(Samuel Adams) > The contest for true freedom was part of Christ's mission. After all, he did say that he didn't come to bring peace but to bring a sword. Though he did end up using a whip. drasley@nbnet.nb.ca (Lazarus) wrote: >What amazes me is the audacity of these "Christians" who try to >substantiate their failing positions with "biblical >interpretations". > What until you find out what Christ's differential equation stands for and then tell me if my "biblican interpretation" is substantiating a "failing position" or not. >A) Mathematical formulae for these positions you espouse did not >exist until centuries after the existance of "Christ"; > The Mathematical formulae may not have been known until after the existence of Christ but they have existed for all time. Would you say that algebra didn't exist until it was discovered or it wasn't known until it was discovered? The formulae were always there, only their discovery was lacking. >B) Not everyone subscribes to the "truth" which you indicate >exists as a matter of simple scholarly pursuits; > I haven't even told them my "truth" yet so why would they already be not subscribing? >and by no means >what is written in the "New Testament" can be taken as fact by >any student of empirical studies as you profess to be by your >postings. > If Christ's statement is the truth, how can the fact it resides in the New Testament suggest that it not be taken as fact? >Religion is based on faith, mathematics on true science. > Who says religion can't be based on true science too? >Differential equations? I'm no self-proclaimed expert in >differential equations, > I'm not a self-proclaimed expert. I'm proclaimed by my university professor after I passed his course. >but didn't advanced calculus begin with >the Newtonian Era of thought? If such methods of analysis >existed back when this "Christ" was around, do you not think that >there would be some substantiable evidence of the fact which >would be available for discussion? > That's what I hope to provide on the week-end when I publish his differential equation. The fact he described the oppressor system in prose is not reason not to be able to see that he described it in the form of a differential equation. Besides, Stephen Froelich, an impartial scientist, figured out 99% of the differential equation on his own. If he can see a differential equation in the prose too, how can you publically state that you have doubt? >Excuse me for pointing out FACTS, but economical questions back >then were for the most part dictated by Roman occupational forces >and Empirial dictum -- now that was economic power!. > Rome was just another national empire within the orbit of the world-wide gold-bullion-brokers empire stretching from Europe to Asia just as every nation on Earth today is under the control of a Global Banking cartel. All nations are enslaved by the same device to the same group. >To attribute modern mathematical theorums to those times >related by the "testaments" written about that time (centuries >after the fact, actually) is sheer folly. > Oh, so what was true in the past is necessarily not true anymore? I have to disagree. The root cause of poverty and slavery then is still the root cause of poverty and slavery now. That's why Stephen Froelich has a science degree and you don't. He didn't treat it like sheer folly. >Need I add more? > I think you'll have to try. >To begin with, currencies in circulation then >were based upon actual valuable metals, linked directly to >verifiable "collateral" as the coinage was in actual precious >metals -- the coins themselves were minted from valuable metals, >and had value beyond any guarantees made by sovereign states. > Not all currencies were based upon valuable metals. The original Roman Empire used fiat Aes Grave copper money. Many other fiat currencies were based on clay, leather, etc. Actually, the very best money has no intrinsic value at all. Credit in a bank's computer is working all over the world now and how much intrinsic value resides in the deposit in your bank account? >Fiat currencies were a long way from becoming the current >standard, let alone the system which we now have, which is based >on a country's promise to pay, and compared against the >international market for valuation against other currencies. > And these fiat currencies would all work fine but for one fatal bug in the bank's computers' programming. >Let me state, John Turmel, that your ideas for a collateral-based >economy are not original, and certainly not new. > That's my whole point. But the Masters of the World who own the publishing houses have pushed the successful examples down the memory hole or falsely denigrated their efficacity. How many studies of British Tallies have you heard of? How many times have you heard of bankers calling government currencies "funny money" or have you heard the denigration "not worth a Continental" even though Benjamin Franklin found that pre-revolutionary "Continentals" worked admirably until British counterfeiting sabotaged their value? All I know is that collateral-based Poker chips are a perfect liquidity medium and anytime I hear that a government was using a collateral-based currency (not necessarily gold), I know that it had to work as well as poker chips and the bankers' laughter only reinforces my belief that they're conning us. >I first read >about a system such as you espouse for governing money, interest, >et. al. well over ten years ago, in a publication from 1951 -- >more precisely, it is contained in an anthology of SCIENCE >FICTION stories ("And Then There Were None" by Eric Frank >Russell). The economy was based on "obs" (obligations), basically >IOU's based on the contributions of the members of the society, >which were tradeable for other goods/services provided by other >members of that same society. Yes, the idea has merit, > YES THE IDEA HAS MERIT. What you have described is "exactly" how LETS Greendollars work. Everyone gets a Greendollar account starting at zero and the purchaser goes negative while the provider goes positive. In the LETS system, they're called "commitments" which is perfectly analogous to "obligations." >but it is >also based on the universal acceptibility of these "obs", which >are identical to your "poker chip" analogy you are so fond of >using. > You are absolutely correct. The monetary tokens are based on people's time whether measured in services or goods. >Without a central unit of conversion (dollars, for an >example), these units are still completely interchangeable except >at the discretion of the users, basing them on the "cost" of >other goods and services which they will want to acquire. > They don't need a central unit of conversion as "obs" or "Greendollars" are the unit of conversion just as Poker chips don't need any central unit of conversion. >This >is the same problem which arose from the basic BARTERING system >which was used before the introduction of hard currency. > I don't see any problem and neither did those in antiquity who accepted a man's leather disc which promised one cow. >John Turmel -- All your "program" does is keep track of the >value of the bartered goods and services, and serves as a "bank" >for unredeemed credits. > Right you are again. >Now, how does this get translated into >dollars for Revenue Canada and/or provincial finance departments, >so that the legal taxes may be paid on this income? Do you feel >that since your system doesn't use actual "dollars" that it is >exempt from taxation? Do you relay this obligation to the users >of your system, so that they may pay the proper taxes due? (To >not do so is to encourage tax fraud/tax avoidance.) > As soon as the Government starts accepting Greendollars in taxes and then uses them to pay for things government needs, there is no problem. Until then, payment of the taxes in federal is still no barrier to the major advantage. Example: A school teacher earns $25,000 a year which is deposited to his bank account. He spends it all on his family's upkeep. If that teacher earns an extra $5,000 doing extra work for Greendollars and if he uses the $5,000 Greendollars instead of $5,000 from his bank account to maintain the same level of purchases, he has $5,000 in federal cash left in his account with which to pay his taxes on $30,000 income. After the extra taxes are paid, the remainder of the cash in his bank account can be spent or used to pay down his federal cash debts. So this is not a tax-avoidance system, it's an interest avoidance system though it would work best when the government has it's own Greendollar account and accepts Green in taxes. This is not being lobbied for in countries like Australia, New Zealand and Great Britain. >The moment you bring quasi-believable religious interpretations >to your debate over your proposed monetary policies, you >discredit yourself immensely (not that you havn't done so >already). > That's a problem I've always faced. If I stick to only scientific argument, many religious people can't follow and may not be impressed. If I stick to only religious argument for the same thing, many scientific people adopt your attitude. "If religion says it's good, I won't take it seriously." And of course, economists always state that I've discredited myself without once stating how. You say I've been discredited. If my using religious instruction to bolster my argument is all you have to fall back on, I find that is discrediting you, not me. >"Biblical" interpretations have been used as the >justification for many, many injustices throughout the centuries, > And because they've been used to justify injustices, does that mean to you that they are only used to justify injustices and never justice. What about where it says "Love Thy Neighbor?" Is that telling you to do an injustice against your neighbor? >and by hitching yourself to this bandwagon you immediately bring >your ideas and philosophies under extreme scrutiny, > I don't mind my ideas being brought under extreme scrutiny though you've expressed your disfavor before even hearing them. That's kind of prejudiced, isn't it? >without having to resort to the economic realities which seem so >far beyond your grasp > I think that having participated in the creation of the Greendollar system which is being hailed around the world as an economic life-boat implies I have a greater grasp of the economic realities than you do. What you really mean is that if I had your grasp of the economic realities, I, like you, would bow down and agree with the economists that the problem is too big to handle. Fortunately, an engineering background far better prepares one to deal with realities than an economics background. >that you leave us laughing at your attempts to >construct a *real* argument for your case. > Laughing before you even hear the argument. Typical. Why don't you wait until I publish the answer on the week-end before you start laughing. By the way, I'd just like to note that you haven't been able to derive the differential equation so I think that the laughing should be left to me. He who laughs last, laughs best. And as long as you can't figure out what we're talking about, I'm laughing too. What's saddest is that you seem to understand the story on "obs" and state that "YES THE IDEA HAS MERIT" and yet you still don't see the link to Christ's differential equation. I guess you'll forever be seeing without seeing and hearing without hearing. You have to admit, Christ came up with quite a relevant insult for guys like you who not only can't see but are too busy laughing at an IDEA WHICH HAS MERIT to try to see either. John "The Engineer" Turmel From elastic!fche Sun Jul 9 12:55:33 1995 Xref: elastic can.general:2126 can.gov.general:214 can.politics:2170 can.taxes:175 ont.general:2304 sci.econ:1286 tor.general:2033 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!fche From: fche@elastic.org (Frank Ch. Eigler) Subject: Re: TURMEL: Why did Christ speak in parables? Followup-To: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ X-Newsreader: TIN [version 1.2 PL2] Organization: Elastic BBS, Toronto, Canada Message-ID: References: Date: Sun, 9 Jul 1995 16:47:06 GMT John Turmel (bc726@FreeNet.Carleton.CA) wrote: : [...] : >Religion is based on faith, mathematics on true science. : Who says religion can't be based on true science too? I do for example. Religion is by definition irrational, while science is by definition rational. There seems to me to be quite a difference. -- Frank Ch. Eigler // fche@elastic.org // eigler@vnet.ibm.com // fche@db.toronto.edu From elastic!exorcist!lethe!gts!geac!reptiles.org!io.org!interlog.com!usenet.eel.ufl.edu!netline-fddi.jpl.nasa.gov!elroy.jpl.nasa.gov!swrinde!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Mon Jul 10 16:27:29 1995 Xref: elastic can.general:2132 can.gov.general:215 can.politics:2173 can.taxes:176 ont.general:2311 sci.econ:1340 tor.general:2040 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!exorcist!lethe!gts!geac!reptiles.org!io.org!interlog.com!usenet.eel.ufl.edu!netline-fddi.jpl.nasa.gov!elroy.jpl.nasa.gov!swrinde!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: The Third Way Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Sun, 9 Jul 1995 05:00:50 GMT Lines: 85 Subject: Re: TURMEL: The Third Way fche@elastic.org (Frank Ch. Eigler) wrote: >John Turmel (bc726@FreeNet.Carleton.CA) wrote: >[...] >: >[...] >: >If I can start borrowing against my future income, >: >wouldn't the money supply explode just as with fractional reserve >: >banking, or interest-based loans, leading to similar inflation? > >: Besides, what do you do with the money you borrowed? Your >: debt account went up and your cash account went up. You purchased >: things meaning that though your cash account went down and your >: asset account went up. > >Well, if I were playing with your proposed system, I could borrow >money now against my entire lifetime's earnings, and spend it all. >If others do the same, we'd have an explosion of the money >supply, no? Immediate inflation, no? (And corporations have no >lifetimes to limit them.) > Spend it all on what? If you buy a house, the house is the collateral for the chips issued. If you buy a car, it is too. All we ask is that you repay your loan as fast as the collateral depreciates. Sure there would be an explosion on the money supply but all backed up with collateral or markers. There would be a commensurate explosion in employment and economic activity. You must lose the "Edgie the economist" knee-jerk reaction that an increase in chips necessarily means inflation. It doesn't if there is collateral to back up the new chips or that your economic enterprise is capable of repayment of the depreciation. >: >Besides, it is never the case that `everybody borrows 10 and >: >everybody owes 11' in the present banking system. The banks, >: >being members of the `everybody' set, borrow 11 and owe 10, >: >balancing the numbers. >: >: Please. This is a first. Borrowing 11 and owing 10? I've >: heard of bankers getting preferential interest rates borrowing >: $100 and owing $101 while everyone else would owe $110 but I've >: never heard of anyone borrowing 110 and owing 100. >: You'd better provide some proof as right now I think it's a >: pretty ridiculous statement. > >Okay, by example. Person A invests $200 in Bank B. It >promises to pay him 5% interest. (Thus the bank borrows $200, >owes $210, so far). Bank B makes a loan of $200 to person C. It >charges that person 10% interest. (Thus the bank has a new $220 >as a debit, $20 profit) In total, the bank `borrowed' $200+$20, >but owes $210. > >In other words, the borrow/owe relationship is inverted for a >net lender when compared with a net borrower. > Of course, when I say that people borrow 100 and owe 110, it necessarily implies that the banker loaned out 100 and is owed 110. But to say that because the person owes an extra 10 which was never issued into circulation and because the bank is to get and extra which was never issued into circulation doesn't mean the loans therefore balance. Besides, the banks do not lend out their depositors funds. Each and every time a bank makes a new loan, new bank credit is created, brand new money. (Graham Towers, Governor of the Bank of Canada to the Banking Committee in 1939) Check any Economics textbook on how banks create new money. So if they're lending out new money, they're not lending out their depositors old money. >: >Are you saying that the market is completely random? What of >: >competitive >: [...] >: Why, are you saying Von Neumann was wrong when he said that >: "important question in economics arise in a more elementary >: fashion in the theory of games?" > >The theory of games does not use randomness in every problem. >A `game' != `game of chance'. > But important questions in economics do arise in a more elementary fashion using a game to model economic activity with. J.C. Turmel From elastic!fche Mon Jul 10 16:45:22 1995 Xref: elastic can.general:2134 can.gov.general:217 can.politics:2176 can.taxes:178 ont.general:2313 sci.econ:1347 tor.general:2042 Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ Path: elastic!fche From: fche@elastic.org (Frank Ch. Eigler) Subject: Re: TURMEL: The Third Way Followup-To: tor.general,ont.general,can.general,can.taxes,can.politics,can.gov.general,ncf.general,ncf.government.ont-elect.general,ncf.federal-election.national,alt.conspiracy,sci.econ X-Newsreader: TIN [UNIX 1.3 950515BETA PL0] Lines: 62 Organization: Elastic BBS, Toronto, Canada Message-ID: References: Date: Mon, 10 Jul 1995 20:44:28 GMT John Turmel (bc726@FreeNet.Carleton.CA) wrote: [...] : >Well, if I were playing with your proposed system, I could borrow : >money now against my entire lifetime's earnings, and spend it all. : >If others do the same, we'd have an explosion of the money : >supply, no? Immediate inflation, no? (And corporations have no : >lifetimes to limit them.) : Spend it all on what? If you buy a house, the house is the : collateral for the chips issued. If you buy a car, it is too. All : we ask is that you repay your loan as fast as the collateral : depreciates. [...] How about spending it on entertainment, going boating, going to the moon and back, hiring a dozen masseurs with accompanying belly-dancers. In other words, *services*. Or perhaps *renting* equipment or a home. I'd own no more physical property than before the massive loans. (Thus I don't have to repay the loan on the account of depreciation.) But I could enjoy the value of the money regardless! All for a loan that's given against my iffy future income. : Sure there would be an explosion on the money supply but all : backed up with collateral or markers. Not necessarily! [...] : >In other words, the borrow/owe relationship is inverted for a : >net lender when compared with a net borrower. : : Of course, when I say that people borrow 100 and owe 110, it : necessarily implies that the banker loaned out 100 and is owed : 110. Yes, and your scenarios consistently exclude the banker as one of the players, leading to the seeming imbalance. : But to say that because the person owes an extra 10 which : was never issued into circulation and because the bank is to get : and extra which was never issued into circulation doesn't mean : the loans therefore balance. Why not? It seems to exactly add up, if you agree that the bankers are just one of the bunch. : Besides, the banks do not lend out their depositors funds. : [...] So if they're lending out new money, they're not lending : out their depositors old money. Why does this matter? [...] : >The theory of games does not use randomness in every problem. : >A `game' != `game of chance'. : > : But important questions in economics do arise in a more : elementary fashion using a game to model economic activity with. Huh? So are you agreeing with my cutesy inequality or not? -- Frank Ch. Eigler // fche@elastic.org // eigler@vnet.ibm.com // fche@db.toronto.edu From elastic!jaywon.pci.on.ca!noc.tor.hookup.net!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Fri Aug 25 08:41:30 1995 Xref: elastic can.general:4617 can.legal:555 can.politics:3582 can.taxes:330 news.admin.net-abuse.misc:2807 ont.general:4772 tor.general:4874 Newsgroups: can.legal,ncf.general,tor.general,ont.general,can.general,can.politics,can.taxes,ncf.sigs.business.freedata,news.admin.net-abuse.misc,alt.conspiracy Path: elastic!jaywon.pci.on.ca!noc.tor.hookup.net!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: TURMEL: Posts deleted without notice Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Reply-To: bc726@FreeNet.Carleton.CA (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Fri, 25 Aug 1995 04:48:31 GMT Turmel: Posts deleted everywhere without notice Lines: 1196 On Aug 17 1995, I posted an article titled: "TURMEL: NCF did delete all our posts everywhere" In it, I mentioned that I had received a private message on Aug 10 1995 informing me that the person who had deleted all of our posts was the National Capital Freenet News Administrator Paul Tomblin, news@freenet.carleton.ca. He had been surreptitiously canceling my posts prior to Friday July 21 and on July 21, he canceled the whole lot. Within a day, he canceled my complaint about what he had done. At least one person from Texas read it before it was censored and wrote him to complain about having his postings deleted with mine. I had mentioned that "I have no wish to get embroiled in an possible civil court litigation with the NCF but the arbitrary treatment I received must be explained." I know many consider it a breach of Netiquette to publish one's private correspondence without permission but since one's mail is admissible in any Canadian court of Justice, it's a Netiquette that is voluntary but which has no basis in law. I've always tried to accord anonymity to correspondents who were civil but I've always felt free to attribute nasty messages to their authors within the topic. I am therefore going to take the liberty of publishing the correspondence between me and NCF staffers. I doubt there might be any objections from anyone but perhaps Mr. Tomblin. Considering he not only has his finger on the "cancel" button but is willing to use it unilaterally, I don't think it's unfair on my part to cite what he said in private in its entirety. I'm also reposting some relevant posts that were canceled. Here is the correspondence between myself and NCF administrators and a few relevant postings in our quest to explain all the cancellations: ------------------------------------------------------ :Date: Thu Jul 27 11:42:12 1995 :Subject: TURMEL: How were all my posts deleted everywhere? :From: bc726@FreeNet.Carleton.CA (John Turmel) :ncf.admin,can.legal,ncf.general,tor.general,ont.general,can.general$ : :Between : JOHN C. TURMEL, B. Eng. : Plaintiff : and : NATIONAL CAPITAL FREENET : Respondent : NOTICE OF CLAIM : : On Sunday July 23, I found out that all my posts and those :of my correspondents for the last two weeks had been deleted from :the ncf.general newsgroup. They were also deleted from a total of :fourteen(14) out-side newsgroups I attend. : : I was not informed of a problem. : I was not given a chance at representation. : : I would like to know: : 1) Why this was done? : 2) What discussions took place? : 3) How this was done? : 4) Who authorized that this be done? : : Unless there is authority for such censorship, I would :request that such actions be curtailed in future and my messages :be immediately returned. : I have no wish to get embroiled in an possible civil court :litigation with the NCF but the arbitrary treatment I received :must be explained. :John C. Turmel, B. Eng. ------------------------------------------------------ :Article #30518 (30564 is last): :From: jstewart@algonquin.carleton.ca (John Stewart) :Subject: Re: TURMEL: How were all my posts deleted everywhere? :Date: Thu Jul 27 12:57:51 1995 : : You'd have to ask the person who cancelled your postings but as I will :explain further on it isn't likely you'll ever find them. : :> 2) What discussions took place? : None presumably. Read on! : :> 3) How this was done? : Since you crosspost to many different newsgroups your postings are :circulated to thousands of different sites in the world. The requests to :cancel your postings could have originated at any one of these sites. : Most news software in use today performs little or no authentication on :the postings submitted to it. As a result someone with knowledge of how :the news system works can easily forge cancel requests for someone elses :postings. : :> 4) Who authorized that this be done? : No one presumably. It was most likely just an act of vandalism commited :by someone who has been careful to cover their tracks. The information :highway equivalent of having someone paint grafitti on your house. :-- :John Stewart -- Computing and Communications Services, Carleton University :Internet: jstewart@ccs.carleton.ca 613-788-2600x3707 :Freenet related queries: xx104@freenet.carleton.ca ------------------------------------------------------ :Article #30528 (30564 is last): :From: xx001@FreeNet.Carleton.CA (FreeNet Registrar) :Subject: Re: TURMEL: How were all my posts deleted everywhere? :Date: Thu Jul 27 16:17:28 1995 : :John Turmel's posts were not deleted by NCF staff. In the case of any :action of this nature (deletion of abusive, libellous or hateful postings, :account suspensions or cancellations), every effort is made to contact the :member in question to resolve the situation. NCF carefully considers these :situations, and attempts to avoid unilateral actions as much as possible. : :As John Stewart says, anyone at any site where Mr. Turmel's postings :appear may have been able to delete them without too much trouble. There :is little that NCF can do in this situation. There have been complaints :from other sites (particularly in New Zealand) that Mr. Turmel has been :jamming their newsgroups. Mass cross-posting is a breach of accepted :standards of netiquette. The deletion of Mr. Turmel's postings is :the result of someone has obviously feels that he has not been adhering to :those standards. :Mike Anderson, Administrative Coordinator, National Capital FreeNet :ncf@freenet.carleton.ca : respond to this address unless otherwise specified ------------------------------------------------------ :From: bc726@FreeNet.Carleton.CA (John Turmel) :Subject: Re: TURMEL: How were all our posts deleted everywhere? :Date: Fri Jul 28 10:02:53 1995 : : In ncf.general, article #30518, I received an enlightening :answer from jstewart@algonquin.carleton.ca (John Stewart): : ::John Stewart -- Computing and Communications Services, Carleton University ::Internet: jstewart@ccs.carleton.ca 613-788-2600x3707 ::Freenet related queries: xx104@freenet.carleton.ca : :: Most news software in use today performs little or no authentication on ::the postings submitted to it. As a result someone with knowledge of how ::the news system works can easily forge cancel requests for someone else's ::postings. :: It was most likely just an act of vandalism committed by someone ::who has been careful to cover their tracks. The information ::highway equivalent of having someone paint grafitti on your house. :: : I'm relieved to know that there was no conscious decision on :the part of the NCF to bow to the E-mail jammings sent to you by :a few irate members of the audience. : Though vandalism is probably the right word, what struck me :was not just that they could erase my contributions to :discussions but that they could erase my correspondents' as well. :Could a vandal have managed to erase everyone on a stream that :easily? : These were pretty important newsgroups too. I would hope :can.politics and ont.politics would be secure though the forgery :which surfaced during the Ontario provincial election campaign :did show the weakness in the system. : I must admit that vandals have been posting articles in my :name in all sorts of other newsgroups and I've been getting angry :letters from those groups. I'm sure NCF has too. : I have to wonder though if all of our fourteen conferences :perform so little or no authentication. : Is there someway to ask the newsgroup sysop to disable the :cancel function? It's something I rarely use and I'd give it up :in an instant if if safetied me from the vandals. : : In article #30528 in Newsgroups: ncf.general on Jul 27 1995, :I received an answer from: xx001@FreeNet.Carleton.CA (FreeNet :Registrar) : ::John Turmel's posts were not deleted by NCF staff. In the case of any ::action of this nature (deletion of abusive, libellous or hateful postings, ::account suspensions or cancellations), every effort is made to contact the ::member in question to resolve the situation. NCF carefully considers these ::situations, and attempts to avoid unilateral actions as much as possible. :: ::As John Stewart says, anyone at any site where Mr. Turmel's postings ::appear may have been able to delete them without too much trouble. There ::is little that NCF can do in this situation. There have been complaints ::from other sites (particularly in New Zealand) that Mr. Turmel has been ::jamming their newsgroups. Mass cross-posting is a breach of accepted ::standards of netiquette. The deletion of Mr. Turmel's postings is ::the result of someone has obviously feels that he has not been adhering to ::those standards. ::Mike Anderson, Administrative Coordinator, National Capital FreeNet ::ncf@freenet.carleton.ca :: : I was posting in only one newsgroup in New Zealand: :nz.general. Those complaints are from the foul-mouths who fill up :the Topic Index Page with insults and stunted replies. The two or :three topic lines I use per day are dwarfed by the dozens of :these valueless contributions. I can understand the exasperation :with so many out-of-country posts because the name-calling IS :off-topic. : But what am I supposed to do? Stop communicating with the :New Zealander LETS who reply because of a few rowdies who want to :start shouting nasty replies? It's like walking into a crowd with :a pack of dogs at your heels. No one's particularly happy to have :you around. Some will tell you to leave hoping the dogs go with :you. Some like to watch the fight. : Complaints from New Zealand are an interesting case because :I was just over there on a speaking tour about their LETS :Greendollar bank branches and have already connected with several :other LETS members I didn't know in nz.general. LETS are called :financial "life-boats." It is the best example I have of why I'm :not leaving. Do I have to get affidavits from those who want to :continue these discussions on "life-boats" with me on nz.general :before I'm allowed to participate in peace? : As for exaggerated complaints of "Mass cross-posting" which :has yet to be defined, I cross-posted to only fourteen groups I :feel are related to these discussions. Many times, I've seen :cross-posts to many more than fourteen and with no complaints. :It's never bothered me where someone likes to post his opinions. :Considering my usual gung-ho enterprises, I think my choices of :newsgroups was well-thought-out and rather conservative. I do not :feel, given the many, many, longer lists that I have in any way :breached Netiquette rules. : As for the complaints of long posts, this is not dinner :table etiquette where you're not supposed to monopolize the :conversation because it gets in the way of the conversation :between others. This is a new game where nobody's long-windedness :can get in the way of any other. Too prolific is a red herring if :you have the power to discard your mail. : I'm just lucky I can write at my machine all day and post at :night. I doubt there's a limit to prolificacy? : : In Article #30519 Rob Sellars wrote: : ::: I was not informed of a problem. :: ::I find it hard to believe that you were unaware that a large ::number of people were upset at the length of your posts and the ::manner in which you post to "seemingly" unrelated newsgroups. :: : Those people who can't handle 10 or 20 pages shouldn't keep :trying to read my posts. And what about the people who enjoy the :posts and correspond with me? Do they have to forego down- :loading those few 20 page posts because of complainants? : ::I have a solution to everyone's problem. Set up a home page with ::links to all your articles on your www server, and when you have ::new information, write a short message with a link to you home ::page and post it to only the "related" newsgroups. :: : Why don't they cancel the newsgroups and make everybody get :a home page. Or is this only for John Turmel? Why should I not be :able to participate in the public fora of the newsgroups? What am :I supposed to post?: : "Go go John Turmel's Web Page to find out his submissions on :this topic."? : No matter how you're cutting it, you're looking for an :acceptable way for me to be pushed out of public debate by a :bunch of foul-mouths and vandals. : I've never accepted less than "the same" treatment before :and I'm not going to start now. : ::I think you will find that people will be more receptive ::to your ideas if they aren't forced upon them. :: : Posting information is not forcing it upon them. I think :it's an improper concept to even think that publishing ideas is :somehow improperly forcing them on people. They just have to not :read them. Besides, I'm not looking for people who judge it on :how it was presented to them but for people who judge on how it :works. : ::If you need help setting up a home page please ::E-mail me and I will help you as much as possible. :: : Can't hurt. I haven't had time to learn the codes myself :since most of the information I put out is new. I get 20 :responses a day and try to answer them. I think getting those :answers beside the questions is taking most of my time right now :but putting some standard texts like the poetry, the math, and :the press clippings on a web page would certainly alleviate some :complaining. Thanks for the offer. I'll write. : : In article #30535, 3mpa@qlink.queensu.ca (Marco Anglesio): : ::Umm, John and John, a cancelbot isn't all that hard to write. NNTP was ::designed to allow for minimal verification (see the RFC, I don't remember ::the number off the top of my head, but no doubt someone does) and cancel ::bots take advantage of this fact. ::Furthermore, John Turmel, you're lucky that it didn't happen beforehand. ::You have irritated almost every group you post to, and it was only a ::matter of time until a cancelbot started deleting your posts. :: : Just because there was a lot of noise from a few foul-mouths :doesn't mean I was the one who alienated those readers. Those who :were responding were irritated by nothing more than having their :posts vandalized like mine. : ::Unless, of course, you had already read them and they weren't ::shown because your .newsrc did its job. You've already proved ::your ignorance of the way Usenet works. :: : Well, it's true I haven't devoted much time to learning how :to "cancelbot" somebody. this is the first time I've come into :contact with these kinds of tactics. It seems like it's going to :be race for me to put up my posts and have my readers pick them :up before they're torn down. And as I put them back up and :they're torn down, the conference will start screaming about the :space in their Topic Index page we're taking up. : All these years communicating on the Internet and I never :looked into "cancelbots." As a well-known Canadian professional :gambler, it's fair to say my sportsmanlike conduct is pretty :guaranteed. "You don't need to beat'em crooked when you can :beat'em fair," is a pretty easy motto to live by if you're a :trained winner. No, the idea of sabotaging someone's discussion :because I didn't like what he had to say is totally alien to my :ethos. : Guaranteed money coming in which is based on your worth and :skill gives one a different appetite for wealth compared to those :whose job doesn't guarantee financial security. They never have :enough. : That's what feels so good about having a Greendollar bank :account. Your money coming in is based on what you can do, your :worth and skill, and not on what you own or earn. It's even based :on worth and skill in twenty years when they've grown up. : Interest-free credit cards for children would be panacea. An :interest-free credit card in the hands of every little kid who :needs an operation. No more families pleading on TV for funds to :have an operation. It's on the kids tab. An interest-free credit :card in the hand of every starving Third Worlder. Bet not much :food rots in farmers' fields. And if they lose and can't repay, :the Greendollar program can take a Greendollar out of everybody's :account to close out Junior's debt. : ::I'm damn glad that I don't have to be the one to deal with your ::pathetic whining. Have fun until your account on ncf gets revoked. ::marco anglesio :: : This is sad. You see an example that our communications are :not that safe and you think looking into it is whining. This is :the first time and I'm offended that it was so easy. The :newsgroups must be pretty insecure if someone can go erase every :who posted to our streams. Wouldn't you like it better too if it :were more secure? : : From article #30536, ah787@FreeNet.Carleton.CA (Bill Stuart): : ::: I was not informed of a problem. :: 200 posts a day telling you to shut up should be a clue. :: : 20 from the same 8 guys. And you don't need clues when you :have two hands to count with. : ::: I was not given at chance at representation. :: You are not entitled to representation on the net. It's not a ::legal proceeding. :: : As you'll note above, whenever the NCF authority discusses :doing something like this, you are given a chance at :representation. : :: It's called a "Cancelbot". It reads newsgroups and issues a cancel ::in your name through a forged id. :: : : That's sad to think that it's as easy as that. Can they :forge id on the go to kill everyone in the stream or do they have :to log in under the forged name each time? : ::: Unless there is authority for such censorship, I would ::: request that such actions be curtailed in future and my messages ::: be immediately returned. :: It's net anarchy. This is what people to to stop spam. : : No, this is what just a few can do to hurt anyone they want. : ::> I have no wish to get embroiled in an possible civil court ::> litigation with the NCF but the arbitrary treatment I received ::> must be explained. :: It could have been one out of about 8 hundred thousand ::people. NCF most likely doesn't care about you either way. :: : I don't take the matter lightly and if hadn't been :vandalism, I was just letting people know that there are ways to :set Internet law, at least in Canada. If it had been done by the :system, it was what I requested to avoid a court battle. A :necessary piece of information. : : From article #30539 kendall@io.org (David Kendall): : ::I'm curious as to why you've tried to make this post look like a ::legal document. Have you actually filed suit? :: : No, I had to ascertain who was responsible first. But it was :started in the right direction, wasn't it? : ::Once again, you're being needlessly confrontational. A simple e- ::mail would have sufficed. :: : Yes, I may have over-reacted but I've been squelched by the :authorities so many times in my life -- as any well-read Ottawa :resident can tell you -- that I almost take it for granted. I :thought I might have to fight to be able to continue posting like :I've always had to fight to be able to participate in election :debates. It's just not something people should take for granted. :Minor candidates' rights to participate in televised debates in :Canada have been completely eliminated. Do you think eliminating :minor people's rights to post what they have to say on Internet :isn't far behind? They've established financial censorship over :all other media, do you think this medium will escape? Hope so. : : From article #88541 af783@FreeNet.Carleton.CA (Michel :Vachon): : ::John Turmel (bc726@FreeNet.Carleton.CA) writes: ::[pointless attempt at threatening legal language deleted] ::Quite likely someone complained about your abuses of the system. ::If so they just beat me to it. :: : That was the whole point. The NCF properly didn't and :shouldn't have though you don't seem to yet realize that. And if :you can prove to me that you can ever beat them to it, you'll be :hiring a lawyer the next day. So don't brag. It's admissible. : ::Unfortunately, you don't seem to learn from your experiences and have ::placed this irrelevant posting in can.politics where it does not belong. :: : I'm a Canadian politician who has had my speeches deleted :from the Canadian political discussion. Please tell me you didn't :know I hold the record for most federal elections in Canada. And :provincial. Maybe not municipal. Yet. : : The topics I started were: : : April 9, 1995 I asked: "The Third Way?" The first way is :raising taxes. The second is cutting government spending. What's :the third way? This got lots of play. I wanted people in the :can.taxes, can.politics, ont.general, tor.general, and :ncf.general to know about this. : : June 20, I re-opened the stream: "What National Debt?" An :Ottawa Freenetter had made some good points, had been criticized :and I wanted to defend him in the sci.econ newsgroup. : :Jun 21, I opened "Greendollars are Timedollars in U.S.A." Got :little play since Greendollars are called Timedollars in U.S.A." : :June 21, I asked: "Why did Christ speak in Parables?" He spoke in :parables because of loan-sharking and he said it with a :Differential Equation. This got loads of play, almost 20 :exchanges, and two readers found the D.E. in His words. I'd never :gotten anyone who'd taken D.E.s to even see the D.E. in those :verses let alone derive them themselves. It's like when you plug :the answer you've just worked out into the original problem and :it fits. It's right and you know it's right. It's not economics. : :July 2, I responded to: "Rabson's Fable" with "Rabson's Fable :(amended) which used a beautiful premise he had constructed but :treated his gold-smith like a casino cashier. No more complaints :from the economists. The discussion is idle. : :July 4, Doug.Bashford%ow@salata.com brought to an old post: :Guinness Record for most elections. This discussion was jumped on :with vehemence. : :July 12, I answered: "Christ's Bank Account." This explained a :second Differential Equation Christ gave us to use instead of the :Loansharking Deferential Equation. Showed some Laplace Transforms :and control systems diagrams of how the two bank accounts work. I :put this on the sci.engr. : :July 13, I specified: "Mathematics of Debt Slavery." This post :has all the math and always generates insults but no criticisms. :Several engineers have already attested the math is right. Good :ones anyway. There are some bad ones out there who can't keep up. : :On July 16, I detailed: "LETS Greendollar Press Reports" and :added nz.general, aus.general and uk.misc where LETSystems are :thriving best. Contacts and discussion have been made. : :On July 13, I responded to claims for: "Censorship." Says it all. : :On July 14, I posted my efforts in: "Press Clippings." These are :my endeavors in Banking Systems Engineering using politics, law :and gambling. : :On July 14, I detailed former discussions: "Usury on sci.econ." :There were some very funny arguments at the time and have :generated some even funnier ones now. : :July 22, 1995, I explain why I post: "I'm a Pauper." After my :gambling conviction, the rules said I had to end up broke. Again. : :July 19, I responded to: "My ego is so big that..." There had :been lots of play on that topic by the nasties and I just felt :a little mental judo would do them good. : : I thought they were very interesting streams and I'm sorry :to see them gone from public view. Quite a few people found them :"most entertaining." But the bellicose vandals had to e : : The others' topics were: : :1) Subject: TURMEL DEVOURED BY SPACE GUPPY : From: ah787@FreeNet.Carleton.CA (Bill Stuart) :2) Subject: CHRIST: Why does Turmel speak nonsense? : From: kendall@io.org (David Kendall) :3) Subject: Re: Rising Kook: TURMEL & the differential bible : From: karl mamer :4) Subject: TURMEL: My ego is so big that.... : From: ae906@ccn.cs.dal.ca (Christian Rose) :5) Subject: Can we get Turmel out of here? : From: Herman De Vries :6) Subject: Turmet - Oops : From: Herman De Vries :7) Subject: TURMEL: headswell : From: alh@postoffice.utas.edu.au (Alan Hughes) :8) Subject: Turmel and cross-posting : From: av580@FreeNet.Carleton.CA (Jeff Gagnon) :9) Subject: John Turmal And Ego's : From: av580@FreeNet.Carleton.CA (Jeff Gagnon) :10) Subject: John Turmel, Net Abuser Extraordinaire : From: Lazarus :11) Subject: WHO THE $#%@ IS TURMEL?????????? : From: vils@daystorm.com (Vils M. DiSanto) :12) Subject: Is Turmel the next Mutlu/Argic? : From: spmaguir@chat.carleton.ca (Sean Maguire) :13) Subject: Re: Turmel's still here - Im gone : From: ak089@torfree.net (Lorie Lanktree) :14) Subject: TURMEL: Kook of the Month Nomination : From: kamamer@io.org (karl mamer) :15) Subject: Re: Hey Idiot! : From: cyberknght@aol.com (CyberKnght) :16) Subject: Turmel... : From: chrisw@skypoint.com (Christopher Wright) :17) Subject: Re: Can we do something about Turmel? : From: mjo@moc.govt.nz (Mark Ogilvie) :18) Subject: John Turmel : From: s3collin@mc1adm.uwaterloo.ca (Sharon Collins) :19) Subject: Re: Regardng John Turmel... : From: Friday :20) Subject: Can we have nz.general back please? : From: bruce@qnx.nacjack.gen.nz (Bruce Simpson) :21) Subject: My Dear Mr. Turmel : From: bf766@FreeNet.Carleton.CA (Andre L. Ouellette) :22) Subject: ncf.general = ....TURMEL.... ???!??! : From: bp590@FreeNet.Carleton.CA (Scott D. Green) :23) Subject: Get rid of this TURMEL guy : From: douglase@iconz.co.nz (Elizabeth Douglas) :24) Subject: GIVE TURMEL A SEX CHANGE, DEPORT HIM, AND CHARGE : HIM WITH HATE CRIMES : From: ah787@FreeNet.Carleton.CA (Bill Stuart) : : They cross-posted every one of these ridiculous statements :topics everywhere. Ten or twenty loud-mouths screaming a lot about :the "absolutely ridiculous, impossible, doesn't-merit-discussion" :"drivel" and clutter up the screen with our discussion. This kind :of noise is far more effective than one may realize. People wake :up and see a face full of this and it makes them angry about my :being there and "causing" such a stir. : Drop all the topics with theme "it-can't-be-done," "it- :shouldn't-be-here," "how-can-we-best-stop-listening," and "how- :can-we-best-stop-him-from-speaking" and "NAME CALLING" you're :left with my few posts a day with 5 or 6 interested responses. : I think I put on a class act in a rough-and-tumble game with :verbal body-checking but my checks were never unfair. I never hit :below the belt. I never once used language I couldn't use in :front of your mother. I never had to curse. All I had to do was :be funny and making fun of the opposition hurts them most. : I think I put on a class act in a place where in a rough- :and-tumble game with verbal body-checking but shots were never :unfair. I never hit below the belt. I believe in sportsmanship. : So not only can a small group of noise-makers stuff one's :post-master with complaints but they can also instigate other :such cross-postings to annoy readers I'm trying to address. : I have those streams if anyone would like them back up so we :can continue our discussions. :John C. Turmel ------------------------------------------------------ :From: xx247 ("G.J.W. Hagenaars") :Subject: Re: How were all my posts deleted everywhere? :Date: Sun Jul 30 18:50:14 1995 :To: bc726@freenet.carleton.ca :Cc: complaint, newsmaster :% NOTICE OF CLAIM : :I've received over three hundred complaints over the past two weeks. I :am sure that the newsmaster has received at least that many. Were I to :guess, I think that you have been Cc-ed on at least half of those. :Are you sure you were not aware of a problem? : :% I was not given a chance at representation. : :Among the complaints I got were quoted postings by you, where you said :that some people were mailing you, and that you were deleting them :without looking at the contents if you suspected that they were mailing :back your posts, and that you were ignoring all pleas to stop posting :large volume to expensive newsgroups. :I must admit that I did not see those postings from you myself (I don't :read Usenet News any more), but did _those_ people not have a right to be :heard? : :% I would like to know: :% 1) Why this was done? :% 2) What discussions took place? :% 3) How this was done? :% 4) Who authorized that this be done? : :Unfortunately I do not know the answer to any of these questions, with :the possible exception of #3. : :% Unless there is authority for such censorship, I would :% request that such actions be curtailed in future and my messages :% be immediately returned. :% :% I have no wish to get embroiled in an possible civil court :% litigation with the NCF but the arbitrary treatment I received :% must be explained. : :You would be mighty popular if you were to take NCF to court. :Especially with all the people who cannot afford the $30 a month for :commercial InterNet access; they depend on NCF to provide them with :this access. From what I've seen from your postings that were mailed to :me; you make a point of defending the people with little money. :The above is my _PERSONAL_OPINION_ and has absolutely _NO_ link with :any official opinion that any of the boardmembers of NCF would/could :make. Or any other official opinion for that matter. :This message is Cc-ed to one of the board members who deals with :complaints, and the newsmaster. :G.J.W. Hagenaars, M.Sc. Math ----> Remembering Mike Carty 1968-1994 :xx247@freenet.carleton.ca -------> Postmaster National Capital FreeNet ------------------------------------------------------ :From: bc726@FreeNet.Carleton.CA :Subject: Complaints :Date: Tue Aug 1 23:00:18 1995 :To: xx247 (G J W Hagenaars) - OK : :Subject: Re: How were all my posts deleted everywhere? : :To: xx247 ("G.J.W. Hagenaars") : ::I've received over three hundred complaints over the past two weeks. I ::am sure that the newsmaster has received at least that many. Were I to ::guess, I think that you have been Cc-ed on at least half of those. :: : I was aware of a few dozen people but nowhere near 300. Is :there some way I can get documentation. : ::Are you sure you were not aware of a problem? :: : I'm still not aware of a problem. Who has a right to say :something doesn't belong but not specify why? I picked my 14 :conferences with great care that information be relevant. And who :has a right to say what is too long? Why do these people even :have to read my posts? : ::Among the complaints I got were quoted postings by you, where you said ::that some people were mailing you, and that you were deleting them ::without looking at the contents if you suspected that they were mailing ::back your posts, and that you were ignoring all pleas to stop posting ::large volume to expensive newsgroups. :: : What is large? It's true that when I saw a screenful of mail :from the same person, all large messages, I assumed that they :were just mail-jams and discarded them. : What makes these newsgroups expensive? I had no idea a :couple of dozen pages was such a trial. : ::I must admit that I did not see those postings from you myself (I don't ::read Usenet News any more), but did _those_ people not have a right to be ::heard? :: : How was I preventing their right to be heard? : ::% I have no wish to get embroiled in an possible civil court ::% litigation with the NCF but the arbitrary treatment I received ::% must be explained. :: ::You would be mighty popular if you were to take NCF to court. :: : Had the NCF been responsible for acting arbitrarily, I would :have gone to court. And I think that preventing arbitrary action :may have been more popular than you might think. I'm pleased that :my posts were erased by a vandal and not the authorities. I'm now :writing a letter of complaint to the RCMP in my position of :Leader of the Abolitionist Party of Canada whose postings were :deleted from can.politics, can.taxes and can.general in :particular. : ::Especially with all the people who cannot afford the $30 a month for ::commercial InterNet access; they depend on NCF to provide them with ::this access. From what I've seen from your postings that were mailed to ::me; you make a point of defending the people with little money. :: : And as long as NCF continues to act fairly, there will be no :problem from me. : ::The above is my _PERSONAL_OPINION_ and has absolutely _NO_ link with ::any official opinion that any of the boardmembers of NCF would/could ::make. Or any other official opinion for that matter. :: : No problem. I just want to point out that there are no rules :which limit how many relevant newsgroups I may post to nor how :long is too long. And I'd point out there are many people who :post to far more newsgroups at once than I ever did. So I find it :hard to take seriously complaints about spamming in my case. :John Turmel ------------------------------------------------------ :Article #30714 (30728 is last): :From: aa610@freenet5.carleton.ca (Ian! D. Allen [NCFreeNet]) :Subject: Re: TURMEL: How were all my posts deleted everywhere? :Date: Wed Aug 2 13:19:14 1995 : :>In article <3vb2fg$sdo@knot.queensu.ca>, 3mpa@qlink.queensu.ca says... :>[...] Also, being in a position of authority :>implies a responsibility, and the obligation, to sometimes take action to :>correct a problem, they had some obligations to consider when they took :>their action. That doesn't seem to be the case here, there seemed to be :>no official action. : :Lisa Donnely and I have now looked into the deletions. She will post a :statement about NCF involvement soon. Sorry for the delay -- we are :having problems contacting our News admin by phone and coordinating :the opinions of various NCF Board members and staff. :-IAN! Ian! D. Allen aa610@freenet.carleton.ca System Administrator |Ottawa : The National Capital FreeNet Libertel de la Capitale nationale |Canada ------------------------------------------------------ :Article #30724 (30728 is last): :From: aa610@freenet5.carleton.ca (Ian! D. Allen [NCFreeNet]) :Subject: Re: TURMEL: How were all my posts deleted everywhere? :Date: Wed Aug 2 15:29:10 1995 : :John Turmel wrote: :>Could a vandal have managed to erase everyone on a stream that easily? :>Can they forge id on the go to kill everyone in the stream [...] : :Yes. Anyone with a little knowledge can erase anything and everything :posted to Usenet. : :>I must admit that vandals have been posting articles in my :>name in all sorts of other newsgroups and I've been getting angry :>letters from those groups. I'm sure NCF has too. : :Yes we have. Lots of angry mail. : :>I have to wonder though if all of our fourteen conferences :>perform so little or no authentication. : :Such is the nature of Usenet. Just as anyone can stand on a soapbox :in downtown Ottawa, proclaim he is John Turmel, and spout rubbish, :anyone on Usenet can do the same. We don't have mandatory ID cards :that we must display in public; we don't have them on the net either. : :>Is there someway to ask the newsgroup sysop to disable the :>cancel function? : :Too hard to do; we don't have the programming staff. : :>But what am I supposed to do? Stop communicating with the :>New Zealander LETS who reply because of a few rowdies who want to :>start shouting nasty replies? : :Perhaps you should ask the nz news admin to create a separate LETS news :group for your discussions if the general group is annoyed with your :large number of repetitive postings. Do whatever makes peace with people. : :>As for exaggerated complaints of "Mass cross-posting" which :>has yet to be defined, I cross-posted to only fourteen groups I :>feel are related to these discussions. : :That's too many. Pick one well-distributed news group and stick with it. :Monthly, post a short note in the other news groups to refer people to :the main news group. That should cut down on the irritation you cause. : :>Many times, I've seen :>cross-posts to many more than fourteen and with no complaints. : :I see the complaints -- lots of them. Just because a million people :do a stupid thing doesn't mean you have to be stupid too. Read the :Usenet etiquette files; cross posting is bad manners. : :>"Go go John Turmel's Web Page to find out his submissions on :>this topic."? :>Why don't they cancel the newsgroups and make everybody get :>a home page. : :It's coming, even here on NCF. You can start by putting all your :relevant stuff in a file named HomePage.html in your NCF work :directory. Do that, then tell people to access the URL: : : html://www.ncf.carleton.ca/~bc726 : :We'll expand the service when I figure out how home pages are :supported elsewhere. Or, better, why not start a LETS area on NCF and :put your files there. Then you can have a private NCF news group and :your own menus leading to all your information in a well-organized :manner. NCF menus are visible world-wide on the WWW as well, so :people around the world can come get everything. : :>No matter how you're cutting it, you're looking for an :>acceptable way for me to be pushed out of public debate by a :>bunch of foul-mouths and vandals. [...] :>This kind of noise is far more effective than one may realize. : :Calling postings "noise" is again a subjective assessment of content. :Your assessment of their postings is no more valid than their :assessment of yours; your opinion of the content of their articles :carries no more weight than their opinion of the content of your :articles. Who's to say whose content is better or worse? : :>I've never accepted less than "the same" treatment before :>and I'm not going to start now. : :News administrators do cancel massively cross-posted stuff. If it :happens to you, you're getting the same treatment as everyone else. :-IAN! Ian! D. Allen aa610@freenet.carleton.ca System Administrator |Ottawa : The National Capital FreeNet Libertel de la Capitale nationale |Canada ------------------------------------------------------ :From: news (News Administrator) :Subject: Net abuse :Date: Thu Aug 10 22:48:52 1995 :To: bc726 :Cc: complain, exec : :Dear Mr. Turmel: : :It seems that not a day goes by that I don't recieve one or more complaints :about your behaviour on Usenet. Most of these complaints come not from the :content of your posts, but from the manner in which you post them. It :appears as if you, inspite of my warning of a few days ago, are continuing :the following inappopriate behaviours: :- massive cross posting to inappropriate groups. :- repeating the same message over and over again. : :Both of those behaviours are not allowed here on NCF, for the very simple :reason that they are considered bad net.citizenship. We cannot allow the :misbehaviour of one person to make the entire user community of NCF look bad. :Therefore, in the past I have cancelled many of your posts that were :inappropriate. One time my scripts returned a list of over 300 posts, and I :did not have time to look at all 300. Instead I looked at 20 or so at random :and discovered that all 20 of them were actionable, so I cancelled the whole :lot. I regret that I might have cancelled many posts that were not :actionable, but at the time I had no choice. : :Please be advised that several of the people who read and post to :news.admin.net-abuse.announce have also expressed dismay at your behaviour, :and may have also taken action against your posts. : :I am writing you to ask you not to continue in this manner of behaviour. NCF :is not a right, it's a priviledge. That priviledge may be revoked at any :time. I have forwarded many of the complaints I have received about your :behaviour to the NCF Board, and I understand they are considering what to do :about you. I'm sure a promise to behave like a good net citizen would help :your case tremendously. : :The behaviours I am asking you to cease are: :- cross posting to groups that you do not read and to which your posts do not :apply. Most specifically, stop posting to regional hierarchies outside of :yoru region. Many complaints have resulted from your posting to uk.misc and :uk.general because your postings have nothing to do with the United Kingdom. :- Repeating the same posting again and again. :Thank you for your cooperation in this matter. :-- :Paul Tomblin -- News Administrator, National Capital Freenet :Internet: news@freenet.carleton.ca or ptomblin@compass.telemax.com ------------------------------------------------------ :From: bc726@FreeNet.Carleton.CA :Subject: Net abuse :Date: Sun Aug 13 19:50:17 1995 :To: news,complain,exec : ::From: news (News Administrator) ::Thu Aug 10 22:48:52 1995 ::Dear Mr. Turmel: ::in spite of my warning of a few days ago, :: : I'm sorry but I did not remember seeing any warning from you :within the last few days. Perhaps I accidently discarded it due to the :recent high volume. Could you send me the original message and the :date it was sent and I'll check again? :John Turmel ------------------------------------------------------ :From: ab401 (Paul Tomblin) :Subject: Re: Net abuse :Date: Sun Aug 13 20:24:46 1995 :To: bc726 :Cc: news, complain, exec :> :> within the last few days. Perhaps I accidently discarded it due to the : ^^^^^^^^^^^^^^^^^^^^^^^^ : This sentence no verb. : :> recent high volume. Could you send me the original message and the :> date it was sent and I'll check again? :> John Turmel :> :If you are looking for a copy of one or both of my warnings about your :behaviour, then I'm afraid I can't help you. Maybe somebody else can? ------------------------------------------------------ :From: bc726@freenet.carleton.ca (John Turmel) :Subject: Re: Net abuse :Date: Sun Aug 13 21:24:37 1995 :To: ab401 :>If you are looking for a copy of one or both of my warnings about your :>behaviour, then I'm afraid I can't help you. Maybe somebody else can? :> :Could you tell me that date of the message and I'll check my files. :John Turmel --------------------------------------------------- :From: ab401 (Paul Tomblin) :Subject: Re: Net abuse :Date: Mon Aug 14 06:47:42 1995 :> Could you tell me that date of the message and I'll check my :> files. :> :Can't help you there. --------------------------------------------------- :From: aa333@freenet.carleton.ca (Richard P. Taylor) :Subject: [news: Net abuse] :Date: Mon Aug 14 12:59:10 1995 :To: bc726 :Cc: news :Mr. Turmel, :Your message was truncated, but I believe you were asking for another copy :of this warning message. :Richard Taylor, NCF Board Secretary : ================= Begin forwarded message ================= : From: news (News Administrator) : To: bc726 : Cc: complain, exec : Subject: Net abuse : Date: Thu, 10 Aug : ::It seems that not a day goes by that I don't recieve one or more complaints ::about your behaviour on Usenet. Most of these complaints come not from the :=-=-=-=-=-=-=-=-=-=-=-=-=-=-= :Richard P. Taylor I've helped NCF meet the challenge! :aa333@FreeNet.Carleton.Ca Have you? ==> go challenge :National Capital FreeNet Board Secretary ------------------------------------------------------ :From: bc726@freenet.carleton.ca :Subject: Net abuse :Date: Tue Aug 15 1995 :To: aa333 (Richard Taylor) : : Actually, the message you sent me is the same and only one I :received from the news administrator. : I was interested in the "warning of a few days ago" mentioned :above and which I did not receive. : One final question: is it possible to purchase more memory for :several meg of information in a Freenet web page? :John C. Turmel ------------------------------------------------------ :From: ab401 (Paul Tomblin) :Subject: Re: Net abuse :Date: Wed Aug 16 06:55:20 1995 :To: bc726 :Cc: aa333, news : :> : From: news (News Administrator) :> : Dear Mr. Turmel: :> :inspite of my warning of a few days ago, are continuing :> : :> Actually, the message you sent me is the same and only one I :> received from the news administrator. :> I was interested in the "warning of a few days ago" mentioned :> above and which I did not receive. : :I don't have a copy of it, sorry. :Paul Tomblin, Freenet News Administrator. Currently living in Rochester, NY --------------------------------------------------- :From: bc726@FreeNet.Carleton.CA (John Turmel) :Subject: TURMEL: NCF did delete all our posts everywhere :Date: Thu Aug 17 00:16:52 1995 : : Many of you may have noticed that on Sunday Sept. 23, all of our :discussions on "TURMEL:" related topics were deleted from all 14 :newsgroups I cross-posted to. Also erased were all your responses. I :wrote letter of complaint to the National Capital Freenet: : :: NOTICE OF CLAIM :: On Sunday July 23, I found out that all my posts and those ::of my correspondents for the last two weeks had been deleted from ::the ncf.general newsgroup. They were also deleted from a total of ::fourteen(14) out-side newsgroups I attend. ::I was not informed of a problem. ::I was not given a chance at representation. ::I would like to know: ::1) Why this was done? ::2) What discussions took place? ::3) How this was done? ::4) Who authorized that this be done? :: Unless there is authority for such censorship, I would request ::that such actions be curtailed in future and my messages be ::immediately returned. :: I have no wish to get embroiled in an possible civil court ::litigation with the NCF but the arbitrary treatment I received ::must be explained. ::John C. Turmel, B. Eng., bc726@freenet.carleton.ca : : On Jul 27 1995 in article #30518 in ncf.general, :John Stewart -- Computing and Communications Services, Carleton University :Internet: jstewart@ccs.carleton.ca 613-788-2600x3707 :Freenet related queries: xx104@freenet.carleton.ca wrote: : :: Since you crosspost to many different newsgroups your postings are ::circulated to thousands of different sites in the world. The requests to ::cancel your postings could have originated at any one of these sites. :: Most news software in use today performs little or no authentication on ::the postings submitted to it. As a result someone with knowledge of how ::the news system works can easily forge cancel requests for someone elses ::postings. :: ::: 4) Who authorized that this be done? :: No one presumably. It was most likely just an act of vandalism commited ::by someone who has been careful to cover their tracks. The information ::highway equivalent of having someone paint grafitti on your house. : : In article #30528, Mike Anderson, Administrative Coordinator, :xx001@FreeNet.Carleton.CA (FreeNet Registrar) wrote: : ::John Turmel's posts were not deleted by NCF staff. In the case of any ::action of this nature (deletion of abusive, libellous or hateful postings, ::account suspensions or cancellations), every effort is made to contact the ::member in question to resolve the situation. NCF carefully considers these ::situations, and attempts to avoid unilateral actions as much as possible. :: ::As John Stewart says, anyone at any site where Mr. Turmel's postings ::appear may have been able to delete them without too much trouble. There ::is little that NCF can do in this situation. There have been complaints ::from other sites (particularly in New Zealand) that Mr. Turmel has been ::jamming their newsgroups. Mass cross-posting is a breach of accepted ::standards of netiquette. The deletion of Mr. Turmel's postings is ::the result of someone has obviously feels that he has not been adhering to ::those standards. : : In article #30714, aa610@freenet5.carleton.ca (Ian! D. Allen :[NCFreeNet]) continued: : :::In article <3vb2fg$sdo@knot.queensu.ca>, 3mpa@qlink.queensu.ca says... :::[...] Also, being in a position of authority :::implies a responsibility, and the obligation, to sometimes take action to :::correct a problem, they had some obligations to consider when they took :::their action. That doesn't seem to be the case here, there seemed to be :::no official action. :: ::Lisa Donnely and I have now looked into the deletions. She will post a ::statement about NCF involvement soon. Sorry for the delay -- we are ::having problems contacting our News admin by phone and coordinating ::the opinions of various NCF Board members and staff. ::-IAN! Ian! D. Allen aa610@freenet.carleton.ca System Administrator |Ottawa :: The National Capital FreeNet Libertel de la Capitale nationale |Canada : : On Aug 10, 1995, I received a private message informing me that :the person who had deleted all of our posts was the News Administrator :Paul Tomblin, news@freenet.carleton.ca. He had been surrepticiously :canceling my posts prior to July 23 and on July 23, he cancelled the :whole lot. I'm seeing what I can do about restraining such covert and :arbitrary censorship. :John Turmel ------------------------------------------------------ :Article #31185 (31190 is last): :From: ab401@freenet5.carleton.ca (Paul Tomblin) :Subject: Re: TURMEL: NCF did delete all our posts everywhere :Date: Thu Aug 17 18:52:33 1995 : :Original newsgroup line: :>Newsgroups: tor.general,ont.general,can.general,can.taxes,can.politics, ::ncf.general,alt.conspiracy,sci.econ,alt.christnet.philosophy,nz.general, ::nz.politics,sci.engr,aus.general,aus.politics,uk.misc,uk.politics, ::ncf.sigs.business.freedata,can.legal,ncf.admin : :In a previous article, bc726@FreeNet.Carleton.CA (John Turmel) said: :> :>Subject: TURMEL: NCF did delete all our posts everywhere :> :> Many of you may have noticed that on Sunday Sept. 23, all of our :>discussions on "TURMEL:" related topics were deleted from all 14 :>newsgroups I cross-posted to. Also erased were all your responses. I :>wrote letter of complaint to the National Capital Freenet: :> : :I'm beginning to thing you really don't get it, do you Turmel? I told you to :stop massive cross posting, because it was causing lots of complaints. You :continued to cross post massively and inappropriately, so I took action and :on a Friday a few weeks ago (Certainly NOT on Sunday Sept. 23 - it's only :August on this planet) I deleted your posts. I DID NOT DELETE ALL THE :RESPONSES, unless they also came from an NCF member and they were also :excessively cross posted. : :I also wrote you a letter stating once again, and maybe a bit more clearly :than the first time, that the NCF will not tolerate excessive cross posting, :which is defined at NCF as more than 10 groups for a single post or multiple :copies of the same post. So how you do you respond? With this article, :cross posted to EIGHTEEN newsgroups! I'm sorry, but you've been warned, and :you've had action taken against you before. If you read what I wrote in that :letter, you can probably guess what action I now must take - I'm going to :cancel this message, and any other copies of it I find. : :If you have complaints against these actions, take it up with the NCF board, :don't cross post it to hell and back. If you are unable to follow NCF rules :and guidelines, then go find yourself another net provider. I'm sure if :you're willing to spend enough, you'll find one that doesn't care what sort :of net abuse is perpetrated by its members. NCF does care, and NCF is not :going to stand for it. :-- :Paul Tomblin, Freenet News Administrator. Currently living in Rochester, NY ------------------------------------------------------ :Article #31206 (31243 is last): :From: xx412@FreeNet.Carleton.CA (Lisa K. Donnelly) :Subject: Cancellation of Turmel's Posts :Date: Fri Aug 18 14:17:36 1995 : :Mr. Turmel's post were cancelled by the NCF New Administrator. After :repeated warnings Mr. Turmel continued to violate NCF News Administration :protocols by continued excessive multiple and cross postings. : :We apologize for the inaccurate statement posted by the NCF Administrative :Coordinator, Michael Anderson. He reacted immediately after the :cancellation and prior to full research of the details. : :I had refrained from a formal posting myself as our News Administrator, :Paul Tomblin, had contacted Mr. Turmel with all the details. : :The Board has confirmed the authority of the NCF News Administrator to :cancel excessive multiple and excessive cross postings. These actions will :be accompanied by a letter to the member in violation. This letter will be :cced to the Executive Committee of the Board and the Complaints department. : :We hope that all NCF members will respect the on-line community we have :all built together and share on a regular basis. Ideally, normal :conventions of what constitutes polite behavior and good citizenship is :desirable - much like what one expects from the neighbors who live on :your street or in your apartment building. : :These types of conventions can be ambiguous so it is also necessary to have :guidelines. Here at NCF we try to keep our restrictions minimal. None :the less, we do have criteria for appropriate use of the News system and :are interested in maintaining safe and effective usage. : :In addition, I would like to remind the membership that item 6. in the NCF :Membership Agreement deals with adherence to NCF rules and regulations. : :item 6. NCF Membership Agreement : :"To Abide by such rules and regulations of system use as may be set down :from time to time by the Board of the National Capital FreeNet." : :Excessive cross postings and excessive multiple postings are an example of :such rules and we have a News Administrator who monitors and requests :compliance and good citizenship - and who takes action when news :administration protocols are violated. : :Lisa K. Donnelly, xx412@freenet.carleton.ca :Executive Director, National Capital FreeNet ------------------------------------------------------ :Article #612 (637 is last): :Newsgroups: news.admin.net-abuse.announce, :From: clewis@ferret.ocunix.on.ca (Chris Lewis) :Subject: EMP/ECP cancelled :Date: Tue Aug 8 10:40:35 1995 :-----BEGIN PGP SIGNED MESSAGE----- :The Breidbart Index (BI) is defined as the sum of the square roots of :how many newsgroups each article was posted to. This is a measure of :Excessive Crossposting (ECP) also known as "Velveeta". :The heuristics for cancels are based _only_ on one or more of the :following measures: : 1) 25 or more separate copies of the article were posted (EMP), or : 2) 5 or more separate copies of the article were posted and : the BI is > 30 (ECP), or : 3) is a continuation of a previous EMP/ECP, within a 45 day : sliding window. That is: if the articles posted within the : past 45 days exceeds the thresholds in (1) or (2), it : gets removed. _Unless_ the originator has made a clear : and obvious effort to cease spamming (which includes an : apology and undertaking to do so in news.admin.net-abuse.misc). : This includes "make money fast" schemes which passed the : EMP/ECP thresholds several years ago. : 4) broken gateways regurgitating old articles with new messageids. :The first three are generically called "spam". The fourth is a "spew". :General consensus puts the spam cancel threshold strictly as a BI of 20. ------------------------------------------------------ In my next post on the subject, I'll parse the latest responses and answer any charges. John C. Turmel, B. Eng. **************************************************** From elastic!jaywon.pci.on.ca!noc.tor.hookup.net!hookup!torn!nott!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!ah787 Fri Aug 25 08:51:07 1995 Xref: elastic can.general:4618 can.legal:557 can.politics:3583 Newsgroups: can.politics,can.legal,ncf.general,can.general Path: elastic!jaywon.pci.on.ca!noc.tor.hookup.net!hookup!torn!nott!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!ah787 From: ah787@FreeNet.Carleton.CA (Bill Stuart) Subject: TURMEL, SHUT UP AND DEAL WITH IT Message-ID: Sender: ah787@freenet3.carleton.ca (Bill Stuart) Reply-To: ah787@FreeNet.Carleton.CA (Bill Stuart) Organization: The National Capital FreeNet Date: Fri, 25 Aug 1995 06:07:39 GMT Lines: 18 Let me make this perfectly clear. 1) Crossposting mass amounts of material is against NCF policy. 2) Paul Tomblin is the news adminsitrator. 3) Paul tomblin deleted your posts because he has the authority to do so, and it was decided by the readers of certain newsgroups that you are breaking NCF policy. What about this don't you understand? You do not have the right to free speech on the internet or in real life. You must obey certain rules in both cases. Your lawsuit will last about 15 seconds, if it's heard at all. -- From elastic!jaywon.pci.on.ca!noc.tor.hookup.net!hookup!torn!nott!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Wed Aug 30 07:12:08 1995 Xref: elastic can.general:5491 can.legal:821 can.politics:4380 can.taxes:344 news.admin.net-abuse.misc:3309 ont.general:5416 tor.general:5482 Newsgroups: can.legal,ncf.general,tor.general,ont.general,can.general,can.politics,can.taxes,ncf.sigs.business.freedata,news.admin.net-abuse.misc,alt.conspiracy Path: elastic!jaywon.pci.on.ca!noc.tor.hookup.net!hookup!torn!nott!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: Posts deleted without notice Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) On Aug 28 1995, in article #31408 in Newsgroups: ncf.general, Reply-To: bc726@FreeNet.Carleton.CA (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Tue, 29 Aug 1995 20:00:17 GMT Lines: 216 ab401@freenet5.carleton.ca (Paul Tomblin) wrote: :Much as I hate to get into a battle of wits with an unarmed :opponent, I feel I should correct the most egregious of the outright :lies in Turmel's latest spew. Of course, I don't have the time to :correct all of them, because there are too many. : This is a first. I've been accused many times of writing too much, writing where I'm not wanted but no one has ever accused me of lying before. I don't lie and lying in public is especially stupid as we'll soon see. :In a previous article, bc726@FreeNet.Carleton.CA (John Turmel) said: :: In it, I mentioned that I had received a private message on Aug ::10 1995 informing me that the person who had deleted all of our posts ::was the National Capital Freenet News Administrator Paul Tomblin, :Actually, I informed myself you on both occassions that I had :cancelled your posts, and why. : So that isn't a lie. On Aug. 10, three weeks after the Great Deletion, I found out who did it through private mail. None of the ncf.general readers knew at that point. ::news@freenet.carleton.ca. He had been surreptitiously canceling my ::posts prior to Friday July 21 and on July 21, he canceled the whole ::lot. :: :July 21st was the first time I had cancelled any of Turmel's posts. : That's hard to believe. If we go over his first Aug. 10 letter to me titled "Net abuse," he also said: :Therefore, in the past I have cancelled many of your posts that were :inappropriate. One time my scripts returned a list of over 300 :posts, and I did not have time to look at all 300. Instead I looked :at 20 or so at random and discovered that all 20 of them were :actionable, so I cancelled the whole lot. I regret that I might have :cancelled many posts that were not actionable, but at the time I had :no choice. : After the Great Deletion, as noted by several people, I cut back on my posts from 3 or 4 a day to 14 newsgroups to 2 or 3 a week. There was never the opportunity after July 21 for Mr. Tomblin to have found 300 of my posts to cancel. So July 21 was the only day when there were 300 articles out there for Mr. Tomblin to cancel. Yet, he does say that in the past, he had been canceling many of my posts that were "inappropriate." Seems his own words belie his statement that he first cancelled me on July 21. I'd believe he first cancelled me everywhere on July 21 but I believe his own words that he'd been canceling me previous to the Great Deletion. :: I had mentioned that "I have no wish to get embroiled in an ::possible civil court litigation with the NCF but the arbitrary ::treatment I received must be explained." :: :And it was. I wrote to you to explain why I'd done it, and the NCF :Board has issued an official statement to explain that they support :my actions and why. : No, the arbitrary treatment I received was not explained by NCF. We all thought it was a vandal. And you didn't write until two weeks after I'd complained. :: I know many consider it a breach of Netiquette to publish one's ::private correspondence without permission but since one's mail is ::admissible in any Canadian court of Justice, it's a Netiquette that is ::voluntary but which has no basis in law. I've always tried to accord :: :Ah, well this is another violation of your user agreement, Turmel. I :think the board would be very interested to see that you respond to :complaints about your violatiing your NCF agreement by further :violations of it. : I would have figured that you wouldn't want the readers to know what you had written in your first letter but it's pretty tough for me to defend myself without telling them the whole truth. Though you'd hoped that Netiquette would have allowed to you hide your actions, since this could be justice-bound, I think the readers were entitled to know what you had said. :: Considering he not only has his finger on the "cancel" button ::but is willing to use it unilaterally, I don't think it's unfair on :: :Look up the work "unilaterally" in a dictionary. I have the full and :complete support of the NCF Board of Directors for my actions. : No, you didn't have support until after the fact. Otherwise, why did the NCF originally respond that it had been done by vandals and they usually contact a member before acting in that way. No one knew what you had been doing up until then and no one would have known had I not complained. ::part to cite what he said in private in its entirety. I'm also ::reposting some relevant posts that were canceled. :: :Ah. So adding the 10 newsgroups that this is posted to, to the :dozens or so that they were posted to originally, we find you are :guilty once more of excessive multi posting, and therefore in further :violation of your NCF User Agreement. What's excessive? I could have reduced my newsgroups from 13 to 10 if I had been told. And is 3 in excess of 10 really that massive an abuse when you first canceled my articles? Not having worried about members' use of bandwidth before, I joined the Bandwidth Patrol in news.admins.net-abuse.announce and wonder if I had been announced. Older files were erased within days and I couldn't find out if there had been discussion on cancelling me or if Mr. Tomblin had simply deleted me all on his own. Yet I did notice that an index of abuse was used for other cancellations and I wonder why it wasn't used with mine. :The Breidbart Index (BI) is defined as the sum of the square roots of :how many newsgroups each article was posted to. : :This is a measure of Excessive Crossposting (ECP) also known as "Velveeta". :The heuristics for cancels are based _only_ on one or more of the following :measures: : 1) 25 or more separate copies of the article were posted (EMP), or : 25! Or more! 1 copy to 14 newsgroups adds up to 14 copies, only 56%. : 2) 5 or more separate copies of the article were posted and : the BI is > 30 (ECP), or : No matter how you cut it, my 3 or 4 (3.5BI) articles rarely added up to over 15, let alone over 30. : 3) is a continuation of a previous EMP/ECP, within a 45 day : sliding window. It was not a continuation of a previous EMP/ECP so, not having spammed, :That is: if the articles posted within the : past 45 days exceeds the thresholds in (1) or (2), it : gets removed. _Unless_ the originator has made a clear : and obvious effort to cease spamming (which includes an : apology and undertaking to do so in news.admin.net-abuse.misc). : This includes "make money fast" schemes which passed the : EMP/ECP thresholds several years ago. : 4) broken gateways regurgitating old articles with new messageids. :The first three are generically called "spam". The fourth is a "spew". :General consensus puts the spam cancel threshold strictly as a BI of 20. : During the rush of complaints, I was posting to 13 newsgroups. At the end, to 14. sqr(14) = 3.75 per post. For the last cancellation, my Breirbart Index went from 3.75 to 4.8. So what? It still doesn't even approach the BI= 20 or BI=30 for cancellations. So you can scream that 13 is "massive cross-posting" when 10 is allowed but I don't think it's much of a case. Besides, I had explained how vandals were cross- posting to an extra 23 newsgroups. I have many complaints about posting to groups I didn't post to. I'd like to know what percentage of the complaints NCF received which were from conferences to which I had not posted and how many were from conferences to which I had. :: On Sunday July 23, I found out that all my posts and those ::of my correspondents for the last two weeks had been deleted from :: :This is another lie. None of your correspondents posts' were deleted. : No. I don't lie. It was certainly easy to check which I did. Why would I have claimed before I knew what you'd done that they had all been deleted if they had not. Since most of the topics responded to by other writers were titled "TURMEL," this could have happened if you searched for "TURMEL" in the title rather than "John Turmel" in the authors. But nevertheless, on the week-end of July 23, I found out that everyone's articles had been cancelled, not just mine, and complained accordingly. So I have not lied. :: I would like to know: :: 1) Why this was done? :: 2) What discussions took place? :: 3) How this was done? :: : 4) Who authorized that this be done? :These questions were all answered in detail BEFORE you posted this :diatribe. : Readers of ncf.general and other newsgroups had been left with the impression that vandals were responsible and that no one from NCF had done it. I simply corrected the false impression with a little truth. So the gist of my complaint is the same. No one from NCF knew you were cancelling my articles on your own initiative. By your own statement, you cancelled 300 articles yet that could have only occurred on July 21 when there were 300 articles to be cancelled. And yet, you said that you had been cancelling them with no notice to me prior to the Great Deletion. And therein lies the truth of my statement that you were cancelling them unilaterally, surreptitiously and without notice since no one at NCF knew what you were doing. You also accused me of: :- repeating the same message over and over again. : Short of a few stock equations, most of my material was original. Besides, with new members joining everyday, if I want to post a certain poem or piece of information every few months, why shouldn't they get the same opportunity older members had? The point is that you deleted my posts without any recourse to me. I'd like to know when you first started surreptitiously canceling my articles. Did you keep a record? Where's the record? Why do they have the news.admin.net-abuse.announce newsgroup where things seem based on the Breidbart Index if you can cancel articles without telling anyone or being held to account for your computations? I see rules that say BIs of 20 or 30 or bad but you say the BI for my articles should be sqr(10) = 3.16. Is my BI=3.75 so massively worse than BI=20 for others that you don't' have to consult with anyone? I doubt it. So, I think I've shown that I have not lied and that you have belied yourself. In public. What a sad spectacle. And try to keep the timing in perspective. I'm not going to argue about your actions after NCF became aware of your actions and offered support until you've explained your actions before they became aware. More parsing of your first articles in the next article. John C. Turmel, B. Eng. **************************************************** From: fche@elastic.org (Frank Ch. Eigler) Subject: (fwd) Re: TURMEL: Posts deleted without notice Date: Mon, 4 Sep 95 13:38 EDT To: fche -------- Xref: elastic can.general:6433 can.legal:1015 can.politics:5150 can.taxes:375 news.admin.net-abuse. misc:3827 ont.general:6217 tor.general:6182 Newsgroups: can.legal,ncf.general,tor.general,ont.general,can.general,can.politics,can.taxes,ncf.si gs.business.freedata,news.admin.net-abuse.misc,alt.conspiracy Path: elastic!exorcist!lethe!abyss!news.compulink.com!fonorola!news.achilles.net!cunews!freenet.car leton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: Posts deleted without notice Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Reply-To: bc726@FreeNet.Carleton.CA (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Mon, 4 Sep 1995 05:31:55 GMT Lines: 303 Subject: Re: TURMEL: Posts deleted without notice Since I received no answer, I'll state my questions and objections again. In his last message, Paul Tomblin wrote: Paul Tomblin, the (News Administrator) wrote: :the following inappropriate behaviours: :- massive cross posting to inappropriate groups. : :excessive cross posting which is defined at NCF as more than 10 :groups for a single post or multiple copies of the same post. : This is the first I've heard that 10 groups is the NCF limit. Q. Why didn't he tell me? Q. Was 13 really so "massively" in excess of 10 to warrant surreptitious cancellations? :- repeating the same message over and over again. : Notice that at this point, there have been no details but I'm presumed guilty: :Both of those behaviours are not allowed here on NCF, for the very simple :reason that they are considered bad net.citizenship. We cannot allow the :misbehaviour of one person to make the entire user community of NCF look bad. :I'm sure a promise to behave like a good net citizen would help :your case tremendously. : As yet, he hasn't told me what I've done wrong, only that I've been found guilty, punished and told to behave. :The behaviours I am asking you to cease are: :- cross posting to groups that you do not read : Q. How can he possibly accuse me of not reading the groups I post to? :and to which your posts do not apply. : And so far, he haven't once detailed which posts did not apply to which newsgroups? In fact, no one ever has. :Most specifically, stop posting to regional hierarchies outside of :your region. Many complaints have resulted from your posting to :uk.misc and uk.general because your postings have nothing to do with :the United Kingdom. : With 350 LETSystems and growing in their midst, I and my correspondents think that my posts on LETSystems were quite relevant to the United Kingdom even if those unfamiliar with it don't. :- Repeating the same posting again and again. : Q. Having reposted very few articles other than some cancelled ones, I'd like more details on this. :So how you do you respond? With this article, :cross posted to EIGHTEEN newsgroups! I'm sorry, but you've been warned, and :you've had action taken against you before. If you read what I wrote in that :letter, you can probably guess what action I now must take - I'm going to :cancel this message, and any other copies of it I find. : With eighteen newsgroups, it looks like the BI=4.25, nowhere near the 20 referred to as necessary for cancellation. Q. What BI did he have for that particular cancellation? :If you have complaints against these actions, take it up with the NCF board, :don't cross post it to hell and back. : Sure I'll take it up with the NCF when my questions are answered but I think that people from those newsgroups who had their contributions cancelled have a right to know who did it. :If you are unable to follow NCF rules :and guidelines, then go find yourself another net provider. I'm sure if :you're willing to spend enough, you'll find one that doesn't care what sort :of net abuse is perpetrated by its members. NCF does care, and NCF is not :going to stand for it. : Q. "Net abuse?" "It?" I'm still waiting for details. :Much as I hate to get into a battle of wits with an unarmed :opponent, I feel I should correct the most egregious of the outright :lies in Turmel's latest spew. Of course, I don't have the time to :correct all of them, because there are too many. : Ditto. He wrote: :Actually, I informed you myself on both occassions that I had :cancelled your posts, and why. : Yet, in his Aug. 10 letter, he admitted: :Therefore, in the past I have cancelled many of your posts that were :inappropriate. : Q. Which is it? He cancelled my posts on only two occasions when he informed me or he cancelled many of my posts on many occasions without informing me? :One time my scripts returned a list of over 300 posts, :Instead I looked at 20 or so at random and discovered that all 20 of :them were actionable, so I cancelled the whole lot. : Sure. The majority of which I did not start: 1) Subject: TURMEL DEVOURED BY SPACE GUPPY From: ah787@FreeNet.Carleton.CA (Bill Stuart) 2) Subject: CHRIST: Why does Turmel speak nonsense? From: kendall@io.org (David Kendall) 3) Subject: Re: Rising Kook: TURMEL & the differential bible From: karl mamer 4) Subject: TURMEL: My ego is so big that.... From: ae906@ccn.cs.dal.ca (Christian Rose) 5) Subject: Can we get Turmel out of here? From: Herman De Vries 6) Subject: Turmet - Oops From: Herman De Vries 7) Subject: TURMEL: headswell From: alh@postoffice.utas.edu.au (Alan Hughes) 8) Subject: Turmel and cross-posting From: av580@FreeNet.Carleton.CA (Jeff Gagnon) 9) Subject: John Turmal And Ego's From: av580@FreeNet.Carleton.CA (Jeff Gagnon) 10) Subject: John Turmel, Net Abuser Extraordinaire From: Lazarus 11) Subject: WHO THE $#%@ IS TURMEL?????????? From: vils@daystorm.com (Vils M. DiSanto) 12) Subject: Is Turmel the next Mutlu/Argic? From: spmaguir@chat.carleton.ca (Sean Maguire) 13) Subject: Re: Turmel's still here - Im gone From: ak089@torfree.net (Lorie Lanktree) 14) Subject: TURMEL: Kook of the Month Nomination From: kamamer@io.org (karl mamer) 15) Subject: Re: Hey Idiot! From: cyberknght@aol.com (CyberKnght) 16) Subject: Turmel... From: chrisw@skypoint.com (Christopher Wright) 17) Subject: Re: Can we do something about Turmel? From: mjo@moc.govt.nz (Mark Ogilvie) 18) Subject: John Turmel From: s3collin@mc1adm.uwaterloo.ca (Sharon Collins) 19) Subject: Re: Regardng John Turmel... From: Friday 20) Subject: Can we have nz.general back please? From: bruce@qnx.nacjack.gen.nz (Bruce Simpson) 21) Subject: My Dear Mr. Turmel From: bf766@FreeNet.Carleton.CA (Andre L. Ouellette) 22) Subject: ncf.general = ....TURMEL.... ???!??! From: bp590@FreeNet.Carleton.CA (Scott D. Green) 23) Subject: Get rid of this TURMEL guy From: douglase@iconz.co.nz (Elizabeth Douglas) 24) Subject: GIVE TURMEL A SEX CHANGE, DEPORT HIM, AND CHARGE HIM WITH HATE CRIMES From: ah787@FreeNet.Carleton.CA (Bill Stuart) :I'm beginning to thing you really don't get it, do you Turmel? I :I told you to stop massive cross posting, because it was causing :lots of complaints. You continued to cross post massively and :inappropriately, so I took action and on a Friday a few weeks ago :(Certainly NOT on Sunday Sept. 23 - it's only August on this planet) I :deleted your posts. : He makes it sound like he warned me "a few weeks ago" of massive cross-posting, that I had persisted and that he had taken action "a few weeks ago." Yet, in his Aug. 10 letter, he said: :It appears as if you, inspite of my warning of "a few days ago," are :continuing the following inappopriate behaviour... Q. Which is it? He cancelled me "a few weeks ago" after telling me to stop "a few weeks ago" or he cancelled me a "few weeks ago" after telling me to stop "a few days ago." Looks like I had not been warned a few weeks ago and he was acting unilaterally and surreptitiously. :July 21st was the first time I had cancelled any of Turmel's posts. : But the evidence suggests the whole lot was cancelled on July 21. :Therefore, in the past I have cancelled many of your posts... The evidence further suggests that these many posts were cancelled before July 21. He played the censor and found 20 of my articles "actionable?" Q. How were they actionable? Q. Why weren't these actionable items mentioned in the proper fora? Q. Why wasn't I told that they were actionable? Q. Where is the log of the many, not two, posts he cancelled? Q. Does his job description include judging what is "appropriate?" Q. Considering I was told that an effort is to be made to alert members, do I not have a right of appeal against his decisions? :: And that weekend, I found out that all my posts and those of my ::correspondents had been deleted... :: :This is another lie. None of your correspondents posts' were deleted. :I DID NOT DELETE ALL THE RESPONSES, unless they also came from an NCF :member and they were also excessively cross posted. : Not only were my and all my respondents' posts cancelled but all these and their respondents' posts also disappeared from the same 13 newsgroups on the same day mine did. :Please be advised that several of the people who read and post to :news.admin.net-abuse.announce have also expressed dismay at your behaviour, :and may have also taken action against your posts. : Q. Why is he trying to suggest that others who have expressed dismay may have been the vandals who may have also taken action against my posts? Despite his denials, the odds against it being coincidence that some real vandals were erasing all my respondents' articles and all those above articles at the very same time he was erasing mine are just too high for me to accept. ::the arbitrary treatment I received must be explained." :: :And it was. I wrote to you to explain why I'd done it, and the NCF :Board has issued an official statement to explain that they support :my actions and why. : No, the arbitrary treatment I had received was never explained to and would not have been explained to NCF members without my complaint. :These questions were all answered in detail BEFORE you posted this :diatribe. : First, as you'll note in his messages, there were no details at all. And readers of ncf.general and other newsgroups had been left with the impression that vandals were responsible and that no one from NCF had done it and no one would have known had I not posted the "diatribe" since no one at NCF knew what he had been doing. He also accused me of: :- repeating the same message over and over again. : Q. Are there any details? :Look up the work "unilaterally" in a dictionary. I have the full and :complete support of the NCF Board of Directors for my actions. : No, you didn't have support until after the fact because the NCF originally responded that it had been done by vandals and that they usually contact a member before acting in that way. ::part to cite what he said in private in its entirety. I'm also ::reposting some relevant posts that were canceled. :: :Ah. So adding the 10 newsgroups that this is posted to, to the :dozens or so that they were posted to originally, : Here's a perfect example of what I mean. After I've repeated many times that I posted to just over one dozen (13) newsgroups, that the vandals had posted to just under two dozen (23) more, he still insists on accusing me of originally posting to "dozens" in the plural. I was framed for the second dozen newsgroups and he'd have known if I had been given the chance to explain where the other two dozen newsgroups and the other two dozen topics came from. Q. Why weren't my cancellations announced like the real net abusers? Q. What was my Breidbart Index when he cancelled my articles? Q. What percentage of the complaints NCF received were from groups to which I had not posted and from groups to which I had? :I regret that I might have cancelled many posts that were not :actionable, but at the time I had no choice. : You not only zapped many dozens of hours of my work but you also zapped the work of many others on a dozen serious topics: "The Third Way?" "What National Debt?" "Greendollars are Timedollars in U.S.A." "Why did Christ speak in Parables?" "Rabson's Fable (amended)" "Guinness Record for most elections" "Christ's Bank Account." "Mathematics of Debt Slavery." "LETS Greendollar Press Reports" "Censorship." "Press Clippings." "Usury on sci.econ." "I'm a Pauper." I thought they were very interesting streams and I'm sorry to see them gone from public view. Quite a few people found them "most entertaining." And my correspondents weren't given a warning or the chance to object either. Q. I'd like to know when he first started surreptitiously canceling my articles? Q. Did he keep a record? Q. Where's the record? Q. Why do they have the news.admin.net-abuse.announce newsgroup? Q. Why is he calling me the liar? One shouldn't look for the straw in the other guy's eye until one is rid of the log in one's own eye. John C. Turmel, B. Eng. -- Frank Ch. Eigler // fche@elastic.org // eigler@vnet.ibm.com // fche@db.toronto.edu From elastic!exorcist!lethe!gts!gts-net!torfree!worldlinx.com!bottom.MTS.Net!canopus.cc.umanitoba.ca!newsflash.concordia.ca!news.mcgill.ca!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Sep 10 09:19:14 1995 Xref: elastic can.general:7261 can.legal:1186 can.politics:5918 ont.general:6957 tor.general:6958 Newsgroups: can.legal,can.general,can.politics,ncf.general,alt.conspiracy,ont.general,tor.general,ncf.sigs.business.freedata Path: elastic!exorcist!lethe!gts!gts-net!torfree!worldlinx.com!bottom.MTS.Net!canopus.cc.umanitoba.ca!newsflash.concordia.ca!news.mcgill.ca!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: TURMEL: Ontario Court of Appeal Varies Probation Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Reply-To: bc726@FreeNet.Carleton.CA (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Sat, 9 Sep 1995 06:09:53 GMT Lines: 413 TURMEL: Ontario Court of Appeal Varies Probation Conditions On Friday Sep 8 1995 at Osgoode Hall in Toronto, my application for an order staying my probation conditions pending my appeal against conviction for keeping Canada's largest common gaming house was heard before Justices Lacourciere, Labrosse and Austin of the Court of Appeal for Ontario. The following are the factums: ********************************************************************** APPELLANT'S FACTUM PART I: STATEMENT OF CASE: 1. On April 3, 1989, found-ins from my Blackjack game were acquitted by Provincial Court Judge Fontana at Ottawa and on April 8, 1989, upon an Agreed Statement of 19 Facts with the Crown, I was acquitted of keeping a gaming house by Judge Lennox. 2. Without reversing those decisions upon appeal, on July 20, 1993, I was once again charged with keeping a common gaming house after Ottawa Police raided my Casino Turmel, the largest Private Poker and Blackjack Casino in Ontario history, in "PROJECT ROBIN HOOD" at the Topaz Entertainment Plaza in Ottawa. 3. On May 16, 1994, I was convicted of keeping a common gaming house upon the same Statement of 19 Agreed Facts as that of 1989. On March 31, 1995, I was sentenced to (page 132): a) 3 years probation; b) 200 hours of community service; c) not gamble in any unlicensed premises; d) not associate with anyone with a Criminal Record; e) pay a $2,500 victim surcharge fine. PART II: SUMMARY OF FACTS: 4. Judge Wright cited Judge Fontana's decision acquitting my game (p117) and then noted: 5. "The amount, which I view as an aggravating factor, could well have been less if Mr. turmel had been charged immediately." (p112) 6. "I attach a great significance to this as a test case" (p114) 7. "Why Mr. Turmel was permitted to carry on so many months with the knowledge of the authorities... The casino was "fine tuned" as to the legislation. I take this as an indication of police uncertainty as to how to proceed." (p122) 8. "I ask myself why a conclusion, which was not obvious to the police with all their resources, should have been obvious to the accused.. There is no evidence of any change in the operations... "Defence urged that gain has never been interpreted as gain from gambling." (p123) 9. "Crown advanced a novel approach to this type of prosecution. I agreed with that interpretation and Mr. Turmel was convicted." (p124) 10. "Canadian courts have on occasion considered a test case as mitigating to sentence. (p124) 11. "In R. v. Stewart (no2) 35o.r. (2d) 185, Justice Krever: "There was no reason for the accused to believe that his conduct could be characterized as criminal. The accused cooperated and it was possible to get to the heart of the matter and the legal issue involved directly because of the agreed statement of facts and as a result of that co-operation." Krever granted an absolute discharge." (p125) 12. "Because of the aspects of this case as a trial case, the steps which Mr. Turmel took clearly to avoid breaking the law, including receiving written legal opinions, which have been provided to the court, in advising the police in advance, in operating openly for so many months with the knowledge of the authorities, by being upfront in the way in which he conducted his defence, in particular, admitting the essential elements of the Crown's case and arguing the issue on a legal basis, in my view, all go to create a unique and unusual fact situation, one which I would expect would never arise again." (p130) 13. "Again, I am placing particular emphasis on the factors which mark this as a test case. I recognize that another court might well have come to a different conclusion and may yet come to a different conclusion. (p131) PART III: ISSUES AT LAW 14. Judge Wright repeatedly mentions that this is a test case because of a brand new interpretation of the law. 15. The test issue is whether winnings through skillful play which were formerly acquitted by Judges Fontana and Lennox of any (b) subsection offences may now be caught under under subsection (a) gain. Section (a) deals with gaining money through sales from the keeping of the house whereas section (b) deals with winning chips from the games. All evidence produced by the Crown dealt with Section (b) winnings out of the games and no evidence was produced of Section (a) gainings out of the place. 16. Judge Wright's new test interpretation does away with the need for the four (b) subsections which define the illegal ways of winning versus the legal ways. Only with winnings now being defined as Section (a) gains could the judge reason that my winnings playing no- rake-off Poker in my home which never had constituted a gaming house offence before would constitute a Section (a) gain now. 17. On my specific question about my playing no-rake-off Poker in my home, Judge Wright re-stated: "I have addressed that issue in responding to submissions and the application that it might have even to a home if kept for the purpose of gain." (p127) 18. This appeal contains valid questions of res judicata, autrefois acquit, issue estoppel, abuse of process, Charter Rights abuses, and no mens rea. 19. The sentence barring the Appellant, one of Canada's top professional gamblers, from playing lawful high-stakes no-rake-off Poker in his home and the homes of others and restricting him to low- stakes high-rake-off Poker in charity casinos is a violation of my right to earn a lawful living. When the charity casinos close and the Poker game moves to someone's house, I am the only player who can't attend. 20. The Appellant has been the host of the Canadian Open Holdem Poker Championship for the past 5 years. Given that card-playing is my profession, the condition of the sentence which would not permit me to participate in my own legal tournament certainly restricts my chance to earn a living. Considering that this is a brand new interpretation of Section (a) gain, I submit that it would be unfair to restrict my formerly lawful livelihood until Judge Wright's "test case" has been adjudicated by a higher court. 21. Having so restricted my ability to earn a living and noting how I had contributed much voluntary community service when I was pursuing my profession, 200 hours of involuntary service would again be an onerous burden on the Appellant. 22. As the leader of the Abolitionist Party of Canada which is a party of paupers -- the police did dub me Robin Hood -- many of whom have criminal records, and given that my conviction is for a quite victimless crime and a "unique never-again case," the Appellant's opportunity to participate in the Canadian political process will be severely hampered by the condition not to associate with people with criminal records. 23. In particular, Mr. Denis Mazerolle who was convicted in Brampton Provincial Court of the same offence in which I was not only Mr. Mazerolle's counsel but also his primary witness. His sentence which explicitly prohibits him from communicating with his advisor and expert witness on the Mathematics of Gambling, John Turmel, has certainly prevented him from filing an appeal I could prepare for him. 24. Judge Wright added: "Mr. Turmel asserts he is now a pauper and there is no evidence to dispute that." (p131) 25. As the judge accepts that I am now a pauper and that the judge has restricted my possibilities to earn my livelihood, the $2,500 victim surcharge fine is an onerous burden on a pauper. 26. As I believe I fit Justice Krever's profile for a non- criminal intent case with subsequent co-operation, I am also seeking an absolute discharge for this test case. ORDER REQUESTED 27. The Appellant seeks an order that the sentence for keeping a common gaming house be stayed pending the adjudication of his appeal. For the Appellant: John C. Turmel, B. Eng., Dated at Ottawa on Monday Aug. 7, 1995. ********************************************************************** RESPONDENT'S FACTUM on Application for Stay of Sentence Pending Appeal PART I: RESPONDENT'S STATEMENT AS TO FACTS 1. On May 16, 1994, the Applicant was convicted by Mr. Justice Peter Wright of the Ontario Court (Provincial Division) of keeping a common gaming house pursuant to section 201(1) of the Criminal Code. He was not sentenced until March 31, 1995 because the Crown was granted an adjournment to prepare a forfeiture application which was subsequently dismissed. The Applicant appeals from conviction and sentence. 2. The Applicant received a suspended sentence and a three year term of probation. The probation order required, inter alia, that he perform 200 hours of community service, that he not communicate with any person known to him to have a Criminal Record with exceptions to be set out in writing by a probation officer, and that he "not be found in any place where there is gambling with cards or dice for money" excepting an establishment licensed for that purpose. The Applicant also was ordered to pay a victim fine surcharge of $2,500 in 24 months. 3. An agreed statement of facts was filed at trial. The Applicant had been openly running a "casino style" poker and blackjack operation from two locations in Ottawa. He had given advance notice to the police that he was going to do so and he had obtained legal opinions with respect to the legality of running such operations. (jct: And an acquittal) He subsequently opened the "Turmel Casino" on Baxter Road with seven blackjack tables and one poker table. (3) He also operated a much larger casino at another location on St. Laurent Blvd. Both casinos were operated for a profit. Reference: Reasons for sentence, page 117, l.30 to page 123, l.10. PART II: RESPONSE TO APPLICANT'S ISSUES A. JURISDICTION TO ORDER A STAY OF PROBATION ORDER 4. It is respectfully submitted that a probation order made pursuant to section 737 of the Criminal Code, and not made in conjunction with a sentence of imprisonment, comes into force on the date on which the order is made. The power to vary such an order is limited to the trial court on an application pursuant to section 738(3); or to a court of appeal pursuant to its powers under section 687, where the appellant has filed an appeal from sentence. However, Parliament has not conferred any express power upon a court of appeal to stay a probation order, or to suspend the operation of any conditions in a probation order, pending an appeal. Reference: Criminal Code R.S.C. 1985, c C-46, ss. 683, 687,737,738 [TAB 1] 5. It is respectfully submitted that, in the usual case, this Honourable Court has no jurisdiction to stay a probation order, or to suspend the operation of any of the conditions prescribed in it, pending appeal. Such a power is not recognized in the Criminal Code, and there is no statute expressly conferring upon this Honourable Court the power to stay a probation order or suspend the operation of any of its terms. Reference: Criminal Code R.S.C. 1985, c C-46, ss. 261, 679, 683 R. v Metro News (1985) 21CCC(3d) at 494-496 (Ont C.A.) [TAB 5] R. v Christoper Mark B, unreported judgment of Grange J.A. of the Court of Appeal for Ontario (in chambers) dated Aug. 14, 1986 [TAB 7]. R. v Banks (1990) 61CCC(3d) 189 (B.C. C.A.) [TAB 8] 6. It is respectfully submitted that under the Criminal Code, a court of appeal does not have jurisdiction to give an appellant relief from the effect of certain sentencing orders, pending the appeal. Under section 261, the court may stay an order prohibiting the appellant from operating a motor vehicle, pending the final disposition of the appeal. Under Section 679, an appellant who has received a custodial sentence may obtain release pending appeal. A court of appeal may, pursuant to section 683(5), suspend the obligation to pay a fine, or to make restitution, or to comply with a forfeiture order, or to pay a victim fine surcharge. Section 689 provides additional relief, in the case of orders for the restitution or forfeiture of property. As noted above, section 738 permits a trial court to modify a probation order. The implication is, it is submitted, that by conferring this express jurisdiction, Parliament did not intend to confer any jurisdiction on a court of appeal to stay a probation order pending appeal. Reference: CCC R.S.C. 1985, c C-46, ss. 261, 679, 683, 689, 738 [TAB 1] Welch v The King (1950) SCR412 at 428-429 [TAB 4] 7. It is respectfully submitted that in the absence of express statutory authority, the power to stay a probation order or to suspend the operation of any of its conditions pending appeal can only exist if it has been conferred by necessary implication. A court of appeal does possess the ancillary jurisdiction to make an order necessary to prevent the frustration of an appeal. Such ancillary jurisdiction must be exercised by the full court. Unless the inability to obtain the order sought would result in the frustration of the appeal, however, no jurisdiction to make the order should be implied. Reference: CCC R.S.C. 1985, c C-46, s 482, 683 [TAB 1] Criminal Appeal Rules, Rule 2, [TAB 2] Rules of Civil Procedure, Rule 63.02 [TAB 3] R. v Church of Scientology, (1986) 25CCC(3d) 150-151 (Ont. C.A.) [TAB 6] R. v Keating (1991) 66CCC(3d) 530 (N.S. C.A.) in chambers [TAB 9] 8. It is respectfully submitted that this is not an appropriate case for this Honourable Court to exercise its ancillary jurisdiction. The Applicant has not demonstrated that a suspension of any terms of the probation order is necessary to prevent the frustration of this appeal, which the Appellant submits is a "test case." (jct: Not on whether I can do something but on whether the Crown can do it.) It is submitted that the terms of the probation order imposed by Mr. Justice Wright are reasonable, flexible and certainly not onerous. The order permits the Applicant to apply to his probation officer for permission in writing to associate with a person or persons known to him to have a criminal record. The probation order imposed by the learned trial Judge also permits the applicant to enter any establishment licensed for the purpose of gambling with cards or dice for money. [It should be noted that under s. 201(2)(1) of the Criminal Code, it is an offence to be found in a common gaming or betting house without lawful excuse.] Reference: CCC R.S.C. 1985, c. C-46, s 201(2)(a) [TAB 1] 9. It is respectfully acknowledged that the Appellant will have performed part of his community service prior to the hearing of the appeal. However, the Appellant received 90 days from the date of the order before he was required to commence this work and is required to perform only a minimum of ten hours per month. It is submitted that if the appeal is brought on expeditiously, the Appellant will not have carried out a substantial portion of the community service order. The trial proceeded upon an agreed statement of facts. The Reasons for Sentence are prepared. In those circumstances, it cannot be said that the appeal will be frustrated if the community service term is not suspended. B. THE ABSENCE OF A NEED TO SUSPEND PAYMENT OF THE VICTIM FINE SURCHARGE 10. It is respectfully acknowledged that this Honourable Court has jurisdiction to stay the victim fine surcharge pending appeal, pursuant to section 683(6)(d) of the Criminal Code, where the Court is satisfied that it would be in the interests of justice to do so. However, it is submitted that an order suspending the payment of the victim fine surcharge is unnecessary in the circumstances of this case. The learned Trial Judge in imposing the surcharge gave the Applicant 24 months in which to pay. Reference: CCC R.S.C. 1985, c. C-46, s. 683(5)(d) [TAB 1] Reasons for Sentence, p. 133, l. 23 to l. 26 R. v. Metro News, supra [TAB 5] PART III: ADDITIONAL ISSUES 11. The Respondent advances no additional issues. PART IV: ORDER REQUESTED 12. It is respectfully requested that the application be dismissed. 13. In the alternative, if this Honourable Court determines that, in the circumstances of this case, it is appropriate pending appeal to grant a stay of the probation order or to suspend the operation of any of its conditions, and/or to suspend the payment of the victim fine surcharge, it is respectfully requested that concomitant relief should be granted to the Respondent in the form of an order expediting the appeal. The appeal should be heard by a certain date, failing which, the Applicant should be bound once again to comply with the terms of his sentence, unless he applies successfully for an extension of the stay. ALL OF WHICH IS RESPECTFULLY SUBMITTED Alexander Alvaro Counsel for the Respondent Dated at Toronto this 24th day of Aug. 1995. ********************************************************************** WHAT HAPPENED: The Court did not respond to the Crown's argument that though the Court of Appeal had jurisdiction to release from physical custody pending appeal, it did not have jurisdiction to release from probationary custody because it wasn't specifically stated in the Criminal Code. It seems that the Court of Appeal has the power to do anything it feels will further justice. I complained that restricting me to only one form of legal gambling activity, low stakes Poker with a rake-off in licensed casinos versus high stakes Poker with no rake-off in my home was an impediment to my right to earn a living. So, it all boils down to my specific question about my playing no-rake-off Poker in my home where Judge Wright re-stated: "I have addressed that issue in responding to submissions and the application that it might have even to a home if kept for the purpose of gain." (p127) "Defence urged that gain has never been interpreted as gain from gambling." (p123) "Crown advanced a novel approach to this type of prosecution. I agreed with that interpretation and Mr. Turmel was convicted." (p124) "Again, I am placing particular emphasis on the factors which mark this as a test case. I recognize that another court might well have come to a different conclusion and may yet come to a different conclusion. (p131) I was restricted to only gambling in licensed premises because Judge Judge Wright's new interpretation warns that my private formerly-legal poker chip winnings in my home under section (b) have now become illegal monetary gainings under section (a), something so novel there's a good chance another court may come to a different conclusion. I think the first court has just taken that first step. Justice Labrosse pointed out: "There's no difference between gambling in a licenced premise and gambling in your own house which he's now prevented from doing." The three learned justices of the Court of Appeal ruled that restricting me only to the legal games offered in licensed casinos outlawed "too broad" a range of other legal avenues of gaming and varied the condition so that I not be prevented from playing in my home like I've legally have for the last 21 years but that the condition simply prevent me from playing in any "illegal" gambling establishment. This will also permit me to participate in my Fifth Annual 1995 Canadian Open Holdem Poker Championship, another legal no- rake-off event which I had mentioned. As I am the leader of the federally-registered Abolitionist Party of Canada and need unhindered democratic access to the electorate, the Court also varied the condition "not to knowingly associate with anyone with a criminal record" to a condition "not to knowingly associate with anyone with a criminal record for gambling." Now we're just waiting for the transcripts to be finished. I'll then have two months to prepare my appeal book, the Crown will then have two months to prepare theirs and I'd hope this unusual test case might be settled before the end of the year. John "Robin Hood" Turmel P.S. Why the Ottawa Police called me Robin Hood is a whole other story. From elastic!jaywon.pci.on.ca!noc.tor.hookup.net!nic.wat.hookup.net!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Sep 24 07:03:50 1995 Xref: elastic can.general:9298 can.legal:1607 can.politics:8219 ont.general:8629 tor.general:8821 Newsgroups: can.legal,can.general,can.politics,alt.conspiracy,ont.general,tor.general,ncf.sigs.business.freedata Path: elastic!jaywon.pci.on.ca!noc.tor.hookup.net!nic.wat.hookup.net!hookup!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: Re: TURMEL: Ontario Court of Appeal Varies Probation Conditions Message-ID: Sender: bc726@freenet3.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Fri, 22 Sep 1995 21:10:23 GMT Turmel: Ontario Court of Appeal Varies Probation Conditions Lines: 70 On Friday Sep 8 1995 my application for an order staying my probation conditions pending my appeal against conviction in Police "Project Robin Hood" for keeping Canada's biggest common gaming house was heard before Justices Lacourciere, Labrosse and Austin of the Court of Appeal for Ontario. I had been sentenced to probation with the two objectionable conditions: 1) To only only gamble in licensed premises; 2) To not associate with anyone known to have a criminal record. 1) As a professional gambler who has always played legal games in my home and participated in legal tournaments, I appealed the prohibition of this overly-broad range of legal activities and applied for a stay so I could play until it could be argued. 2) As the leader of the registered Abolitionist Party of Canada, a party of and for paupers, the condition not to associate with people known to have criminal records impeded my participation in the electoral process. The Crown argued Parliament has not conferred any express power upon a court of appeal to stay a probation order, or to suspend the operation of any conditions in a probation order, pending an appeal. The Court has no jurisdiction to stay a probation order, or to suspend the operation of any of the conditions prescribed in it, pending appeal. The implication is that by conferring this express jurisdiction, Parliament did not intend to confer any jurisdiction on a court of appeal to stay a probation order pending appeal. A court of appeal does possess the ancillary jurisdiction to make an order necessary to prevent the frustration of an appeal which must be exercised by the full court. Unless the inability to obtain the order sought would result in the frustration of the appeal, however, no jurisdiction to make the order should be implied. Luckily, this was before a full court which chose to use its ancillary jurisdiction. After Justice Labrosse had pointed out: "There's no difference between gambling in a licenced premise and gambling in your own house which he's now prevented from doing:" JUDGMENT OF THE COURT: "We are all agreed that the two conditions of probation set out at p133 of the Provincial Division Judge's reasons for sentence are too broad in the circumstances of this admittedly unique case. The condition limiting the Appellant to gambling in licensed establishments will be deleted and replaced with the condition that he not participate in any illegal gambling. The condition that he not associated with anyone known to have a criminal record will be varied to non-association with persons know to have a criminal record for gambling. Other conditions of the probation order are affirmed." COUNSEL FOR APPELLANT: John Turmel in person COUNSEL FOR RESPONDENT: Alex Alvaro, Crown FROM ORDER OF WRIGHT J. MAY 16, 1994. I informed my probation officer on Sept. 19 of the decision which had not yet reached her. Since information on the Canadian Police Identification Computer (CPIC) still hasn't been amended, she advised me to inform the Nepean Police that I would be starting up games in my home and have the court's endorsement available to prevent any charges under the old condition barring me from such activity. This is important because my trial judge had specifically ruled that under his new interpretation of the law, my formerly-legal winnings at playing poker in my home would now be newly-illegal gainings. I'd expect it will be pretty tough for the Court of Appeal to uphold that ruling considering they specifically varied the condition Judge Wright had imposed to allow me to do just that. John "Robin Hood" Turmel From bc726@FreeNet.Carleton.CA Tue Feb 13 07:32:43 1996 Xref: elastic can.general:34349 can.legal:6409 can.politics:45899 ont.general:28086 sci.econ:5586 sci.engr:4074 Newsgroups: ont.general,can.general,can.politics,alt.conspiracy,sci.econ,can.legal,nz.politics,sci.engr,aus.politics,uk.politics Path: elastic!exorcist!lethe!geac!onramp.ca!grumpy.insinc.net!news.bconnex.net!primus.ac.net!imci4!newsfeed.internetmci.com!news.kei.com!nntp.coast.net!torn!nott!cunews!freenet.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Subject: TURMEL: Unique Legal Case Message-ID: Sender: bc726@freenet2.carleton.ca (John Turmel) Organization: The National Capital FreeNet, Ottawa, Ontario, Canada Date: Mon, 12 Feb 1996 06:15:32 GMT Lines: 1118 Appeal No. C21516 No. 93-18193 COURT OF APPEAL FOR ONTARIO Judicial District of Ottawa-Carleton Between: HER MAJESTY THE QUEEN Respondent -and- JOHN C. TURMEL Appellant APPELLANT'S FACTUM ------------------ PART I: STATEMENT OF CASE: 1.1 The Appellant is a professional gambler who was acquitted of keeping a common gaming house in 1989 and, despite no evidence of any change in the operations, was then convicted in 1994 without the first acquittal having been overturned by a re-interpretation of the word "gain" under subsection (a) to include "winnings" which are historically dealt with under subsection (b). 1.2 The judge sentenced the Appellant to 3 years probation with the condition not to gamble in any unlicensed establishment after ruling: @QUOTE = "If you're making a living by playing cards at home, then your home becomes a place which is kept" for gain. 1.3 The Ontario Court of Appeal, unaware that formerly lawful gambling winnings were now to be convicted under a new interpretation of the word "gain," varied that condition ruling: @QUOTE = "There's no difference gambling in a licensed premises and gambling in your own house which he's now prevented from doing." @QUOTE = "The condition limiting the Appellant to gambling in licensed establishments will be deleted and replaced with the condition that he not participate in any illegal gambling." 1.4 The grounds of the appeal are that the original judge and the Court of Appeal are historically correct and the second court was estopped from contradicting the first court on the same set of unchanged facts. PART II: SUMMARY OF THE FACTS: 2.1 I, the Appellant John Turmel, was for four years the Teaching Assistant of Canada's only Mathematics of Gambling course given at Carleton University after having received a degree in electrical engineering. I have been accredited as an expert witness in matters related to gambling by both the Ontario and Quebec provincial courts on numerous occasions. As a skilled Blackjack card-counter, I was barred from two casinos in Las Vegas. As a skilled Poker player, I average over 2 big bets per hour at the Hold'em Poker tables with no- rake-off. The more tables there are, the likelier is a high stakes game, often $50/$100, at which my professional winning rate of two $100 bets per hour makes picking up the tab for the whole party a negligible expense. 2.2 I have earned much of my income in the business of gambling as a well-known professional gambler who has kept card games of "No-rake- off" Poker and "2-man Both-Bank Blackjack in my home for over 21 years as well as hosting many legal gaming events including the Canadian Open Hold'em Poker Championship for the past 5 years. As long as I didn't violate one of the four (b) definitions in the subset of illegal ways of winning chips out of the games by taking a rake-off from pots, charging a fee to play, excluding anyone from being the banker or having some advantage others did not have and as long as we didn't violate the (a) definition by playing where someone's cash register was gaining money, I was never perturbed when the police came in to my private halls to check out my games and then depart, sometimes pronouncing the keeping of my uncommon gaming house operations legal with media present. 3.1 In 1988, Crown Attorney Curt Flanagan recommended that Ottawa Police charge me with keeping a common gaming house and keeping a common betting house under Section 201(1) for having hosted the card game of "2-man Both-Bank Blackjack" at the Bayshore Hotel and charge my opponents, including David Booth and Gene Lo, with being found-ins. 3.2 In the April 3, 1989 decision styled R. v Dave Booth, Ottawa Provincial Court Judge Fontana acquitted found-ins David Booth and Gene Lo after listing the evidence and ruling: @QUOTE = "- refreshments were available but there was no charge for them, @QUOTE = - there was no fee to enter the game, @QUOTE = - there was no percentage or rake-off, @QUOTE = - a player exercised his right to be dealer." @QUOTE = "Common gaming house is defined in five ways. On the evidence alleged by the Crown and accepting the testimony presented on behalf of the Crown by Mr. Turmel, the operation in this occasions clearly does not fall into the first four categories: a place kept for gain, or for playing games where the bank is held by one or more but not all players, there is a rake-off charged, there is a fee charged. Clearly, none of these four criteria apply. If the operation is to be caught, it must be caught with respect to subsection four." @QUOTE = "The opportunity to be the banker\dealer was available to all players who participated in the game.... "The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section." 3.3 The bookmaking charge of keeping a common betting house was withdrawn after Defence noted noted R. v. Pilon where the J. Hazin explained the difference between gaming and booking bets: @QUOTE = "If these parties are to play an active role in the event, there is gaming. On the contrary, if the event be independent of the will and actions of the parties, there is a bet." 3.4 Upon the Statement of 19 Agreed Facts drafted by the Crown and accepted by the Defendant and the decision of Judge Fontana that none of the five possible gaming house losses had been detected among the found-ins, Judge Lennox concurred there couldn't be any gaming house wins by Turmel if there weren't any gaming house losses by his opponents and my keeping of this unique uncommon gaming house was acquitted on April 8. Though the Crown did not appeal, I gave written consent for any extension of time should they wish to do so. 3.5 I continued hosting "No-rake-off Poker" and "2-man Both-Bank Blackjack" in my home and in private premises and picking up all the tab out of my professional winnings. My games were open to and inspected by the police many times over a two year investigation. Potential found-ins had been instructed that their defence was: @QUOTE = "I won, I lost, I played, I banked, no rake-off and no fee, @QUOTE = I bet, I called, I tipped with always chips, no GST." "I won, I lost" accepted that there was gambling going on. "I played, I banked" covered (b1) and (b4). "No rake-off and no fee" covered (b2) and (b3). "With always chips. No GST" covered indirect sales gain under (a). 4.1 In July 1993, without appealing against the Fontana and Lennox acquittals, Crown Attorney Curt Flanagan recommended that I again be charged by the Ottawa Police in a raid titled "Project Robin Hood" on my "no-rake-off Poker" and "2-man Both-Bank Blackjack" card games. This time, added to the common gaming house charge was not only the spurious common betting house charge under Section 201(1) which had been withdrawn in 1989 but two new bookmaking offences: "being in the business of betting" under section 202(1)(c) and "controlling monies from betting" under Section 202(1)(e). I stood mute at my plea. 4.2 Though there was no change in the operations of the games, there was a change in the information which the new court was going to hear. No found-ins were charged. Whereas in 1989 Judge Lennox had the benefit of Judge Fontana's decision reporting "no gaming house victims found here," in 1994 the Crown made sure I could not offer the new judge any similar ruling on the legality of the found-ins' losses. Only evidence of my winnings was to be considered and my judge was to have a monocular rather than Judge Lennox's binocular stereoscopic view. While the innocence my winnings was easily seen by Judge Fontana and Lennox when consideration of the victims' losses was included, that innocence was harder to see when only winnings were looked into. 4.3 On Oct. 3, 1993, David Booth was charged with keeping a "2-Man Both-Bank Blackjack" game and Gene Lo was once again charged as one of the found-ins. Mr. Lo appointed John Turmel as his legal agent to represent him on this summary conviction offense. 5.1 On Nov. 15, 1993, the special pleas of Autrefois Acquit, Issue Estoppel and Abuse of Process of John Turmel (formerly-acquitted keeper and currently-charged keeper), David Booth (formerly-acquitted found-in and currently-charged keeper) and Gene Lo (formerly-acquitted found-in and currently-charged found-in) were heard by Ottawa Provincial Court Judge Peter Wright. As the pleas were all based on the Lennox and Fontana decisions, the Crown had argued they should be heard together. 5.2 I argued that Judge Fontana's and Lennox's decisions which had dismissed all five definitions had to have been overturned before a brother judge could be contemplating a different conclusion on a set of facts where there was no fresh evidence of any change. I cited: R. v. Carriere (1951) 104 C.C.C. p75 Que K.B., R. v. Wright (1965) 45 C.R.38 R. v. Jewitt (1985) 2S.C.R. S.C.C. R. v. Boross (1984) 12 C.C.C. (3d) p480 Alta C.A. R. v. Grdic, (1985) 19 C.C.C. (3d) S.C.C. R. v. Keyowski (1988) 40 C.C.C. (3d) p481 R. v. Rourke (1978) 1 S.C.R. p1021 R. v. Young (1984) 40 C.R. (ed) p289 Connelly v Dir. Public Prosecutions, (1964) AC1254(H.L.) Deserted Wives Maintenance Act (1948) 1W.W.R.680 B.C.PolCt. Montreal v. Rothman Realty (1965) R.L.214, 441C.R.372 5.3 In particular, I noted that in Montreal v. Rothman Realty, an apartment building had been acquitted of being an illegal rooming house. When that apartment building was charged anew, the judge ruled that since there was no evidence of any change in the operations of the house, the different date of the second charge was not relevant and autrefois acquit applied to an unchanged house. 5.4 I noted that in R. v. Carriere, the distribution of a pamphlet at a different time and different place was judged to be protected by autrefois acquit though not the same time and place. 5.5 I further urged that the charges of keeping a common betting house, being in the business of betting and controlling monies from betting should be quashed because one does not book bets with cards. With cards, bets are registered with cash or chips. 5.6 Judge Wright permitted a statement: @QUOTE = Court: "Mr. Lo, do you have anything you would like to add?" @QUOTE = Lo: Yes. I was acquitted of the charge of playing Blackjack, or 21, in 1989 by Judge Fontana. I was playing with John Turmel. And when I was playing at Dave's place, it was the same set of rules, it was the same game that I had before. Being acquitted, I thought that what I was doing was right. And I wasn't breaking any law because the game house had changed. It was the same set of rules, the same set of circumstances. I can be the bank. I had the same advantages that the house has and I was charged again for the same offence. And this is why I am here today, to plead my case, that I shouldn't be charged again for the same thing that I was acquitted on. @QUOTE = Court: Mr. Booth? @QUOTE = Booth: No, I just feel that we offered the same thing as what Mr. Turmel offered before, so, we felt that it was a straight game and feel that it was okay. (page 67) 5.7 Crown Andre Marin argued my game could be re-examined because: @QUOTE = Crown: "The Crown is relying on the definition of common gaming house as found in section 197(a) of the Criminal Code. It was not decided by Judge Fontana and did not form part of his reason for decision." (page 75) @QUOTE = Court: "Could you refer to page 7 of Judge Fontana's decision? It would appear to me he makes reference to both (a) and (b) in his ruling." 5.8 Judge Wright declined jurisdiction in the cases of David Booth and Gene Lo. As I was representing Mr. Lo and still raising the pleas of autrefois acquit, issue estoppel and res judicata, the found-in charge was eventually withdrawn by the Crown. Mr. Booth, succumbing to his lawyer's fees and medical problems, eventually ended his ordeal by pleading guilty to playing what he had been previously acquitted of playing. 5.9 On Nov. 26, 1993, Judge Wright ruled (page 6): @QUOTE = "The Crown argues that for autrefois acquit to apply, the circumstances must be identical and that the matters before the Court involving Mr. Turmel have different dates, different locations, that essentially, these matters are completely different occurrences." @QUOTE = "Mr. Turmel cites and relies heavily upon the decision in Carriere, a decision of Mr. Justice Drew of the Quebec King's Bench, 104CCCpage 74, which indicates, in short, the charges brought in the first place against the accused and the present charge are substantially the same. Fundamentally, what the accused is charged with is having distributed a pamphlet. He was found not guilty the first time, and although he is prosecuted in different terms, it is the same act with which he is charged." @QUOTE = "The Court, in Carriere, evidently, therefore, had evidence to establish that it was the same pamphlet. Here it would appear that there are, indeed, different places and times. And although Mr. Turmel contends in his arguments that the actions, the process or the structure, as he describes it, are the same, there is simply no evidence to that effect before the Court other than argument and submission. I have concluded, in the absence of any evidence, the analogy is simply not applicable." @QUOTE = "In the case at hand, it would appear that the offences are not the same in respect of date, time, location and so forth. And there is simply no evidence with respect to the details or circumstances in which the offences are alleged, and, therefore, with the greatest of respect, the plea of autrefois does not succeed." @QUOTE = "Issue estoppel may lie in those situations where the defence is able to establish that the issue which has previously been decided is identical or very similar to the issue before the Court. @QUOTE = "It means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future law suit. The difficulty is that the Court has heard no details as to the nature of the allegations and, therefore' the issues in the charges before this Court, no evidence has been called with respect of this issue, as to the applications that were brought prior to the hearing of evidence." @QUOTE = "No affidavit materials were provided and there is no agreed statement of facts presented to this Court. I am therefore left in a position of having to decide the issues of res judicata and issue estoppel in a vacuum. The onus is upon the applicant, in this case, Mr. Turmel' to establish, as stipulated in the Wright decision by proper evidence that the same point was determined." @QUOTE = "The Crown contends that the facts are different, that there are different issues. Mr. Turmel very emphatically contends that the facts are the same, however the Court must decide these issues on the basis of evidence which is presented in the absence of evidence, I find that the application of Mr. Turmel, although, perhaps, premature, must be denied." @QUOTE = "It would further appear that the special plea would not be applicable in respect to the betting house charges, as these were withdrawn, apparently without any plea having been taken." 6.1 Before the Feb. 24, 1994 trial, the Crown withdrew all three of the bookmaking charges: keeping a common gaming house, being in the business of betting and controlling monies from betting. Judge Wright denied Defence Attorney Matt Sagle's request for costs to cover the needless preparation of defence to those spurious charges. 6.2 The Crown entered the Statement of Agreed Facts which contained almost word-for-word the same 19 admissions as in 1989. During the trial, the Crown also admitted that there were no transactions subject to the Goods and Services Tax (GST). 6.3 The Crown sought to present evidence of the gambling. Defence objected that the game details had been admitted in the Statement of Agreed Facts whose main purpose was to dispense with evidence of agreed facts and that more evidence on the games would be superfluous. Nevertheless, the Crown was permitted to enter the evidence about the admitted games. 6.4 The Crown was permitted to enter detailed forensic accounting evidence on the amount of the admitted gambling winnings and the amount of the tab even though Defence cited the R. v. James case: @QUOTE = "The question of what is keeping it for gain ought not be embarrassed by the amount." 6.5 The Crown argued that tab expenses house losses like rent and refreshments were proof of gain. Defence objected that picking up the tab was the ultimate proof of loss. Picking up the room rent was a rental loss against gambling winnings. Picking up the tab for food and drinks was a catering loss against gambling winnings. There was no reason to conclude those house losses were covered by illegal gains from keeping the house defined under (a) when they could have been covered by legal wins from keeping the game under (b). Defence again objected that the case should not be embarrassed by superfluous evidence on the amount but the Crown was allowed to present evidence on the amount. 6.6 The Crown spent the whole first day presenting evidence of the admitted gambling embarrassed by voluminous evidence of the irrelevant accounting and rested its case with no fresh evidence of any change in the operations. 7.1 With no evidence of vending gains and only evidence of gambling winnings and tab losses, the Defence moved for a directed verdict of acquittal. There was a history of acquittals under (a) if there were no sales and a history of convictions under (a) only if there were sales: R. v. Bampton (1932) 58 C.C.C. p289 R. v. Bertrand (1918) C.C.c. XXXI p2 R. v. Cherry and Long (1924) 42 C.C.C. p137 R. v. DiPietro (1986) 25 C.C.C. (3e) p100 (S.C.C.) R. v. Fong (1923) B.C.R. p238 (B.C.) R. v. Irwin (1982) 1 C.C.C. (3d) p212 (Ont.C.A.) R. v. James (1903) 7 C.C.C. p196 (Ont.C.A.) R. v. Karavasilis (1980) 54 C.C.C. (2d) p530 R. v. Kerim (1963) S.C.R. p125 (S.C.C.) R. v. Lemaire (1929) C.C.C. LI p137 R. v. Ley (1912) 20 C.C.C. p170 (S.C.A.) R. v. O'Meara (1915) 25 C.C.C. p16 (Ont.C.A.) R. v. Pare j(1987) 38 C.C.C. (3e) p97 (S.C.C.) R. v. Radinsky (1929) C.C.C. LII p131 R. v. Riley (1916) 26 C.C.C. p402 (B.C.C.A.) R. v. Sala (1907) C.C.C. XIII p198 R. v. Saunders (1900) C.C.C. III p495 R. v. Sullivan (1930) 53 C.C.C. p243 R. v. Tatti (1965) 4 C.C.C. p268 (Ont.C.A.) R. v. Wong (1922) 40 C.C.C. p311 (B.C.) R. v. Lefrancois (1981) 63 C.C.C. (2d) p380 (Que.C.A.) in particular: @QUOTE = "The notion of gain necessarily implies that the amount paid to the vendor must exceed the cost of the items sold." 7.2 The notion of winning necessarily does not imply an amount paid to a vendor. There are no vendors at the gaming tables. It necessarily implies a pot awarded to the winner. All the cases under (a) dealt with amounts paid, never amounts won. 7.3 The Defence pointed out that when subsection (a) states "keep for gain to which persons resort for the purpose of playing games," it is mentioning both the act of "gaining" and the act of "playing" in the very same sentence which suggests the legislators intended the distinction between the act of selling for gain and the act of playing for win. Defence pointed out the many clear historical distinctions between gaining under (a) and winning under (b): (a) versus (b) Word "gain" is used Word "play" is used Gain from the house Gain from the game Indirect from game Direct from game >From commerce From gambling By sales By skill At the stock room At the card table In currency In chips Registered at cash register Registered at chip tray With GST Without GST Due to presence of game Due to play in game Independent of game Dependent of game 7.4 The last two distinctions have to do with the words in section (a): "to which persons resort for the purpose of playing games." This indicates that keeping a place for gain to which persons do not resort for gambling is lawful. Such gain is legal before and after people resort thereto for the purpose of playing games and only becomes illegal when persons arrive to gamble. Subsection (a) gain has to be coming out of the house so that the presence of the gamblers increases that gain. 7.5 There is no case law to show that a professional card-player's lawful winnings from the game has ever been prosecuted as unlawful gain under subsection (a) as OPP constable Young admitted on page 107 of the Mar 20, 1995 transcript: @QUOTE = "The argument that was going to be made was gain from the game rather than from gain from the extras that were surrounding the game." @QUOTE = "As Turmel pointed out during the trial, there is no case law on that." 7.6 Instead, the Crown cited Black's Law Dictionary to show that gain should include winnings. Defence argued that the doctrine of strict construction of criminal statutes required the court to adopt the interpretation most favourable to the accused. Ignoring the historical limits set by case law to use the maximal number of definitions in a dictionary is the anti-thesis of strict construction of statutes. 7.7 Defence raised the Defence of Res Judicata arguing that the issue of whether gains include wins had been settled before between the two parties. I submitted that Judge Fontana's double ruling left no doubt that: 1) free refreshments meant "not kept for gain" and 2) skill in play was not contemplated by the section. 8.1 On March 18, 1994, having never pleaded, I again invoked the special plea of issue estoppel hoping Judge Wright had seen that there was no evidence of any change in the operations given the 1994 Statement of Agreed Facts he was reading was almost word for word identical to the 1989 Statement of Agreed Facts given to Judge Lennox. 8.2 I submitted R. v. Wilkes (1948) 77CLR page 341: @QUOTE = "Apart from the plea of "autrefois acquit," the principle of "res judicata" and the doctrine of "issue estoppel" apply in a criminal case where there are inconsistent verdicts or where it appears that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second trial of the same prisoner." 8.3 I submitted Connelly v Dir. Public Prosecutions, [1964]AC1254(H.L.) on page 1259: @QUOTE = "The authorities show that the courts have applied the doctrine to cases where a conviction on a second indictment would be inconsistent with acquittal on the first." @QUOTE = "As a general rule a judge should stay an indictment when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment or are part of a series of offences of the same or a similar character as the offences charged in the previous indictment." 8.4 I submitted R. v Grdic, 19CCC3d(SCC) on page 289: @QUOTE = "The Crown was not allowed to re-try except if there was fresh evidence." @QUOTE = "If to prove the allegation the Crown is merely tendering the same evidence as that tendered previously, then issue estoppel will survive the attack because the Crown's allegation, is in disguise, but a re-litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." Indeed, another judge is invited to reconsider the same evidence and conclude differently. This can only be done through the appeal process finding reversible error resulting in the ordering of a new trial before a different judge." 8.5 During the trial, Judge Wright had stated: @QUOTE = "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 gambling which are findings with respect to a lack of evidence. And there was no evidence on that point. Then, with respect, it would be my understanding that my brother judge who had not turned his mind to address the specific issue that we're hearing here today."(page 23) @QUOTE = "Was there evidence before the court, this sort of evidence that was before the court today?(page 23) 8.6 I submitted that Judges Fontana and Lennox had not turned their minds to the sort of evidence that was before Judge Wright because they had dispensed with hearing evidence of gambling after it had been admitted and evidence of its accounting as irrelevant. Therefore, all three judges had turned their minds to the same relevant evidence though Judge Wright was encumbered with a lot of superfluous details. 8.7 Judge Wright had also stated: @QUOTE = "Was the argument raised before Judge Fontana of gain? Or did the matter proceed under (b)? I'm aware that in his decision, there was no reference to what sections he found applicable but it would be significant whether the issue was (a)?"(page 18) @QUOTE = "The question I am concerned with is not so much the grammar but whether or not the issue of the (a) was raised, was an issue at trial."(page 22) @QUOTE = "For one of the special pleas to apply, the court has to be satisfied on evidence that there is the same issue between what are 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 faced?" @QUOTE = "Mr. Turmel, other than the reference in page 7, is there anything else in here which would indicate that he considered the kind of gains that we're talking about." (page 28) @QUOTE = "Other than the reference in page 7, 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." (page 30) 8.8 I submitted that the court had no jurisdiction to require more than that one oral reference to subsection (a). It was the jurisdiction of the Court of Appeal to look into what issues Judge Fontana's mind had turned to address under subsection (a) when his grammar indicated "not kept for gain." That was his ruling on the same evidence that is before this court and no re-interpretation of the same facts is permitted unless by order of the appellate court. The very discussion of the interpretation of Judge Fontana's grammar was improper. 8.9 On March 23, 1994, Judge Wright ruled on page 2: @QUOTE = "I can indicate that on a basic level, I have to agree with you that the facts are largely the same in relation to the game: the rules are as you described in an earlier date in court, the structure." @QUOTE = "In my view, for issue estoppel to apply, the Court must also be satisfied that the issue is the same or that the issue is substantially the same. Here, it would appear to me that the issue is a fairly narrow one and that issue is the meaning of "gain." It would appear that the issue of gain is not one which has been addressed, at least directly, in the previous cases to which references have been made. And therefore, I find the doctrine is not applicable here." 9.1 Believing that section (a) had been sufficiently addressed by Judge Fontana, I filed an application for the prerogative remedy of a writ of prohibition in the Ontario Court (General Division.) 9.2 On April 20, 1994, without informing the Appellant who lives in the same city and is equipped with a fax machine, the Crown filed short notice ex parte motion based on selected excerpts from the transcript. Judge Desmarais dismissed the application. 9.3 On March 13, 1995, the Ontario Court of Appeal dismissed the appeal ruling that the special pleas could be judged within this appeal. 10.1 On May 16, 1994, Judge Wright convicted me and ruled: @QUOTE = "Reference has been made to the decision of my brother judge, Judge Fontana, in R. v. Booth which decision I have read and agreed with. Were the Crown proceeding under (b), it follows that in accordance with the Booth decision, I would enter an acquittal based on the facts that are before me. The Crown proceeds today on a different definition and that is the definition found under (a)." @QUOTE = "There is no evidence of any indirect gain or income whatsoever, only from the business of gambling directly." @QUOTE = "If the charge against Mr. Turmel turns on the meaning of the word "gain", does gain include winnings?" @QUOTE = "I conclude that gambling income does come within the meaning of (a), and I must conclude that the charge is proven, and there will be a finding of guilty." 11. On Mar 20, 1994 with respect to my playing no-rake-off Poker in my home, Judge Wright stated: @QUOTE = "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 12.1 In his Mar 31, 1995 sentencing, Judge Wright stated: @QUOTE = "I attach a great significance to this as a test case" (p114) @QUOTE = "The amount, which I view as an aggravating factor, could well have been less if Mr. Turmel had been charged immediately." (p112) @QUOTE = "Why Mr. Turmel was permitted to carry on so many months with the knowledge of the authorities... The casino was "fine tuned" as to the legislation. I take this as an indication of police uncertainty as to how to proceed." @QUOTE = "I ask myself why a conclusion, which was not obvious to the police with all their resources, should have been obvious to the accused."(p122) @QUOTE = "There is no evidence of any change in the operations of Mr. Turmel." (p123) @QUOTE = "Defence urged that gain has never been interpreted as gain from gambling." (p123) @QUOTE = "Crown advanced a novel approach to this type of prosecution. I agreed with that interpretation and Mr. Turmel was convicted." (p124) @QUOTE = "Canadian courts have on occasion considered a test case as mitigating to sentence. (p124) @QUOTE = "In R. v. Stewart (no2) 35o.r. (2d) 185, Justice Krever: @QUOTE = "There was no reason for the accused to believe that his conduct could be characterized as criminal. The accused cooperated and it was possible to get to the heart of the matter and the legal issue involved directly because of the agreed statement of facts and as a result of that co-operation." Krever granted an absolute discharge." (p125) @QUOTE = "Because of the aspects of this case as a trial case, the steps which Mr. Turmel took clearly to avoid breaking the law, including receiving written legal opinions, which have been provided to the court, in advising the police in advance, in operating openly for so many months with the knowledge of the authorities, by being upfront in the way in which he conducted his defence, in particular, admitting the essential elements of the Crown's case and arguing the issue on a legal basis, in my view, all go to create a unique and unusual fact situation, one which I would expect would never arise again." (p130) @QUOTE = "Again, I am placing particular emphasis on the factors which mark this as a test case. I recognize that another court might well have come to a different conclusion and may yet come to a different conclusion." (p131) 13.1 I was sentenced to: @QUOTE = a) 3 years probation during which the Appellant was: @QUOTE = i) not to be found in any place where there is gambling unless in an establishment licensed for the purpose; @QUOTE = ii) not to associate with any person with a Criminal Record; @QUOTE = b) to perform 200 hours of accordion concerts as community service at 10 hours per month starting within 90 days of sentence; @QUOTE = c) to pay a victim-fine surcharge of $2,500 within 24 months. 13.2 Having allowed me access only to licensed casinos to pursue my profession, Judge Wright once again reminded me of the consequences of his new interpretation with respect to my playing Poker: @QUOTE = "I have addressed that issue and the application that it might have even to a home if kept for the purpose of gain."(page 156) 14.1 On Sept. 8, 1995, the Appellant appeared before Ontario Court of Appeal Justices Lacourciere, Labrosse and Austin seeking an order staying the sentence pending the appeal of this "test case." I submitted: - that the sentence which barred the Appellant, one of Canada's top professional gamblers, from playing lawful high-stakes no-rake-off Poker in his home and the homes of others and restricting him to low- stakes high-rake-off Poker in charity casinos was a violation of my right to earn a lawful living; - that the Appellant has been the host of the Canadian Open Hold'em Poker Championship for the past 5 years. Given that card-playing is my profession, the condition of the sentence which would not permit me to participate in my own legal tournament certainly restricts my chance to earn a living; - that having so restricted my ability to earn a living and noting how I had contributed much voluntary community service when I was pursuing my profession, 200 hours of involuntary service would again be an onerous burden; - that as the leader of the Abolitionist Party of Canada -- dubbed Robin Hood by police -- which is a party of paupers, some of whom have criminal records, and given that my conviction is for a quite victimless crime and a "unique never-again case," the Appellant's opportunity to participate in the Canadian political process was being severely hampered by the condition not to associate with people with criminal records. - that the $2,500 victim surcharge fine is an onerous burden given Judge Wright had found no evidence to dispute that I was left a pauper. (p131) - that as I fit Justice Krever's profile for a non-criminal intent case with subsequent co-operation, I also deserved an absolute discharge for this test case. 14.2 The Court of Appeal varied the condition of probation which had prevented me from gambling in my non-licensed home and my non-licensed tournaments ruling: PART III: ISSUES AT LAW 15. This is an appeal against that conviction and sentence on the grounds that: A) with no evidence of any change in the facts pursuant to the special pleas of autrefois acquit, issue estoppel and res judicata, Judge Wright may not reconsider the facts as this is the jurisdiction of only an appellate court: B) Judges Lennox and Fontana did rule on subsection (a) and Judge Wright may not contradict that ruling; C) Judge Wright's interpretation expanding of the scope of (a) is a misinterpretation unknown at law and treading on Judicial and Parliamentary prerogatives. 16.1 A) Between pages 36-45 of his May 16, 1994 reasons for conviction, Judge Wright stated: @QUOTE = "In relation to the argument of res judicata raised on the last day, I am satisfied that the defence cannot succeed. Whatever the determination with respect to the meaning of "kept for gain", I am satisfied that it is a distinct issue and question of law from the issues which were raised in the previous cases in R. v. Booth and R. v. Turmel, Ottawa. In the previous cases in R. v. Booth and R. v. Turmel, Ottawa. Further, in respect of R. v. Booth, the parties are not the same persons. Although from a reading of the transcript which was provided to me, Mr. Turmel was called in that case as the main Crown witness, he was not a litigant per se in the proceedings. 16.2 Though the pre-requisite that the parties be the same for the keeper's pleas of autrefois acquit, issue estoppel and res judicata may not be met in R . v. Booth, the found-in, they are met in R. v. Turmel, the keeper. The issue was confused by Judge Lennox adopting the reasons from R. v. Booth. Once Judge Fontana had ruled there had been no victims' gaming house losses, Judge Lennox was bound by both issue estoppel and arithmetic to rule there were no keeper's gaming house gains. 16.3 I had pointed out page 2 and 7 of the Lennox decision: @QUOTE = "I would have difficulty disagreeing with Judge Fontana, simply on the basis of comedy." @QUOTE = "In his decision, there was no evidence that there was, in fact, a gaming house being kept on the premises." @QUOTE = "In my view, it would be an error on my part at this point in time to consider delivering a contradictory verdict on what amounts to an argument at law, that being a complete absence of evidence." @QUOTE = "I would have difficulty because of that finding in rendering what would essentially be a contradictory verdict on what I understand to be, basically, the same facts." @QUOTE = "I would propose without further specific consideration, in view of the necessity of avoiding contradictory decisions on the same matter on the same evidence, to follow the ruling of Judge Fontana." 16.4 Judge Wright had originally dismissed the special plea of autrefois acquit and issue estoppel on the grounds he had no evidence that the facts presented to the other judges were the same. By the end of the case, he eventually concluded that: @QUOTE = "There was no evidence of any change in the operations of Mr. Turmel." (Mar 31, 1995 p123) 16.5 Even if Judge Fontana and Lennox had not ruled on subsection (a) in their acquittals, the same evidence of only income from the business of gambling itself should only be re-tendered to the Court of Appeal otherwise, as in the words of the Grdic case, "the Crown is merely tendering the same evidence as that tendered previously, in disguise, but a re-litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." 16.6 Judge Lennox was not simply bowing to the doctrine of issue estoppel without having seen the evidence and heard submissions himself. Judge Lennox ruled that the Appellant's business of gambling which was gaining out of the games did not violate subsection (a) on the basis of no indirect sales gain. Judge Wright says that that's not enough and has contradicted Judge Lennox by ruling that an issue other than just the traditional sales should have been considered, that treating legal winnings from the game should have been considered as gain from the house if made by the host, that the Appellant's business of gambling does violate the section. 16.7 Because Judge Wright also had the same Statement of Agreed Facts, once His Honour had determined that there was no evidence of any change, he was bound by issue estoppel and autrefois acquit to not reconsider the same Statement of Agreed Facts at all and possibly conclude differently which can only be done after having been ordered by the Court of Appeal. 17.1 B) Judge Wright stated: @QUOTE = "Were the Crown proceeding under (b), it follows that in accordance with the Booth decision, I would enter an acquittal based on the facts that are before me. @QUOTE = "The Crown proceeds today on a different definition and that is the definition found under (a)." 17.2 Yet, Judge Wright's original impression upon reading the ruling stated on page 95 of Nov. 15, 1993 transcript was : @QUOTE = "It would appear to me that he makes reference to both (a) and (b) in his ruling." 17.3 The Appellant submits that there is good reason for it to appear that Judge Fontana makes reference to both (a) and (b) in his ruling since it appears he actually ruled out subsection (a) not once but four times. Once gambling has been proven, the traditional judicial issues are for a judge to find out if: a) there were any indirect gains out of the house contravening (a), b) there were any direct wins out of the game contravening (b). 17.4 Parsing the passage on page 7 of Judge Fontana's ruling to determine whether he makes reference to both (a) and (b) or not, the evidence for definition section 197 was marshalled: | Definition Sub-sections | (a) (b1) (b2) (b3) (b4) |GAIN BANK RAKE FEE EDGE - "refreshments were available but |------------------------ there was no charge for them, | X - there was no fee to enter the game, | X - there was no percentage or rake-off, | X - a player exercised his right to be dealer."| X 17.5 The last three, fee, rake-off, right to deal, are evidence relating to the gain from the gambling. Charge for refreshments is evidence which does not relate to gain from the game. If charge for refreshments is not evidence of game offences under (b), it follows that charge for refreshments is evidence of the only other subsection left: (a). Assistant Defence Attorney Matt Sagle did point out: @QUOTE = "There is some indication that he considered what would normally be evidence on that charge and he specified that it doesn't apply in this case 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." 17.6 Then applying that evidence to all five definitions: | (a) (b1) (b2) (b3) (b4) "Common gaming house is defined in five ways.|GAIN BANK RAKE FEE EDGE The operation clearly does |------------------------ not fall into the first four categories: | X X X X a place kept for gain, | X or for playing games where the bank is | held by one or more but not all the players, | X there is a rake-off charged, | X there is a fee charged. | X Clearly, none of these four criteria apply. | X X X X If the operation is to be caught, it must | be caught with respect to subsection four. | ? The advantage that is derived to an | individual by reason of his own skill and in | playing the game in no way confers an unfair | advantage as contemplated by the section. | X X X X X |------------------------ | 4 4 4 4 1 17.7 After citing only evidence with respect to refreshment sales, subsection (a) is conclusively ruled out: - the first time when he said that clearly, the first four subsections do not apply, including subsection (a); - the second time when he used the actual words of the (a) subsection to say it was not "a place kept for gain;" - the third time when he repeated that clearly, the first four subsections, including (a), do not apply; - the fourth time when he said that skillful winnings are not contemplated by the whole section including (a). 17.8 Even the syntax used by Judge Fontana left no room for error. To say "Not guilty under the first four nor the fifth" is a quite comprehensive and unambiguous way to state that all five possibilities had properly been adjudicated. 17.9 Despite plenty of evidence of keeping the place in the Bayshore Hotel for the sole purpose of the business of gambling, Judges Lennox and Fontana ruled out keeping the place for gain four times on the basis of free refreshments because historically, the distinction was clear that (a) dealt with cash register gains and (b) dealt with gaming table gains. Their consideration of the refreshments issue means that the historic evidence of subsection (a) gain was ruled upon. 17.10 Once it is accepted that Judge Fontana did rule on subsection (a), it follows that new issue or not, as Judge Wright would have followed Fontana on (b) in accordance with the Booth decision, he not only should have also followed Fontana on (a) but he should not have been asking the question of whether to follow Judge Fontana in the first place pursuant to autrefois acquit, issue estoppel and res judicata. 18.1 C) Judge Wright, having concluded that there was no evidence of change in the operations, found: @QUOTE = "There is no evidence of any indirect gain or income whatsoever, only from the business of gambling directly." @QUOTE = "Were the Crown proceeding under s.(b), I would find that it has not been established beyond a reasonable doubt that there was a bank kept by one or more but not all the players or in which the chances of winning were not equally favourable to all, given the signs, rules and equal opportunity to be banker/dealer, or that the accused has been shown to fall under any of the other headings as set out under (b)." 18.2 Therefore, just like Judges Fontana and Lennox in 1989 who found it sufficient to acquit the games, I was found to have kept the place to which persons resorted for the purpose of playing games where: a) I did not gain from indirect commercial sales; b1) I did not exclude anyone from being the bank; b2) I did not take a rake-off from pots; b3) I did not charge a fee to play; b4) I did not have any unfair advantage. 19.1 Judge Wright noted: @QUOTE = "The Crown proceeds today on a different definition found under (a)." @QUOTE = "If the charge against Mr. Turmel turns on the meaning of the word "gain", does gain include winnings?" @QUOTE = "The defence argues that there has never been a case where a Canadian court has interpreted gain as winnings." @QUOTE = "There are no other cases on point." @QUOTE = "The Crown argues that the court apply a common sense interpretation of the word gain, the plain meaning of the word itself." @QUOTE = "Black's Law Dictionary defines "gain" as "profits; winnings; difference between receipts and expenditures." @QUOTE = "Why would Parliament make it an offence to keep a place for profit derived indirectly from the business of gambling but not attach to profits made directly from winnings?" @QUOTE = "Is there any reason why Parliament intended, as interpreted by our courts, to prohibit an indirect gain or profit through sales, et cetera, but allow a direct gain from gambling itself?" 19.2 The point is that Parliament DID: @QUOTE = "make it an offence to keep a place for profit derived indirectly from the business of gambling but not attach to profits made directly from winnings." 19.3 They probably chose to distinguish between winnings out of the game and gainings not out of the game because of the many Canadian voters who keep legal private games at home themselves. Prohibiting the indirect sales gain under (a) was probably to keep the legal gambling in the privacy of our homes. The business of being a professional Poker, Bridge, Gin, or Blackjack player has never been illegal as a home-based taxable profession. 19.4 The reason the Crown had no cases of winnings being successfully prosecuted as illegal gain is because all the previous courts have interpreted that that: @QUOTE = "Parliament intended, as interpreted by our courts, to prohibit an indirect gain or profit through sales, et cetera, but allow a direct gain from gambling itself." 19.5 Parliament split direct and indirect profits into two subsections and the courts have historically used (a) to determine illegal indirect gains not out of the games and (b) to determine the four illegal direct gains out of the games while the rest of the gains from gambling were found innocent as shown by a history of acquittals of gambling winnings including mine. So the Defence came armed with a history of case law demonstrating that subsection (a) dealt with indirect gainings and subsection (b) dealt with direct winnings out of the game and the Crown came armed with a dictionary to argue the historical distinction should be ignored. 20.1 Judge Wright added: @QUOTE = "It would appear to me that a common element in all of the cases to which the court has been referred in respect of (a), in part a requirement of commerciality, that is the phrase "kept for gain" being interpreted by the courts in the context of a business." @QUOTE = "An issue has been raised as to GST. There is a distinction to be made, but for the purpose of (a), in my view, the distinction is not with substance." 20.2 One common element of all of the cases in respect of profits under (a), the requirement of commerciality interpreted in the context of a business, is the Goods and Services Tax on sales transactions. Even the government makes the distinction between direct taxable professional winnings at games under (b) which do not bear GST and indirect taxable gainings at commercial sales under (a) which do. 21.1 Judge Wright added: @QUOTE = "What Parliament, I believe, was attempting to do by enacting (a) was to prohibit a place from being kept for the business of gambling, the commercial purpose of the activity." @QUOTE = "Mr. Turmel is not facing charges as a result of any gain or earnings which he may have acquired, but rather as a result of the allegation of keeping a place for that purpose." 21.2 Keeping the place for the purpose of winning has been established by every person ever charged with keeping a gaming house and later acquitted including myself. Judge Lennox ruled that I have the right to keep my place for my business of playing games where I win as long as none of the (b) or (a) definitions applied. And nowhere in the Criminal Code or in the case law is the business of gambling defined as one of the illegal purposes. If Parliament had wanted to prohibit a place being kept for the business of gambling, it would have legislated so. But gaming and bookmaking offences are divided into two gaming house and betting house categories. Certainly, when the Crown Attorney added the spurious charge of the business of betting, he would have also added the business of gaming had it been available. But the Criminal Code specifically forbids the business of betting and it specifically does not forbid the business of gaming. Many professional Bridge and Poker players are engaged in the pursuit of the business of gaming in their homes and other private premises and have only had to pay the taxes on their lawful winnings to convert them into lawful gains. 22.1 Judge Wright concluded: @QUOTE = "It would not appear to be a significant distinction whether the income is direct or indirect." 22.2 The fact the courts including Judges Fontana and Lennox treated whether the income was or indirect as the only significant distinction while Judge Wright saw it as not significant can be attributed to the fact that historically, the found-ins are charged with the keeper giving the court a more in-depth stereoscopic binocular view of the evidence. All the accounting evidence which Judge Wright took into his deliberations related to gambling activity which, after the winnings had been admitted, Judges Fontana and Lennox had dispensed with as superfluous pursuant to R. v. James: @QUOTE = "The question of what is keeping it for gain ought not be embarrassed by the amount." 22.3 Nowhere in the Criminal Code does it say that evidence of winning a lot of money is more relevant than evidence of winning a little. Nowhere does it say that tracing financial flows is relevant at all. "How much the keeper made?" and "Where did the keeper bank it?" has absolutely no bearing on whether a found-in was a victim of a gaming house. Judge Fontana did not embarrassed his analysis by the question of the amount due to his clearer two-angle perspective while Judge Wright was encumbered by voluminous accounting evidence due to his monocular perspective of only the keeper's point of view. Just like two equations are necessary to algebraically solve for two unknowns, Judge Fontana, Lennox and most other judges dealing with both keepers and found-ins had two angles to help them distinguish between (a) and (b). Having only one equation to solve for two unknowns, Judge Wright's one angle was not sufficient to see the clear significant distinction between the two subsections. 23.1 Judge Wright had stated: @QUOTE = "I conclude that gambling income does come within the meaning of (a), and I must conclude that the charge is proven, and there will be a finding of guilty." 23.2 Judge Wright repeatedly called this expansion of the definition (a) to include winnings a "test case," a "novel interpretation," a "trial case" and noted its major consequence: @QUOTE = "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 24.1 Even though Judge Wright noted Parliament's intent to have the courts make the distinction between indirect gains and direct winnings out of the game, he decided to use a less-than-strict construction of the statute by relying on the dictionary rather than the case law to not make that significant distinction. It is the court's duty to assume strictest limits which means stretching the law to acquit but not to convict. If giving the benefit of the doubt causes the accused to escape punishment, it's up to Parliament to expand the law. Citing Black's Law Dictionary as authority to forsake a history of case law which distinguishes between direct and indirect gain is the anti- thesis of the doctrine of strict construction. 24.2 It's understandable that Judge Wright may not empathize with a card-player's point of view after he admitted: @QUOTE = "I've never been in a casino." (Mar. 20, 1995 page 164) 24.3 But having heard the second point of view once during the autrefois acquit special plea of found-in Gene Lo, how would Judge Wright now explain his conviction under the new interpretation? Before Judge Wright's novel interpretation, Gene Lo could go to Dave Booth's home for a card game and allay any fears about being charged as found- in a gaming house by answering Judge Fontana's five questions: @QUOTE = Does David Booth sell me anything at a gain? @QUOTE = Does Dave take a rake-off out of my pots? @QUOTE = Does Dave charge me a fee to play? @QUOTE = Does Dave exclude me from being the bank? @QUOTE = Does Dave have any edge I don't have? 24.4 While Judge Fontana had said that the five definitions could be checked in five ways, Judge Wright says those five definitions must now be checked in six ways. With this expanded interpretation, Gene Lo has to answer a sixth question: @QUOTE = Does Dave win? 24.5 If he's a gainer at the games, it's a gaming house. Once again, it should be noted that the following questions are superfluous to whether a game is a gaming house: @QUOTE = "How much did Dave win?" @QUOTE = "How much were Dave's expenses?" 25.1 Judge Wright may not realize the ramifications of his expanding the law to a sixth definition. Never before has income from successful card-playing been reason to raid gamblers in their homes. Not just Poker players make income playing cards at home. This ruling affects many card-players who win at Bridge, Poker, Gin, Cribbage, Euchre, Blackjack and any other formerly legal card-games of skill. Since regularity is a great part in keeping a successful Poker game going, it stands to reason that games hosted by losers tend to break up sooner and are held less often than games hosted by winners. Most of the successful Poker and Bridge games today are operated by winning players which puts them in my present predicament. 25.2 This expanding the criminal net to encompass a greater number of activities is a Parliamentary prerogative. Consider all the people who could now be charged with being found-ins at games they've been playing at for years when it's determined that the host was keeping the game because the host was a gainer at the games. Friends who have played poker with me in my home for decades now shun my games having been told that they could now be charged as found-ins because I'm a winner. 25.3 Judge Wright may not think he's depriving us of much by outlawing Poker in our own homes since the Ontario government had newly licensed Poker games but we will now have to pay a rake-off of up to $10 per pot whereas we used to be able to play for free at home! If the Crown wants playing cards at home to now be illegal, they should approach politicians and not one judge. It should be up to the politicians to enact as crime the new interpretation of "making of a living by playing cards at home," not one judge. 25.4 Novel interpretations of such large deviation from the traditional interpretation which could affect a large enough segment of the citizenry should be up to an elected assembly. 26.1 Even the Court of Appeal ignored Judge Wright's historic new interpretation when it varied the condition of my probation so that I could make my living by playing cards at home after Justice Labrosse had ruled: @QUOTE = "There's no difference gambling in a licensed premises and gambling in your own house which he's now prevented from doing." @QUOTE = "The condition limiting the Appellant to gambling in licensed establishments will be deleted and replace with the condition that he not participate in any illegal gambling." 26.2 The Appellant submits that the Court of Appeal would not have deleted the restriction on my making my living playing Poker in my home and private tournaments if it known at law to be illegal. The Appellant doubts the Court of Appeal would have even considered whether I was going to win or not was a relevant to the issue of whether there was a gaming house going on. 26.3 The Court will have to reverse that variation of my probation if it upholds Judge Wright's new interpretation under which: @QUOTE = "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 27. The Appellant submits that this double prosecution was a violation of my rights under Sections 11(h), 2, 6, 7, 8, 9, 11a, 11d, 12, and 15 of the Charter of Rights and Freedoms and an abuse of the process of the court. PART IV ORDER SOUGHT: 28. a) Grant the pleas of autrefois acquit and issue estoppel and res judicata and abuse of process, or in the alternative; b) Set aside the conviction and register an acquittal, or; c) Vary the sentence to time served with an absolute discharge. Dated at Ottawa on Monday Feb. 12, 1996. For the Appellant: John C. Turmel, B. Eng., New Address and Phone: 111-1505 Baseline Rd., Ottawa, ON, K2C 3L4, Tel/Fax: 613-723-2739 Email: bc726@freenet.carleton.ca For the Respondent: Mr. J.A. Ramsay, Counsel for the Crown, 10th floor - 720 Bay St., Toronto, ON, M5G 2K1, Tel/Fax: 416-326-4600/56. -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada, 2918 Baseline Rd., Nepean, ON, K2H 7B7, Canada,Tel/Fax: 613-820-8656 All TURMEL topics cross-posted to newsgroup: can.politics From elastic!lethe!geac!reptiles.org!hookup!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Jul 28 09:57:32 1996 Xref: elastic can.general:52256 can.legal:9371 can.politics:80882 Path: elastic!lethe!geac!reptiles.org!hookup!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: can.politics,can.general,can.legal,ott.general,carleton.general,rec.gambling.poker,alt.gambling Subject: TURMEL: Another gaming house trial going on Date: 24 Jul 1996 09:16:52 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 248 Sender: bc726@freenet6.carleton.ca (John Turmel) Message-ID: <4t4pm4$n0t@freenet-news.carleton.ca> NNTP-Posting-Host: freenet6.carleton.ca TURMEL: Another gaming house trial going on Recap: In 1989, I was of acquitted of keeping a common gaming house after a judge in the trial of those accused of being found in my game had ruled that they had not parted with any money in any of the five illegal ways and my judge had to rule that I therefore hadn't come into any money in any of the five illegal ways. In 1993, when I was charged once again but the Crown did not lay any found-in charges to prevent another judge looking into the clear- cut legality of the losings. I was I was convicted contradicting my first acquittal. When another Turmel-style gaming house was charged in 1993, I was appointed agent for 9 found-ins since summary conviction offences don't require lawyers. After several pre-trial hearings, the Crown gave up and withdrew the charges against all found-ins. So the opportunity to once again prove that Turmel-style gaming house found- in losses were not illegal. Last year, another Turmel-style Blackjack game was charged in Hull. One of the players charged as found-in, Tasso Paliovarkas, was a player who had been acquitted in the 1989 Bayshore raid as well as one of the keepers, my brother Ray Turmel, who had also been acquitted in the Bayshore raid. I had prepared motions to challenge the charge on the grounds that Tasso had been formerly acquitted, "autrefois acquit" and another for particulars of which of the five sections the Crown was relying on. On July 4, 1996, Tasso let his lawyer go and appointed me his agent but Judge Chevalier wasn't sure that I was allowed to represent Tasso and asked me for more proof. I pointed out that "Section 800(2)" state: "A person may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally." Judge Chevalier checked Section 800(2) and then asked if it was permissible for an agent to appear in court and question witnesses. I argued that I had in Ontario. He asked if it got to trial, if I had questioned witnesses? I had to admit that it had been won before trial. He booked a hearing for Friday June 7 and told me to bring my authorization to question witnesses. He told me to call the Quebec Bar and find out. The judge warned me I could be charged if it wasn't allowed. I hadn't yet found Section 802(2) which said: "The prosecutor or defendant may examine or cross-examine witnesses personally or by counsel or agent." On June 7, 1996, I could only argue that when section 800 said that the Defendant could appear in person or by agent, it must have meant that the agent could act in the capacity of the defendant and question witnesses. I was still not aware that Section 802 specifically mentioned that the agent could question witnesses. Unfortunately, the judge ruled that though I could be his agent, I could not address the court nor could I advise Tasso during his defence. "No ventriloquists," he said. Then he made Tasso try to argue the special plea of autrefois acquit and dismissed it. Then he made Tasso try to argue the the motion for particulars and despite a decision of Superior Court Judge Frenette stating that it would be fair for the Crown to specify which of the 5 sections were being used, he put off his decision to July 2. On July 1, 1996, going over the Criminal Code, I come across Section 802 which specifically stated that an agent can examine and cross-examine witnesses! It now seemed a cinch that the judge's first decision on my agency was wrong. I prepared a new Notice of Motion and Affidavit pointing out this new cinch section 802(2): "The prosecutor or defendant may examine or cross-examine witnesses personally or by counsel or agent." On July 2, 1996, Judge Chevalier dismissed the motion for particulars even though Judge Frenette had said it wasn't fair not to provide particulars. Tasso asked if he could bring Judge Chevalier's attention to this new Section 802(2). Chevalier, thinking we were bringing up Section 800(2) again said it had already been decided and wouldn't be discussed again. As Tasso was leaving, I told him to go up and ask if he could file his motion for Section 802(2) with the court. Before he would take it, the judge asked him what it was about. When Tasso couldn't explain, the judge said "I'm not going to accept to read something from Mr. Turmel that you don't even know about." So the judge missed the chance to see that I had mentioned both section 800 and section 802 and he might have seen that the Criminal Code specifically permitted the agent to examine after he'd ruled that the agent could not. Now the only way to enforce section 802 was to go for a Superior court order of Certiorari to force the court to obey section 802 of the Criminal Code. On Tuesday July 23, 1993, our motion for my agency was heard by Quebec Superior Court Judge Jean Dagenais. # ------------------------------------ # NOTICE OF APPLICATION FOR CERTIORARI # ------------------------------------ # # TAKE NOTICE THAT on July 23, 1996 at 10:00a.m. at the #Courthouse in Hull will be heard the motion for an Order of Certiorari #permitting me to make full answer and defence through John Turmel as #agent in my stead pursuant to Sections 800(2), 802(1) and 802(2) of #the Criminal Code. # The grounds of the Application are that the failure of Judge #Chevalier to obey Section 800(2) and Section 802(2) of the Criminal #Code is sufficient to shock judicial conscience as: # 1) an excess of jurisdiction; # 2) an error of law on the face of the record; # 3) a breach of the rules of natural justice in that the defendant #is being denied: # a) the right to be represented by agency of his choice; # b) the right to plead his position; # c) the right to make the best representation; # d) the right to best cross-examine witnesses; # e) the right to procedural justice and fairness. # # ------------------------------------ # PALIOVARKAS AFFIDAVIT FOR CERTIORARI # ------------------------------------ # I, Tasso Paliovarkas, residing at 2-88 Glebe Ave., Ottawa, #Ontario make oath and say as follows: # # 1. On Feb. 23, 1988, I, Gene Lo and Dave Booth were charged with #being found-in a gaming house for playing Turmel-style Blackjack at #the Bayshore Hotel in Ottawa with John and Ray Turmel or one of their #agents. # # 2. On April 3, 1989, after evidence that Turmel had given us a #fair game which resulted in none of the five unlawful gains other than #legal winnings for Mr. Turmel, Ottawa Ontario Provincial Court Judge #Fontana acquitted us after ruling Turmel-style Blackjack rules did not #violate any of the five definitions of gaming house or a betting #house. # # 3. On Oct 21, 1993 Gene Lo was charged with being found-in a #gaming house kept by Dave Booth. Gene Lo and 8 other found-ins #appointed John Turmel as their legal agent. After several pre-trial #hearings, the Crown withdrew the charges. # # 4. On Mar 10, 1995, I was charged with being found-in a gaming #house kept by Ray Turmel. On July 4, 1996, I appointed John Turmel as #my legal agent too. # # 5. Section 800(2) of the Criminal Code states: # "A person may appear personally or by counsel or agent, but the #summary conviction court may require the defendant to appear #personally." # # 6. Section 802(1) of the Criminal Code states: # "The Defendant is entitled to make his full answer and defence." # # 7. Section 802(2) of the Criminal Code states: # "The prosecutor or defendant may examine or cross-examine #witnesses personally or by counsel or agent." # # 8. On June 7, 1996, Judge Chevalier ruled that my agent would not #be permitted to examine and cross-examine witnesses; not be allowed to #address the court and not be allowed to advise me during the conduct #of my defence. # # 9. As my friend, Gene Lo, was permitted to successfully make his #full answer and defence through John Turmel, this Affidavit is made in #support of an Order of Certiorari permitting me to similarly make full #answer and defence through John Turmel as agent in my stead pursuant #to Sections 800(2), 802(1) and 802(2) of the Criminal Code. # The case was not on the list but I was told by a clerk in the registrar's office that it had just been sent up. It was obvious that the judge hadn't read it yet so he asked Tasso what it was about. Tasso spoke very well and said that his affidavit explained why he wanted me as his agent to speak and question witnesses for him. The Crown argued that Judge Chevalier had already ruled on section 800 and it was obvious that he hadn't noted that we were now arguing section 802, not section 800 again. Could it be that the Crown didn't even read it yet? I approached the Court and mentioned that it was not section 800 which we were relying on but on section 802. Judge Dagenais immediately checked it out and asked the Crown what they were relying on to deny Tasso my agency. The Crown argued that the Quebec Lawyers Association said that only lawyers could represent people. Judge Dagenais asked him: "What if he's got a right to have Mr. Turmel according to the Criminal Code?" Then the Crown tried to argue that I had a conflict of interest because it was my brother who had been charged with keeping the game of which I had been the designer of the rules and I had a vested interest in proving my gaming structure was legal through Tasso's case. I kept thinking to myself: "So what?" Judge Dagenais asked him if I was a defendant in the case too. "No, it's his brother." The judge asked: "Is he going to be a witness?" The Crown said "yes" as I shook my head. There was no indication of who would be our witnesses because I was hoping to win this without having to present a defence though it is likely I would have givne a statement as Tasso's expert witness. But I've worn two hats before, defence and witness. Judge Dagenais asked if Tasso had any case law to back up section 802. As he didn't know, I approached and once again mentioned that my own agency in Ontario was our only case law. My approaching was kind of scary because I'd had less than friendly dealings with Judge Dagenais in another case and I was worried he might slap me down. But he seemed to appreciate my short points of clarification and was courteous throughout. He gave the Crown 2 days to come up with some Quebec case law to show that section 802 had been found not to apply in Quebec and then he'd hand down his decision. As I doubt the Crown is going to find any judge anywhere on the record saying that section 802 doesn't apply in Quebec, there's a very good indication that I will be allowed to take over and redo Tasso's defence. One final interesting note is that Judge Chevalier forgot to get Tasso's plea after he dismissed the special plea of autrefois acquit. Tasso hasn't had the chance to plead guilty and get it all over with as the Judge simply assumed that it was going to be defended. It would have been Tasso's chance to stand mute but either way, he has not yet pleaded and I can once again raise the issue of Autrefois Acquit and go for particulars because it was evident that the last presentations by Tasso were not the best defence pursuant to Section 802(1) that "The Defendant is entitled to make his full answer and defence." Since Tasso argued I could do a fuller job and he did not get to present that full defence, he has the right to try for that full defence once again. And that will be when the real war begins with those two motions once again with plenty of time to appeal and appeal before Tasso's December trial. And you'd be surprised how high you can get when you work fast enough to file your appeal the day after the decision. Appeals from lower court can be filed in Superior Court and heard within 2 weeks. Appeal can be filed in Quebec Appellate court and heard within 4 months and appeal filed in the Supreme Court of Canada before Tasso's December hearing. I've done minimal-time appeals to the top before and it'll be interesting to see if I can do one again. Of course, if Justice Dagenais rules later this week that I can't represent Tasso, I'll be filing in the Court of Appeal next week which would make me take even money on getting into the Supreme Court of Canada before Tasso's December trial! -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 11:38:43 1996 Xref: elastic can.general:59284 can.legal:10728 can.politics:92267 Path: elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Robin Hood Gaming House Supreme Court Bound Date: 18 Sep 1996 10:59:05 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 180 Sender: bc726@freenet3.carleton.ca (John Turmel) Message-ID: <51oklp$l0t@freenet-news.carleton.ca> NNTP-Posting-Host: freenet3.carleton.ca TURMEL: Robin Hood Gaming House Supreme Court Bound Several people have written requesting the information posted over the summer as the case was progressing up to the Court of Appeal judgment. Since it is going to the Supreme Court of Canada, for them and students back from summer holidays, I am going to repost that information in the following topics from the Ontario Court of Appeal (OCA): TURMEL: Repost: Robin Hood Gaming House OCA Defence Factum TURMEL: Repost: Robin Hood Gaming House OCA Crown Factum TURMEL: Repost: Robin Hood Gaming House OCA Crown Factum Analysis TURMEL: Repost: Robin Hood Gaming House OCA Transcript TURMEL: Repost: Robin Hood Gaming House OCA Transcript Analysis TURMEL: Repost: Robin Hood Gaming House OCA Judgment TURMEL: Supreme Court of Canada Act and Rules This information will bring you completely up to date on the facts of this unusual gaming house case as I prepare my Application for Leave to Appeal to the Supreme Court of Canada before Nov. 1, 1996. Within a month, as a draft preparation for the Supreme Court of Canada Factum, I will post: TURMEL: Rohin Hood Gaming House Appeal Judgment Analysis Future posts will include the documents for the Supreme Court of Canada (SCC): TURMEL: Robin Hood Gaming House SCC Defence Factum TURMEL: Robin Hood Gaming House SCC Crown Factum TURMEL: Robin Hood Gaming House SCC Crown Factum Analysis TURMEL: Robin Hood Gaming House SCC Transcript TURMEL: Robin Hood Gaming House SCC Transcript Analysis TURMEL: Robin Hood Gaming House SCC Judgment TURMEL: Robin Hood Gaming House SCC Judgment Analysis Right now, there's little you're lacking to understand the many interesting issues in this case. I do have the trial transcripts on disk and could post them next month. It was only a two-day trial and is a couple of hundred pages. Then, once my final product has been submitted to the Supreme Court and after I transcribe and post the Crown's response, we could organize a vote from the Cyber-space Court of Public Opinion to second guess the Court in advance and find out how many readers would have voted to grant or dismiss the appeal themselves? Right now, I propose that those interested in this as a game with argumentative moves should put themselves in my place and build their own case to the Supreme court of Canada. Note that the last post before I depart for a month''s preparation are the Supreme Court of Canada Act and Rules which I will have to follow to build my case. Using those rules as a blue-print, try your hand at building one yourself. Believe me, if you learn how construct a motion to the Top Court, all the other motions at the bottom levels are very similar! They're pretty straight-forward rules and shouldn't be too hard to follow. All you have to do is marshal the facts and I'd suggest sticking with most facts in my Factum because the Crown raised no objections. Then, going over the the Judgment of the Ontario Court of Appeal, you list your Points of Objection making sure to note those Defence arguments which were not dealt with, those which were misunderstood, those which were just plain wrong. I like leading off with: "The learned judged erred in failing to note....." "The learned judged erred in concluding....." Then you go into the factums and transcripts and cut out the arguments that back up the objections you've raised one by one. When I get back, I'll announce a date to post my: TURMEL: Rohin Hood Gaming House Appeal Judgment Analysis Which will include my first draft of the: TURMEL: Robin Hood Gaming House SCC Defence Factum Anyone else who wants to have their case checked to see if it would have passed the Registrar's inspection can post it too. I don't expect many to participate in this exercise but if you think of marshaling your paragraphs of arguments like you marshall your cards in a gin game, it's really not that hard. We'll proof each one but best of all, you may raise arguments I didn't see, you may say arguments in a better or shorter way, you may contribute in many ways. If you think you see an argument the Supreme Court would have trouble answering, get it out. Find a point I missed and I'll even cite your name to that argument hoping the court asks what all the names are in the notes and I can tell them that the arguments were marshaled from all around the world and the whole world is watching for the results. A little unorthodox pressure, wouldn't you say? I'd especially any shorter smoother ways to say a sentence or paragraph or series of paragraphs. Space is limited and there's a lot to say. This kind of information should be of value to all gamblers under Canadian jurisdiction. You never know when you yourself might need to use this kind of guerrilla legal knowledge for the real punishment in gaming house raids is never the small fine but always the criminal record and the lawyer's fees to avoid that record. The best example is the game I was running in 1993 in Toronto casino with 8 Blackjack tables and 3 Poker tables. Because of my former acquittal, they didn't raid me. They told me to get out of town. When was the last time you heard the sheriff telling the criminal to keep his loot and get out of town? If I didn't, they would raid, acquittal or not. I took my last week's $100,000 profit and closed down. Another fellow who had just that very week-end opened a similar but flawed copy of my game did not close down and two weeks later took the pie I had ducked. After $23,000 in legal fees for 3 days of professional defence with 7 more days to go, he gave up, changed his plea to guilty and was fined $25,000! So, the real punishment for getting busted for gambling in Canada is paying a lawyer unless you know how to do-it-yourself. The hundreds of hours I have spent in preparation of numerous motions and trials would have cost many tens of thousands of dollars. Of course, I've had phenomenal experience in hundreds of court motions but I found it to be easy from the start. I made a lot of mistakes but I usually found that that judges often ignored technical flaws if it was an interesting argument. And mine were usually David vs Goliath cases where many judges bent over backwards to give my complaints a hearing for just that reason. The major point is that do-it-yourself turns the tables on the Crown in attrition tactics. Now, the Crown is spending money on the case while you are not and often, like in the case of my Ontario found-ins, when the Crown was faced with another barrage of motions after I had been appointed agent for some gaming house found-ins, the Crown withdrew or stayed the charges rather than get into a costly fight over a $50 fine. If the Crown does use attrition tactics, a 10 day pre-trial hearing, then it becomes impossible for most to defend unless it's in person. That's why it's so important to be able to defend yourself and that's why I've never ever again paid a lawyer after going broke myself after my first bust in 1977. TO LURKERS: Many lurkers are only lurkers because they're worried about their spelling and the rude comments which often are induced from nasty people. Now, with spell checkers, spelling isn't usually a problem but a lot of people have forgotten many of their grammar rules. I think it is the height of non-democracy to embarrass someone out of presenting their opinion and do not tolerate it. If people would ignore spelling errors in public, more lurkers could be lured into offering their opinions. You don't need impeccable vocabulary to have a well-tuned brain. If you see a move that I haven't, I'd ask you to speak up. I myself will simply correct any such errors before I quote anyone. They look good from then on and learn from the experience. I personally feel wounded every time I see someone snidely correct a spelling error in public. It's losing another lurker who won't join in conversation anymore. There is a great value if I should pull this off. It would introduce an era of "No-rake-off" poker casinos to the world. Ask anyone what they liked best about Casino Turmel and it's always that there was no rake-off. Some people have mentioned the erosion of gamblers' rights in Canada with the Turmel ruling that lawful winnings can now be prosecuted as professional gains. I may be the first prosecuted under this new interpretation but I'm sure I won't be the last. So I'm off the Atlantic City for a few weeks of Poker and some time to polish off the manuscript of the Turmel Holdem Poker Point Count System. I usually start at the $10/$20 game and as my bankroll doubles, I move up. I've always had to go home before I made it into the $50/$100 game though. So if you're in A.C., you can usually spot me at the Taj or the Trop in the 3 or the 8 seat with a chair full of paperwork beside me so stop and say hi. You might even decide to see how many minutes it takes for you to learn my system with the best tutoring possible. -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 11:57:35 1996 Xref: elastic can.general:59286 can.legal:10730 can.politics:92269 Path: elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Robin Hood Gaming House Crown Factum Date: 18 Sep 1996 11:29:40 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 322 Sender: bc726@freenet3.carleton.ca (John Turmel) Message-ID: <51omf4$lkb@freenet-news.carleton.ca> NNTP-Posting-Host: freenet3.carleton.ca Appeal No. C18691 Gen. Div. No. 9570 COURT OF APPEAL FOR ONTARIO Between: HER MAJESTY THE QUEEN Respondent -and- JOHN C. TURMEL Appellant RESPONDENT'S FACTUM PART I: OVERVIEW OF RESPONDENT'S POSITION 1. The Respondent respectfully submits that the doctrines of res judicata or issue estoppel do not apply in this case. The earlier decisions by the Provincial Division relied on by the Appellant do not cover the interpretation of s. 197(a). Even if the decisions were applicable, their conclusions on matters of statutory interpretation are not binding either on other provincial judges or on the Court of Appeal. 2. With respect to the merits of the appeal and the reading the Appellant gives to s.197(a), it is submitted that Judge Wright's interpretation -- that phrase "kept for gain" encompasses gains drawn directly from gambling -- is the only reasonable one. This is particularly true given the size of the revenues drawn from the casinos which were run as a business enterprise by the Appellant. 3. The Respondent also submits that the suspended sentence the Appellant received was generous in the circumstances and should not be perturbed. While the Appellant was very open about the offence he was committing, he nevertheless broke the law and has a record for similar gaming crimes. RESPONDENTS STATEMENT OF FACTS 4. The Respondent substantially agrees with the Appellant's facts but draws this Honorable Court's attention to the following additional facts: A. Nature and extent of the business 5. During the perior covered in the information, the Appellant maintained gaming houses at two Ottawa locations, first on Baxter Rd., and then on St. Laurent Blve. Both were styled by the Appellant as "Casino Turmel." 6. The scale of the gambling conducted at these locations was such that it necessitated the participation of employees to act as dealers, cashiers and runners. At the St. Laurent operation, which the undercover officer who testified described as "a full fledged casino," 18 to 20 uniformed employees were observed at work, serving an estimated 75 to 100 customers. At the Baxter location, the officer saw seven Blackjack tables, five of which were observed in operation at one time. The Appellant himself claimed to have 100 employees and monthly wages costs of $175,000 in January of 1993. 7. Additional expenditures were made on advertising in print and by mail; on free bus transportation of patrons from Montreal; on the provision of free food and drink; and on video surveillance equipment. In an 18-day perior covered by a police audit, over $26,000 was spent on promotions and $5,800 on free food. The rent at the Baxter site was $500 a week and at St. Laurent $2,500. 8. The overall revenues made by the Appellant in the operation of his casinos were impressive. In October 1992, the Appellant stated that his net revenue from the Baxter operations was $20,000 to $30,000 a month. For January, 1993, the Appellant claimed gross revenues from his Ottawa casinos of $600,000. He made between $350,000 and $450,000 a year from gambling. 9. In his statement to police, the Appellant's former general manager described the bonuses he received as a percentage "of the casino profits." He conservatively estimated yearly profits of Casino Turmel at $1,000,000. A forensic audit over an 18-day period confirmed that weekly earnings after salary expenses were close to $25,000. B. Blackjack rules and limited role of players as "bank" 10. The Appellant's rules for blackjack provided that the role of the "bank" would be rotated to the players. Expert evidence was led that the "edge" associated with being the bank stems from the fact that hands that go "bust" (over 21) are forfeited to the bank and that the bank always goes last. While the player does have certain options not available to the bank, such as insurance and doubling down, the party holding the bank still has a theoretical edge of .88 percent -- assuming players are using the optimum strategy. In practice, given the varied level of skill amongst the players, the "drop"in favour of the house is industry-average as 15 percent. Only if each player can by the bank half the time is this edge shared equally between the house and the players. 11. The undercover evidence was that the bank did not rotate from the house to the players in equal manner. It did so only in a restricted manner that did not confer on the customers the full advantages that go along with being the bank. i) The player could only be the bank against one player, the house itself, and not against a number of other players. This deprived the player of an advantage normally associated with being the bank. While being allowed to bank against several players at once does not affect the bank's edge on each hand, it does permit it to benefit from that edge over a greater number of hands. ii) The rules in place did not provide for players equal time as the bank, but only obliged the player to be the bank once in the evening. iii) The rules in question were only loosely enforced and the undercover officer who took the stand only infrequently observed a customer playing the bank. 12. Given the volume of gambling at issue in this case, the edge which was in substance retained by the house created a substantial revenue forthe Appellant. From the observations of the undercover officer, between $1,500 and $24,000 in hour was being wagered at the Appellant's Blackjack tables during the operation of his casinos. 13. Indeed, the Appellant's general manager stated: "The casino makes its money from the Blackjack tables. It's what pays the bills. If you take out the Blackjack tables you wouldn't make money. If you don't make money, the casino wouldn't be there. As one employee answered police: Q: Do you think Casino Turmel makes money? A: Of course he's making money. He pays our salary. C. Appellant's contacts with police 14. While the Appellant met with police to discuss his operations shortly after the investigation into his activities began, the police advised him that they did not condone those activities, would monitor them and would charge him if he broke the law. The leases the Appellant entered into included a clause that they would be terminated if the casinos were closed down because of gaming. D. Reasons for judgement 15. Judge Wright's reasons relating to the Appellant's plea of autrefois acquit and submissions on res judicata and issue estoppel are set out at length in the Appellant's factum. 16. With respect to the substantive issue on this appeal,whether or not the Appellant's casinos were keptfor gain, Judge Wright made the following findings of fact: i) numerous bank accounts "with substantial balances" relating to the casinos were controlled by the Appellant. ii) the premises involved "were operated as a professional organized playing venue." iii) "The Crown brought evidence of profits over a particular eighteeen day period which were substantial: In fairness to Mr. Turmel, it may be completely unrepresentative of his success. Mr. Turmel responded however that "if the purpose was to show that I made money, I admit that I made money." iv) "I would conclude that this was a business, a commercial activity on a large scale. There was no evidence of any indirect gain or income whatsoever, only from the business of gambling directly. There is no other reason for the places to have been kept other than to produce income. I conclude that gambling income does come within the meaning of s.197(a) and there will be a finding of guilty." 17. The Appellant had argued that s.197(a) prohibited only indirect gains from gambling, such as revenues from drinks or parking. The trial judge disagreed. He rested his legal conclusion that "kept for gain" included direct gains from the gambling itself on the three arguments: i) a plain reading of the word "gain" in the section to include winnings from the gambling; ii) the absurdity ofrestricting s197(a) only to indirect gains; if this were the case then the gaming provisions of the Criminal Code would only criminalize the sale of drinks at casinos and leave untouched the core gambling business of the casinos; iii) the distinction between indirect and direct gains is not a significant one with respect to the commercial operation of gaming houses that Parliament was attempting to prohibit. 18. At sentence, the learned judge imposed a suspended sentence and three years probation.The conditions were a victim surcharge of $2,500, 200 hours of community service and not to gamble in unlicensed premises [varied on appeal to a prohibition on illegal gambling]. In passing sentence, Judge Wright considered as aggravating factors: i) the Appellant's related criminal record; ii) his recent four month jail sentence for gambling; iii) the $150,000in proceeds he made off his casinos; iv) the evils associated with unregulated gambling; v) the need for general deterrence. 19. In mitigation, the following evidence was considered: i) the cooperative attitude of the Appellant at trial; ii) his substantial volunteer and commmunity work; iii)the fact this was a test case as evidenced by the Appellant's advance notice to police concerning his casinos; iv) the Appellant's pledge not to set up further casinos; v) the Appellant is not a dishonest or violent individual. PART II RESPONSE TO APPELLANT'S ISSUES A. Autrefois acquit, res judicata and issue estoppel 20. The grounds of the appeal raising autrefois acquit, res judicata and issue estoppel based on two earlier Provincial Division cases (Booth and Turmel & Turmel) are without merit: 21. As Judge Wright ruled, while the posted rules of play for blackjack have remained the same across the cases cited, the locations and times are different. The evidence led by the prosecution was also different. In the Booth case, it is apparent from the Court's review of the evidence that the case essentially concerned whether the Appellant's blackjack rules avoided the prohibited rules enumerated in s.197(b). That same limited evidence was also the basis for the 1989 Turmel & Turmel decision. 22. There is no mention in the Booth case of the type of accounting or undercover evidence found here. This evidence to show under s.197(a) that the Appellant kept his gaming house for gain by operating it as a commercial enterprise. Furthermore,there was no evidence of the unequal sharing of the role of the bank as was presentedin this case. It is submitted that all of this evidence, which forms the backbone of the current conviction, is new and has not been previously dealt with in Ontario. 23. Even if the earlier cases cited had dealt with s.197(a), it is submitted that any statutory interpretation given to that subsection would not be binding on this Honourable Court. It is therefore submitted that it is in the interests of justice that this Court examine and decide authoritatively upon the Appellant's underlying argument that winnings directly from gambling are not gains under s.197(a). B. Gains directly from gambling 24. The Appellant has admitted to all of the elements of the offence leaving only to be determined whether his casinos were "kept for gain." 25. The correct approach to statutory interpretation is to look first at the plain meaning of the words.Under this approach, the hundreds of thousands of dollars earned by the Appellant can only be considered "gains." They arose directly from a business-like casinoin which the Appellant's numerous employees substantially retained for him the gambling edge accruing to the "bank." 26. Even if the word "gain" is held not to be plainly applicable to the casino's profits, a purposive interpretation of the legislation would point to the inclusion of such profits. By restricting s.197(a) to indirect gains only, the gaming provisions of the Code would be read down to mere prohibitions on casinos charging drinks or parking. This could be contrary to the clear objective of the provision which is to restrict commercial gambling itself. 27. Given the convergence of both the plain and the purposive readings of the term "gain," it is submitted that the profits from gambling at the Appellant's casinos were properly considered as gain by the learned trial judge. There is no reason to add a word to the phrase "kept for gain" so it reads "kept for indirect gain." Indeed, if indirect gains are covered by s.197(a) then "a fortiori" so should direct gains. 28. The Respondent recognizes that the jurisprudence on s.197(a) to date has focused on the indirect gains that gaming houses draw from the sale of peripheral items such as drinks. This is because gaming houses are generally clandestine operations and it is easier to prove gain from the over-the-counter transactions like drink sales than it is to show the secreted profits from the gambling itself. Furthermore,the simplified evidentiary rules contained in 197(b) mean that s.197(a) is involved less frequently. Subsection (a) necessitates the kind of thorough undercover and accounting investigation conducted in this case in order to prove direct gain. 29. For these reasons, the learned trial judge in convicting the Appellant correctly set out and applied the "business purpose" test for s. 197(a) and noted the Appellant profited from the enterprise. Both approaches flow from the Supreme Court of Canada's own interpretation of s. 197(a). [Rockert & DiPietro] 30. Given the Appellant's criminal record for similar offences and the sheer size of his operations, it is submitted that the suspended sentenceand three years probation imposed are quite lenient. The accused was given the benefit of having acted so as to bring about a test case and the benefit of a favourable pre-sentence report.IN the end, however, it must be remembered that he did commit, over a prolonged period of time, a deliberate criminal act that benefited him personally on a large scale. Some form of sanction more severe than the discharge suggested is required. It is submitted that the probationary terms imposed were the minimum fit sentence that could be passed. PART III 31. There are no additional issues. PART IV 32. It is respectully requested that the appeal as to conviction and sentence be dismissed. Dated at Toronto this 14th day of May, 1996. Of Counsel for the Respondent: Trevor Shaw, 10th floor - 720 Bay St., Toronto, ON, M5G 2K1, Fax: 416-326-4656. -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 12:02:12 1996 Xref: elastic can.general:59287 can.legal:10731 can.politics:92270 Path: elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Robin Hood Gaming House Crown Factum Analysis Date: 18 Sep 1996 11:47:41 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 851 Sender: bc726@freenet3.carleton.ca (John Turmel) Message-ID: <51ongt$m10@freenet-news.carleton.ca> NNTP-Posting-Host: freenet3.carleton.ca TURMEL: "Project Robin Hood": Crown says "Convict him anyway." That's right. In the Crown's Factum, Point 26, :26. Even if the word "gain" is held not to be plainly applicable to :the casino's profits, a purposive interpretation of the legislation :would point to the inclusion of such profits. : Even if the law doesn't prohibit his winnings, convict him anyway. It sounds like a pretty weak case if the Crown has to ask the court to convict even if it finds him innocent. Nevertheless, these are some of my first impressions of the responses I will be making to the Crown's Factum before the Ontario Court of Appeal on Monday morning at 10:30. Since it has become permissible to unobstrusively tape the proceedings for one's own notes, I usually have a pretty good recollection of what was said. : RESPONDENT'S FACTUM : PART I: OVERVIEW OF RESPONDENT'S POSITION: : :1. The Respondent respectfully submits that the doctrines of res :judicata or issue estoppel do not apply in this case. The earlier :decisions by the Provincial Division relied on by the Appellant do not :cover the interpretation of s. 197(a). The Crown says Judge Fontana did no rule on s.197(a). In Factum Point 17.2 shows that Judge Wright had stated: "Fontana makes reference to both (a) and (b). In Point 17.3, I pointed out Fontana had actually ruled on s.197(a) four times. :Even if the decisions were :applicable, their conclusions on matters of statutory interpretation :are not binding either on other provincial judges or on the Court of :Appeal. : I never argued that their conclusions were binding on the Court of Appeal. The whole purpose of double-jeopardy pleas of autrefois acquit, issue estoppel and res judicata is to make prior decisions binding on judges of equivalent jurisdiction. Even Judge Wright bowed on s.197(b) to the prior Booth decision in Point 17.1: "Were the Crown proceeding under (b), it follows that in accordance with the Booth decision....... I would acquit." :2. With respect to the merits of the appeal and the reading the :Appellant gives to s.197(a), it is submitted that Judge Wright's :interpretation -- that phrase "kept for gain" encompasses gains drawn :directly from gambling is the only reasonable one. : It is not the only reasonable interpretation for s.197(a) that "kept for gain" encompasses winnings when winnings have historically been dealt with under s.197(b). :This is particularly true given the size of the revenues drawn from :the casinos : The Crown spends much time on the size of the games though R. v. James clearly warned: @QUOTE = "The question of what is keeping it for gain ought not be embarrassed by the amount." :which were run as a business enterprise by the Appellant. : As I pointed out in Point 21.2, the Criminal Code specifically criminalizes being in the business of betting with keeping a betting house but it does not criminalize being in the business of gaming with keeping a common gaming house. Keeping a gaming house is prohibited, being in the business of gaming is not. :3. The Respondent also submits that the suspended sentence the :Appellant received was generous in the circumstances and should not be :perturbed. While the Appellant was very open about the offence he was :committing, he nevertheless broke the law and has a record for :similar gaming crimes. : The reason I was very open about the affair was that I had recently won an acquittal which does not show in my Criminal Record. :RESPONDENTS STATEMENT OF FACTS : :4. The Respondent substantially agrees with the Appellant's facts : So the Crown agrees that at least my facts are substantially correct. :but draws this Honorable Court's attention to the following additional :facts: : :A. Nature and extent of the business : Nature of the game is irrelevant unless one of the s197(b) definitions applies and again R. v. James warns not to "be embarrassed by the extent of the amount." :5. During the period covered in the information, the Appellant :maintained gaming houses at two Ottawa locations, first on Baxter Rd., :and then on St. Laurent Blvd. Both were styled by the Appellant as :"Casino Turmel." : Calling my private party rooms "casino" is not a crime if my card games are not a crime. :6. The scale of the gambling conducted at these locations was such :that it necessitated the participation of employees to act as dealers, :cashiers and runners. : In the 1989 acquittals, the courts found that agents and employees were irrelevant to whether financial flows were gaming house flows. :At the St. Laurent operation, which the undercover officer who :testified described as "a full fledged casino," 18 to 20 uniformed :employees were observed at work, serving an estimated 75 to 100 :customers. At the Baxter location, the officer saw seven Blackjack :tables, five of which were observed in operation at one time. The :Appellant himself claimed to have 100 employees and monthly wages :costs of $175,000 in January of 1993. Yes, I had more no-rake-off Poker tables than any other private game in Canadian history. My 80-hour week at my Win Rate of $125 or $250 an hour at the $25/50 or $50/100 Holdem Poker games would win me $10,000 to $20,000 a week or half a million to a million a year. Plenty to pick up the treat for a luxurious private local with free refreshments for my guests from a competent staff of private servants. Had my no-rake-off Poker games not been raided, I think I would have won a million at Poker in my first year. Instead, my formerly legal winnings have been redefined to illegal gainings and I'm a pauper. :7. Additional expenditures were made on advertising in print and by :mail; on free bus transportation of patrons from Montreal; on the :provision of free food and drink; and on video surveillance :equipment. In an 18-day period covered by a police audit, over :$26,000 was spent on promotions and $5,800 on free food. The rent at :the Baxter site was $500 a week and at St. Laurent $2,500. : And if you'll play $50/$100 Poker with me, I'll include a free bus ride for you too with your free refreshments and rake-free game. Sure I had to have high-stakes advertising if I wanted to attract a higher-stakes game for myself. :B. Blackjack rules and limited role of players as "bank" : Here they are still talking as if there is something wrong with my operation of the 50:50 U-bank even after all three judges said that the right to be the bank half the time against me meant the operation of my bank was not prohibited. Judge Fontana was quite explicit that whether the operation of the bank was fair to all was the most applicable argument and gave it his prime consideration. s.197(b4) Even Judge Wright found nothing wrong with the operations of the bank as did Judges Fontana and Lennox. :10. The Appellant's rules for blackjack provided that the role of the :"bank" would be rotated to the players. Expert evidence was led that :the "edge" associated with being the bank stems from the fact that :hands that go "bust" (over 21) are forfeited to the bank and that the :bank always goes last. While the player does have certain options not :available to the bank, such as insurance and doubling down, the party :holding the bank still has a theoretical edge of .88 percent -- :assuming players are using the optimum strategy. In practice, given :the varied level of skill amongst the players, the "drop"in favour of :the house is industry-average as 15 percent. Only if each player can :by the bank half the time is this edge shared equally between the :house and the players. : This whole discussion about the unfair edge for casinos throughout the industry demonstrates that the Crown have no idea of the mathematical concepts of Equal Chance and Mutually Exclusive. If you have an equal chance of getting the bank for yourself, it doesn't matter how big the bank edge is. Even in the old West, if the man who got the bank also got the gun and so enjoyed a 100% edge, it would still be a 50:50 fair game for you if the rules permit you to get the bank and the gun half the time too. So all talk of edge is irrelevant when there is equal opportunity to be the bank at my U-bank tables. :11. The undercover evidence was that the bank did not rotate from the :house to the players in equal manner. It did so only in a restricted :manner that did not confer on the customers the full advantages that :go along with being the bank. : But the bank had the leeway to rotate from the house to the players in an equal matter. Players could play the bank and deal hands to me or a servant right at the table or go to a U-Bank table available for those who wanted to bank a lot. The law does not say the bank must rotate in an equal manner. It says that the opportunity to be the bank must be shared in an equal manner. And I made sure your opportunity to be the dealer against me was always 50%:50%. :i) The player could only be the bank against one player, the house :itself, and not against a number of other players. This deprived the :player of an advantage normally associated with being the bank. : A condition of play at Blackjack was that you were playing with only me or my agent and no one else. You were not deprived of any advantage by having your play restricted to me. If you want some advantage from play not engaged with me, invited people to play with you. But when they come into my party room, they are all there to play with me and all judges found that it didn't matter how many people I was playing with as long as you always had a 50:50 game every time you played. :While :being allowed to bank against several players at once does not affect :the bank's edge on each hand, it does permit it to benefit from that :edge over a greater number of hands. : Bigger swings may not be construed as a benefit. How do I benefit by betting a lot with more people on the flip of a coin that you do betting a little only with me. If I invited gamblers to my party room where I and only I could make bets with everyone in the room, I do not gain any benefit by being able to flip for more and larger bets just and others do not lose any benefit from being limited to flipping whatever they want only with me. The coin determines the edge and how many others are playing besides you does not affect your chances. As long as the flip is 50:50, it doesn't matter that I'm flipping with others and you are not. Events which have no effect on each other are called Mutually Exclusive, a concept the Crown repeatedly forgets to take into account. Like allowing a chessmaster to play against several players at once does not increase his edge, and limiting the others to playing only with him does not affect their disadvantage, it does permit him to benefit from that edge over a greater number of games. And there's nothing wrong with that. It does not hurt the other chess players that they may not play against one another and they're all there to play with me and it did not hurt the other card players that they may not play against only another but only with me. As long as everyone is getting a 50%:50% opportunity to win, whether one wins or loses now becomes simply a matter of skill. :ii) The rules in place did not provide for players equal time as the :bank, but only obliged the player to be the bank once in the evening. : The rules in place did not have to provide for players equal time as the bank, only equal opportunity. :iii) The rules in question were only loosely enforced and the :undercover officer who took the stand only infrequently observed a :customer playing the bank. : But if ever anyone ever did want to be a bank or form bank cartel, everyone knew that I there, as a skilled Blackjack card counter, ready to play and most often break their bank. And even when I took greater precautions by making players take the deal at the beginning of every shoe, it did not deter the authorities from raiding. So even regular exercise of the right to be the dealer was no deterrent. :12. Given the volume of gambling at issue in this case, the edge :which was in substance retained by the house created a substantial :revenue for the Appellant. From the observations of the undercover :officer, between $1,500 and $24,000 in hour was being wagered at the :Appellant's Blackjack tables during the operation of his casinos. : Again, the question of whether the gain was illegal should not be embarrassed with discussion of the amount. But using Crown figures and figuring I'm 1% better than most, I'd be winning between $15 and $240 an hour at Blackjack, almost as much as the $250 an hour I'd be winning in one good $50/$100 Holdem Poker game. If I win money at Gin Rummy or Bridge or Backgammon, they all contribute to allowing me to provide luxurious service and accommodations for all my challengers, weak and strong, who will test me in a fair game. :13. Indeed, the Appellant's general manager stated: : "The casino makes its money from the Blackjack tables. It's what :pays the bills. If you take out the Blackjack tables you wouldn't make :money. If you don't make money, the casino wouldn't be there. : As one employee answered police: : Q: Do you think Casino Turmel makes money? : A: Of course he's making money. He pays our salary. : Who's to say from which card game's winnings came the money to pay the bills. That a winning rate at Blackjack was comparable to a winning rate at Poker suggests expenses were covered by both. :C. Appellant's contacts with police : :14. While the Appellant met with police to discuss his operations :shortly after the investigation into his activities began, the police :advised him that they did not condone those activities, would monitor :them and would charge him if he broke the law. The leases the :Appellant entered into included a clause that they would be terminated :if the casinos were closed down because of gaming. : I had met with police 5 years earlier to discuss my operations at the Bayshore Hotel and that investigation and trial began. Having ended in acquittal, I again had met with police and the monitoring continued for a year and a half before they again concluded that though nothing in the operations in the games had changed, I was now once again breaking the law. :D. Reasons for judgment : :15. Judge Wright's reasons relating to the Appellant's plea of :autrefois acquit and submissions on res judicata and issue estoppel :are set out at length in the Appellant's factum. : This does not answer any of my objections in the Appellant's factum to those reasons which disallowed the double-jeopardy pleas. The Crown goes on to the substantive issues without proving its right to raise by-pass an Appeal of the Fontana decision and re-prosecute on the identical set of relevant facts. :16. With respect to the substantive issue on this appeal, whether or :not the Appellant's casinos were kept for gain, Judge Wright made the :following findings of fact: :i) numerous bank accounts "with substantial balances" relating to :the casinos were controlled by the Appellant. :ii) the premises involved "were operated as a professional organized :playing venue." :iii) "The Crown brought evidence of profits over a particular :eighteen day period which were substantial: : In fairness to Mr. Turmel, it may be completely unrepresentative :of his success. Mr. Turmel responded however that "if the purpose was :to show that I made money, I admit that I made money." : These findings are three embarrassing facts made unnecessary by the admission of winnings. :iv) "I would conclude that this was a business, a commercial activity :on a large scale. There was no evidence of any indirect gain or income :whatsoever, only from the business of gambling directly. : Unlike the business of betting, the business of gaming directly with no evidence of any indirect gain is not prohibited in the Criminal Code. : There is no other reason for the places to have been kept other :than to produce income. I conclude that gambling income does come :within the meaning of s.197(a) and there will be a finding of guilty." : The other reason for the places to have been kept other than to produce income was to produce win since winning has never before come within the meaning of s.197(a) gain. :17. The Appellant had argued that s.197(a) prohibited only indirect :gains from gambling, such as revenues from drinks or parking. The :trial judge disagreed. He rested his legal conclusion that "kept for :gain" included direct gains from the gambling itself on the three :arguments: : :i) a plain reading of the word "gain" in the section to include :winnings from the gambling; : The courts have never used the plain meaning of "gain" to include "win." Using the dictionary as authority to mislabel "win" with the word "gain" in gambling situations produces quite enlightening results. The judge may have made the "winning" play at Bridge, not the "gaining" play. His horse may have "won" the race, not "gain" the race. Muhammed Ali "won" his fights, he didn't "gain" them. Asking him how he gained his fights, he'd surely credit his promoter. Asking him how he won his fights, he'd surely credit his athletic prowess. And he shouted "I'm a winner," never "I'm a gainer." Income from gambling is described as winning, not gaining. I urged him to use a the limited interpretation of gain found on the whole history of Canadian case law on s.197(a) while, opposing the doctrine of strict construction of criminal statutes, the Crown urged him to use the wider interpretation of gain found on his dictionary. And judge accepted to makes this a test case by going with the dictionary and widening the law to criminalizing my making a living playing cards in private. :ii) the absurdity of restricting s197(a) only to indirect gains; if :this were the case then the gaming provisions of the Criminal Code :would only criminalize the sale of drinks at casinos and leave :untouched the core gambling business of the casinos; : The Criminal Code should leave my core gambling business untouched if I am sitting at one of the tables with the biggest pile of chips. As long as I don't gain though sales, I've always had the right to win the biggest pile of chips in legal card games until this precedent-setting deviation in the interpretation. :iii) the distinction between indirect and direct gains is not a :significant one with respect to the commercial operation of gaming :houses that Parliament was attempting to prohibit. : It has been the historical distinction. The government itself demands that I account for my winnings and expenses to pursue my profession as a card player so it doubtful that it is the business of gaming which Parliament failed at its attempt to prohibit. :18. At sentence, the learned judge imposed a suspended sentence and :three years probation. The conditions were a victim surcharge of :$2,500, 200 hours of community service and not to gamble in unlicensed :premises [varied on appeal to a prohibition on illegal gambling]. : The Appellant had specifically requested not to be restricted to government licensed casinos. The court specifically varied that condition to permit me to make money playing cards at home and to also me to play in the 1996 Canadian Holdem Poker Championship which I host every year. :In passing sentence, Judge Wright considered as aggravating factors: : :i) the Appellant's related criminal record; : Without the related innocence record of my acquittal. :ii) his recent four month jail sentence for gambling; : Gambling charges not particularized to section (a) :iii) the $150,000in proceeds he made off his casinos; : The Crown counted $75,000 in registered charitable contributions I had no right to make with my winnings. :iv) the evils associated with unregulated gambling; : That Parliament has considered the evils associated with unregulated gambling weren't that evil because it has still allowed unregulated gambling under certain stringent conditions. My Government-unregulated game was self-regulated enough to eliminate most if not all of those reputed evils. :v) the need for general deterrence. : People do not need to be deterred from trying to make a living by playing cards at home because making a living by playing cards in private is not a crime. :19. In mitigation, the following evidence was considered: : :i) the cooperative attitude of the Appellant at trial; : I hope my cooperative attitude earns me some mercy as I am showing the toll of the 14 to 20 hour bus and auto rides to and from U.S. Poker casinos for court-ordered supervision in Ottawa. :ii) his substantial volunteer and community work; : ii) The Court of Appeal converted a jail sentence in 1981 into Accordion concerts which I continued to perform on a regular basis for 12 years after the community service term had expired. With a recent plethora of small muscular ailments, I simply wish to show that there is no need that I be put on a forced schedule. I'll always keep doing those Golden Ager concerts because I like to, when I can. :iii)the fact this was a test case as evidenced by the Appellant's :advance notice to police concerning his casinos; Having two judges say you've succeeded in staying within the law makes it pretty hard to have any criminal intent. :iv) the Appellant's pledge not to set up further casinos; : It was only to avoid incarceration that I accepted the condition to not set up any more games. I abided by the pledge until the Ontario Court of Appeal varied the condition to allow me to hold my Canadian Championship Poker casino and resume playing cards in my home, :v) the Appellant is not a dishonest or violent individual. : There's no reason to be dishonest when you're the best player in the game. Your contribution to my five bets an hour if you're sitting across from me at a ten-opponent Poker game is half a bet an hour. Your contribution if you're sitting across from me at a 2-man Blackjack game is also about half a bet an hour. Play these games with me and you should expect to lose half a bet an hour. Of course, your skill determines whether you lose more or less than half a bet an hour or whether you expect to win. : PART II : : RESPONSE TO APPELLANT'S ISSUES : :A. Autrefois acquit, res judicata and issue estoppel : :20. The grounds of the appeal raising autrefois acquit, res judicata :and issue estoppel based on two earlier Provincial Division cases :(Booth and Turmel & Turmel) are without merit: : :21. As Judge Wright ruled, while the posted rules of play for :blackjack have remained the same across the cases cited, the locations :and times are different. : This is so so weak. Earlier, they just dropped the subject of right not to be tried twice. Oddly, the Crown's now cites only two cases in its Book of Authorities though I cited numerous more. Those two are the best, R. v. Carrier and Montreal v. Rothman. The Rothman apartment-house had been acquitted of being a rooming house but had been charged with being a rooming house a second time. The Crown had argued that the "times are different" and the double- jeopardy protection of autrefois acquit didn't apply. The judge said the protection did apply even if the allegation was on a different day. As it makes sense that it should when time is immaterial. Even more strongly in Carrier, autrefois acquit was applied to a poster which had been acquitted of being a seditious poster but was charged with being a seditious poster at another location and time. The Crown had argued that the "locations and times are different" and protection did not apply. The judge said it did apply even if the allegation had a different date or location. So too in my case, autrefois acquit should apply to a card house which had been acquitted of being a gaming house but was once again charged with being a gaming house, when the only difference the Crown has to argue is that the "locations and times are different." :The evidence led by the prosecution was also different. : The relevant evidence contained in the Statement of Agreed Facts was identical. The only difference was that the current Court was presented and accepted evidence of the facts which had been agreed upon while the former Courts were not. :In the Booth case, it is apparent from the Court's review :of the evidence that the case essentially concerned whether the :Appellant's blackjack rules avoided the prohibited rules enumerated :in s.197(b). That same limited evidence was also the basis for the :1989 Turmel & Turmel decision. : Again the Crown continues to insist that Judge Fontana concerned himself with only s.197(b). It does not follow that because more time was spent on section (b) with its four definitions that no time was spent on section (a) with its one. Why else would Judge Fontana mention the issue of sales at all if he wasn't considering it under (a). Gain from sales can't be considered under the (b) subsections. Judge Fontana did consider evidence of gain from sales and four times ruled it out with respect to my winnings from my games. Again this issue boils down to whether Judge Fontana dealt with subsection (a) four times or if he failed to deal with it at all. :22. There is no mention in the Booth case of the type of accounting :or undercover evidence found here. : Once again, because the Statement of Agreed Facts admitted that I was a winning player, there was no mention of the type of accounting or undercover evidence found here because it was deemed irrelevant after the cooperation facilitated our Agreed Facts. :This evidence to show under :s.197(a) that the Appellant kept his gaming house for gain by :operating it as a commercial enterprise. : More evidence of the business of gaming which is not prohibited like the business of betting. :Furthermore,there was no :evidence of the unequal sharing of the role of the bank as was :presented in this case. : After ruling that the opportunity to have the bank half the time was all that was required players to have been treated fairly, the former court dispensed with evidence of the actual percentage of time sharing as the bank as irrelevant. :It is submitted that all of this evidence, :which forms the backbone of the current conviction, is new and has not :been previously dealt with in Ontario. : All this evidence is new only because it had been dispensed with as immaterial by the former Crown once all the facts had been agreed upon. With all this irrelevant evidence as the backbone of their case for a difference, there's no backbone there. :23. Even if the earlier cases cited had dealt with s.197(a), it is :submitted that any statutory interpretation given to that subsection :would not be binding on this Honourable Court. : I never raised the suggestion that earlier cases would be binding on the Appellate Court. The Crown did. I only said it was binding on equivalent courts. The Crown now says that because it is not binding on the court I did not say it was binding on, that it is also not binding on the court that I did say it was binding on. This does not follow. "Even if" the earlier cases cited had dealt with s.197(a), four times, autrefois acquit, issue estoppel and res judicata teach that it is binding on courts of equivalent jurisdiction. The fact Judge Wright acknowledges he must follow Judge Fontana where he did rule, on the (b) sections, is in itself proof of the doctrine being followed by my own trial judge. To now argue that those decisions do not apply to my trial judge after he has already bowed to their precedence is to ignore reality. That Judge Fontana did also rule on the (a) subsection is the main reason I may argue that autrefois acquit, issue estoppel and res judicata, the double jeopardy pleas, all apply. If they apply to Fontana on the (b) sections, why not to Fontana on the (a) section once it's admitted he did handle the (a) section. :It is therefore :submitted that it is in the interests of justice that this Court :examine and decide authoritatively upon the Appellant's underlying :argument that winnings directly from gambling are not gains under :s.197(a). : When they ask the court to act in the "interest of justice," it's usually because they can't prove any violation of actual code. Repeating the ruling of Judge Fontana on whether winnings directly from gambling are gains under s.197(a) or not: @QUOTE = "The opportunity to be the banker\dealer was available to all players who participated in the game.... "The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section." :B. Gains directly from gambling : :24. The Appellant has admitted to all of the elements of the offence :leaving only to be determined whether his casinos were "kept for :gain." : :25. The correct approach to statutory interpretation is to look first :at the plain meaning of the words. : It is absolutely incorrect to use the dictionary for the widest latitude in interpretation. It is to refer to the case law precedents limiting the latitude in interpretations. The doctrine of strict construction mandates that case law not be ignored and criminal definitions expanded to the largest array of synonyms possible in a dictionary violate the principle. :Under this approach, the hundreds of thousands of dollars earned by :the Appellant can only be considered "gains." : Judge Fontana ruled they were "wins" through skill which in no way conferred an unfair advantage as contemplated by the section. :They arose directly from a business-like casino in which the :Appellant's numerous employees substantially retained for him the :gambling edge accruing to the "bank." : Again they're saying something was unfair about the operation of the bank. They argue that because I end up with the bank most of the time, it must mean that you weren't given the right to personally have it half the time. Judge Fontana ruled that because you were given the right to personally have it half the time, it didn't matter how little or how much any player chose to bank. All three judges said that none of the anti-bank (b) sections of applied. The edge was not accruing to the "bank." It was accruing to the gambler whether I was the bank or whether I was the player. :26. Even if the word "gain" is held not to be plainly applicable to :the casino's profits, a purposive interpretation of the legislation :would point to the inclusion of such profits. : !!! "Even if he's innocent, convict him anyway" is what it tells me. The Crown is telling the Court that even if "gain" does not apply to "winnings," Parliament meant to include winnings so the Court should include winnings anyway. If Parliament had wanted the winnings from the business of gaming to be included in the gaming house sections like they included the winnings from the business of betting in the betting house sections, they would have. And they didn't. It astounds me to hear a Crown Attorney suggesting to a court that even if I'm not guilty, I should be found guilty anyway because that's the way the Parliament must have wanted it. This is the strangest criminal plea I've ever heard. I wonder if any defence lawyers have heard many prosecutors asking the judges to find their clients guilty even if they're not. :By restricting s.197(a) :to indirect gains only, the gaming provisions of the Code would be :read down to mere prohibitions on casinos charging drinks or parking. : Obeying those conditions were the only way to avoid being charged under section (a) if you were avoiding the (b)s by letting the banks could move, taking no rake-off, taking no fee, and the rules were the same for all the players. The dozens of gaming house acquittals in case law are all testament to winning being okay as long as you weren't gaining through sales. :This could be contrary to the clear objective of the provision which :is to restrict commercial gambling itself. : The provisions are not to restrict the business of gaming itself like the business of betting. A history of professional tax-paying card-playing winners are testament to winning being okay as long as you weren't gaining through sales and you paid your taxes. :27. Given the convergence of both the plain and the purposive :readings of the term "gain," : Of course the Crown sees convergence between their wishing to expand the definition of gain to include winnings just like the dictionary's includes winnings as gain from within the largest possible array of synonyms. :it is submitted that the profits from :gambling at the Appellant's casinos were properly considered as gain :by the learned trial judge. There is no reason to add a word to the :phrase "kept for gain" so it reads "kept for indirect gain." Indeed, :if indirect gains are covered by s.197(a) then "a fortiori" so should :direct gains. : "A fortiori" NOT! The (b) sections handle direct gains out of the game. That's why only indirect gains are covered by s.197(a). :28. The Respondent recognizes that the jurisprudence on s.197(a) to :date has focused on the indirect gains that gaming houses draw from :the sale of peripheral items such as drinks. : Remember that he had earlier said: :ii) the absurdity of restricting s197(a) only to indirect gains; And yet here he recognizes that all the jurisprudence on s.197(a) to date has focused on indirect gains, not direct gains from the game. He asks why the courts would have been so absurd as to limit their focus to indirect gains from sales and not direct wins from games. It was not so absurd because they had the (b) sections to deal with illegal wins from the games. :This is because gaming :houses are generally clandestine operations and it is easier to prove :gain from the over-the-counter transactions like drink sales than it :is to show the secreted profits from the gambling itself. :Furthermore,the simplified evidentiary rules contained in 197(b) mean :that s.197(a) is involved less frequently. It does not follow that in clandestine games, it is easier to prove section (a) sales than section (b) rake-off. The Crown admits that section (b) has simplified evidentiary rules to make it even easier to prove if the gambling is illegal. Actually, section (a) has been used in every case where there have been allegations of sales gains and never in allegations of gambling gains. :Subsection (a) necessitates :the kind of thorough undercover and accounting investigation conducted :in this case in order to prove direct gain. : No. Section (a) necessitates investigation to prove indirect gains. Because you have such an easy time proving anything illegal in the game with the (b)s, that's the reason the last restriction on legal games refers to only indirect gain. Counting my chips is proof of direct wins. Since all judges have ruled that how I won my chips was legal, you're not supposed to counting my chips. And you didn't need a thorough undercover and accounting investigation given the Agreed fact that I was winning. Go look for some sales slips. And the deliberations are again embarrassed by the amount. :29. For these reasons, the learned trial judge in convicting the :Appellant correctly set out and applied the "business purpose" test :for s. 197(a) and noted the Appellant profited from the enterprise. : There is no "business of gambling" test like there's a "business of betting" test and Judge Fontana ruled that my profession gambling winnings were never contemplated by the section. :Both approaches flow from the Supreme Court of Canada's own :interpretation of s. 197(a). [Rockert & DiPietro] : What a joke! The two cases they cite were both acquittals. I've even argued the Rockert defence. DiPietro sold coffee to the winner who bought the rounds after their hand was over. The court ruled that it wasn't convinced the gambling mattered to the increased sale of coffee. Those winning at the table weren't charged at all. Rockert was acquitted after running Blackjack games and not selling anything. Those Blackjack winnings were innocent. I guess they didn't failed to suggest to the Supreme Court of Canada that even if Rockert is not guilty, that they find them guilty anyway. :30. Given the Appellant's criminal record for similar offences and :the sheer size of his operations, : A Criminal Record lacking mention of my acquittal. Again they want the million a year I could legally win at Poker and other legal card games to be a factor in the deliberations when "the notion of gain should not be embarrassed by the amount." :it is submitted that the suspended :sentence and three years probation imposed are quite lenient. : Not for a mitigating previous acquittal or the cooperation. :The accused was given the benefit of having acted so as to bring :about a test case. The Crown has this backward. The Crown was given the benefit of having brought about this test case. Not me. I had already brought about my test case in 1989. Judge Wright called his ruling a test case of whether winnings can be included with gains. All previous judges had said they were not. Judge Wright has said yes. I have received no benefit in the Crown's having brought about this test case. :and the benefit of a favourable pre-sentence report. : The benefit of the favourable pre-sentence report did not preclude the humiliation of clearly unnecessary physical supervision and penance. Why should I be put to suffering penance when it was the Crown who are testing the change in rules on me? :In the :end, however, it must be remembered that he did commit, over a :prolonged period of time, a deliberate criminal act that benefited him :personally on a large scale. : As even the police dubbed my raid "Project Robin Hood," any large-scale benefit went to the community at large in the promotion of Greendollar Local Employment Trading Systems. Winning and spending a million was of very small-scale benefit to me personally. Judge Wright has accepted that Robin Hood spent it all in good works and is now a pauper and still owes Revenue Canada over $300,000 growing with usury. I'd submit that impediments to my earning a livelihood are too harsh a penance for this test case. :Some form of sanction more severe than :the discharge suggested is required. It is submitted that the :probationary terms imposed were the minimum fit sentence that could be :passed. : The court was made aware of a virtually identical situation where someone who had no reason to think he was breaking the law cooperated to the extent that I did and received an absolute discharge. The present conditions impose an onerous pressure on my life. : PART III : :31. There are no additional issues. : : PART IV : :32. It is respectfully requested that the appeal as to conviction and :sentence be dismissed. :Dated at Toronto this 14th day of May, 1996. :Of Counsel for the Respondent: :Trevor Shaw, :10th floor - 720 Bay St., :Toronto, ON, M5G 2K1, :Fax: 416-326-4656. Considering the Court of Appeal has already ruled that I may make my living playing cards at home, I wonder how they'll deal with Judge Wright's new interpretation that it is not gain to make my living playing cards at home. -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 12:23:03 1996 Xref: elastic can.general:59288 can.legal:10732 can.politics:92271 Path: elastic!lethe!gts!torfree!worldlinx.com!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Robin Hood Gaming House Appeal Transcript Date: 18 Sep 1996 12:09:14 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 1131 Sender: bc726@freenet3.carleton.ca (John Turmel) Message-ID: <51oopa$mej@freenet-news.carleton.ca> NNTP-Posting-Host: freenet3.carleton.ca This is a transcript of Monday May 27, 1996 hearing before the Ontario Court of Appeal from my audiotaped notes. Where the speech was not loud enough for clear reception, I've added xxxxxxx. John C. Turmel May 27, 1996. ONTARIO COURT OF APPEAL Justices Finlayson, Abella, Austin R. v. Turmel, keeping common gaming house For the Appellant: John Turmel For the Crown: Trevor Shaw FINLAYSON: Now, we're expected to deal with a common gaming house and review the sentence's probationary terms. xxxxxxx Mr. Turmel TURMEL: Well, my lords, this case started a long. In 1993 in particular, I appeared before you, Justice Finlayson, on a motion for an extension of time for the Crown to appeal an acquittal I had gained in 1989 of a gaming house charge. I'm a professional gambler, I have been for the last 22 years, I was the Teaching Assistant of the Mathematics of Gambling course at Carleton University and as a professional gambler, I was trying over the years to find ways to have a legal venue to play which included several raids where I was convicted also and then in 1989, finally, I was acquitted. The judge said: You've found a way of not violating the four (b) sections and of course, not violating the (a). That was Justice Fontana and Justice Lennox out of the Ottawa courts. So with this approbation that I wasn't violating any of the five gaming house sections, I started playing more and more. The next thing you know, I had seven Poker tables which were feeding one large table where I can play. And at my rate of approximately 5 bets won per hour, obviously, if I can get a $25 game going, that's $125 an hour. And if I can get a $50 game going, it's $250 an hour. And if I would have ever managed to get a $100 game going, it would have been $500 an hour and when you consider I play 80 hours a week, you're talking potential winnings at just the Poker of between $10 and $40 thousand dollars a week. I currently make my living in Atlantic City at only $10/$20 because I'm a pauper and I don't have the bank-roll to play at higher stakes. But I still do achieve my 5 unit win over those times and so. AUSTIN: Mr. Turmel, could you tell me about the Crown's application for an extension of time in which to appeal? TURMEL: No, no. The problem was: I made the application for the Crown and they didn't want to appeal. It was kind of unusual. I was told that, here's the problem. The game had grown, I'd called it Casino Turmel and it had grown to seven, eight, nine, ten tables, no rake-off of course at the Poker because I know the law and I like playing no-rake-off Poker myself, and then in 1989, I was acquitted, and in 1993, I also had a game going on in Toronto. And in 1993, the Toronto Police said: If you don't shut your game down, we're going to raid you anyway. We don't care what the judge in Ottawa said. So I did. I bowed to what I considered vigilante police force and I shut down my Toronto game and I said: What if they come after me into Ottawa and they try and to the same stunt, say: We don't care what the Ottawa judges say, we're just going to bust you again anyway. So, to forestall that possibility, I said: Look, if you guys don't like Fontana's decision which says I'm not a gaming house, I'm going to consent to your appealing but for God's sake, don't bust me and my friends because it would be very inconvenient. And that's why I came to Justice Finlayson saying to Crown: If you don't like Fontana's judgment acquitting me, well, here, I give you my consent for an extension of time to file an appeal and see if my gaming house, my card house, is a gaming house or not. They didn't want to. Three months later, they raid my place and they shut me down and charge me with running a gaming house. Again. So this case revolves on two major points. ABELLA: Let me stop you for a moment, Mr. Turmel. I just want be clear that the place that was raided in 1993 was exactly the place and operation that resulted in your acquittal in 1989? TURMEL: Well, it was a different location. But the judge himself said there was no evidence of any change in the operations at all. Okay? The second judge, in 1993, said there was no evidence of any change in the operations at all. And that's the reason I raised the issues of issue estoppel, res judicata and autrefois acquit in my pleadings. ABELLA: The only change was location? TURMEL: That. And time. It was a different year. ABELLA: Right. TURMEL: And of course, you'll note in the Crown's factum, the only argument they use against my getting the protection of issue estoppel, autrefois acquit and res judicata is that they were different times and places. Everything else was the same. Same card games, Blackjack and Poker. Blackjack where you're playing with me alone, 50:50 percent of the time you can be the bank. The judge said that's okay. And Poker with no rake-off, everybody knows that as long as there's no rake-off, you're getting a fair game with me even if you do expect to lose half a bet an hour, you and other 9 guys at the table, when I'm in the game. But the point is the judge ruled that it was legal and fair and hadn't violated the code, and in 1993, another judge ruled that even though nothing in the operations of the games had changed, it was now going to be concluded that it was now a gaming house and convicting it. So, two issues, whether or not the second judge's conviction was correct and the first judge's acquittal wrong, or vice versa. And whether the second judge had any right to hear the same evidence at second time at all. Now I had argued before Justice Finlayson at the time that the Crown had no right to go and ignore the Fontana decision and relay the charges without evidence of something new, fresh evidence, and that's why I was offering them an open opportunity to file an appeal. Now the problem for the Crown and the police was: if they had gone the legitimate route to approach this court and filed an appeal against Judge Fontana's decision, and in the meantime, the game he had pronounced legal would continue to be open. To forestall that, they simply shut me down and retried me again while arguing that it wasn't res judicata and issue estoppel. And if you'll note on Point 23 of the Crown's factum, they say that: Even if we have no right to be here on issue estoppel, res judicata and autrefois acquit, even if everything had been dealt with by Judge Fontana so that we have no right to do it a second time, do it anyway. It's what the Crown is asking you in point 23. Even if they have no right to be here because they're violating my rights to res judicata, issue estoppel and autrefois acquit, they're saying: Forget it and just deal with it anyway. Because the last thing they want is for you to tell them that they shouldn't have shut me down three years ago, they should have appealed Fontana, and: You've robbed him out of three years worth of earnings. I'd have been a millionaire by now. Instead, I'm a pauper. But that's another part of the story. Now, I'll go into greater detail of the autrefois acquit and res judicata but first I'm going to deal with the actual judge's decision. Now Judge Fontana knew there were five ways to be a gaming house and this is so important that I am going to read out his decision on that issue from my Factum on page 20 point 17.4, the middle paragraph with the chart beside? You see, the Crown's argument is that Judge Fontana handled section (b) of the gaming house law but he did not do section (a). That's why they could come in and argue section (a) and it wasn't res judicata because Fontana didn't do section (a). That's the whole Crown basis for why they're allowed try me a second time on the same evidence, that Fontana did not do section (a). Now I pointed out, article 17.4: "17.4 Parsing the passage on page 7 of Judge Fontana's ruling to determine whether he makes reference to both (a) and (b) or not, the evidence for definition section 197 was marshalled and he said: | Definition Sub-sections | (a) (b1) (b2) (b3) (b4) |GAIN BANK RAKE FEE EDGE - "refreshments were available but |------------------------ there was no charge for them," | X That must apply to one of the sections. "- there was no fee to enter the game," | X Well, we know that's section (b3). "- there was no percentage or rake-off," | X We know that's section (b2) "- a player exercised his right to be bank." | X And we know that's section (b1). Now on the next page, point 17.6, we continue with what Justice Fontana said: | (a) (b1) (b2) (b3) (b4) "Common gaming house is defined in five ways.|GAIN BANK RAKE FEE EDGE The operation clearly does |------------------------ not fall into the first four categories: | X X X X that is a place kept for gain," | X Now, that's section (a) that the Crown says Fontana didn't deal with it. And I just don't know how to keep repeating this because the Crown Attorney in Ottawa thought that Fontana wasn't talking about (a) when he said the place was not "kept for gain." And this Crown Attorney has repeated three times in his Factum that Judge Fontana didn't deal with (a) and yet Judge Fontana said: Were there refreshments sales? No. Therefore, not a place kept for gain. "or for playing games where the bank is | held by one or more but not all the players, | X And that's section (b1) "or where there is a rake-off charged, | X That's section (b2). "or where there is a fee charged. | X That's section (b3) "Clearly, none of these four criteria apply" | X X X X So again he's saying: Clearly, section (a) doesn't count in here. "If the operation is to be caught, it must | be caught with respect to subsection four. | ? The advantage that is derived to an | individual by reason of his own skill and in | playing the game in no way confers an unfair | advantage as contemplated by the section. | X X X X X |------------------------ So, my point is that Fontana repeated four times that section (a) didn't apply after citing all the evidence only with respect to refreshments, Point 17.7, - the first time when he said that clearly, the first four subsections do not apply; - the second time when he used the actual words of the (a) subsection to say it was not "a place kept for gain;" FINLAYSON: Where do you find this? TURMEL: Oh. Point 17.7. FINLAYSON: No. Where do you find it in the transcript? SHAW: To assist the court, they're in the Respondent's Book of Authorities at Tab 6. FINLAYSON: Mr. Turmel, it's after one o'clock, we'll break for lunch. CLERK: Court stands adjourned until 2:30. CLERK: Court will resume. TURMEL: I believe I had just pointed out that Judge Fontana had dealt with all five of the subsections, including section (a) which he cited four times. You'll notice within the Crown's factum that they deny Justice Fontana dealt with section (a) at all and yet I would point out that Judge Wright himself on Nov. 15, at a preliminary motion for autrefois acquit, himself mentioned to the Crown: Gee, it looks like Judge Fontana dealt with both section (a) and section (b). FINLAYSON: Mr. Turmel, I don't want to tell you how to TURMEL: Yes. FINLAYSON: We understand what you're saying about xxxxx you've only have half an hour to argue your case, . TURMEL: Yes. I mean, there's not much more to go. FINLAYSON: xxxxx basis xxxx TURMEL: Was erroneous, yes. FINLAYSON: xxxxxxx TURMEL: Okay, yes, as long as.. You will be running into those statements where the Crown keeps repeating Judge Fontana dealt with only section (b). FINLAYSON: Well, we'll hear that from the Crown.. TURMEL: I just want to stress that he mentions (a) four times. Okay. As for the actual ruling on the winnings, the Crown admits in its factum that there is no jurisprudence ever for winnings to be considered as gainings. And that is because throughout all of history, all direct profits from the game were dealt with the four (b) subsections and to handle people who made money by profiting indirectly, the created an (a) section. For gain out of the house rather than win out of the game. Now, the judge has ruled that he finds it absurd and illogical that section (a) would only deal with respect to parking and food and drinks and not direct gambling. And that's because they fail to realize that section (b) does that job. And you'll see the Crown reiterates those beliefs that it's absurd for section (a) only to deal with sales and why not direct gambling? And they admit that all of historical case law is so absurd that all historical case law deals with (a) and sales. And they call it absurd until one realizes that section (b) is there to deal with the illegal banks, to deal with the rake-off, to deal with the fees and to deal with illegal edges. Well, yeah, section (a) can deal only with sales which they think is absurd. And of course, the judge ruled that way also. He ruled that winnings were now gainings. He admitted this was a test case. And he is the one who is making the test case. The Crown says: John Turmel has the benefit of having started this test case. I didn't start this test case, they did. I started my test case in 1988 when I was raided at Bayshore. And I won my test case. This is a test case by the judge who says: This is a test case of whether I can say that winnings, which were always dealt with under (b) before, can now be dealt with under (a). He does it that way. Well, I'm admitting it's never been done before. Now I'm arguing that section (a) deals only with sales because section (b) deals with the winnings. And, as a matter of fact, when the judge convicted me, he said: Now remember, making a living playing Poker in home is now illegal gain and I'm going to restrict you to playing only in licensed casinos. You can't play in your house no more. Because making a living in my house is now illegal. Well, I filed an application before the Court of Appeal for a stay of that condition so I could continue playing Poker in my house and go to my own private, the Canadian Championship of Poker and believe Justice Austin was on that panel with Justice Labrosse and another when Justice Labrosse said: There's no difference between playing your home and playing in a licensed establishment." AUSTIN: That's not part of the endorsement. TURMEL: No. That's his statement. We were both there. The endorsement was that we will change the condition from licensed premises to anything that's illegal. Which means stay out of illegal games but my homes not illegal. AUSTIN: Justice Labrosse's statement did not form part of the endorsement. TURMEL: Oh I understand but that statement stuck in my mind because, as far as Justice Labrosse is concerned, he and the boys are allowed to play Poker at home. Now a judge is telling us I can't do that anymore because I'm a winner. What if Justice Labrosse is a winner? He didn't know Judge Wright had changed the rules. Suddenly, and going against all the jurisprudence in history, decides he's now going to apply the gain to winnings. Well, I didn't hold the "gaining" cards. I held the "winnings cards." I didn't bet on the "gaining" horse, I bet on the "winning" horse. "Gain" just does not replace the word "win" in a gambling situation. And that's why they use winning for gambling and gaining for sales. And that's why all of history decided that the direct winning from the game is in the (b) and the indirect is in the (a). And those are points that Judge Wright just said that in his test interpretation he wants to change. Well my final point of appeal is against sentence. I was given 3 years probation which means I have to come back from Atlantic City on 14-hour bus rides every month, if I'm there or Biloxi Mississippi. It's back and forth to visit a probation officer when everybody knows I'm not going to break the law like this again. No more 20 table gaming houses. And I have to come back to do community service which is accordion concerts. In 1981, Justices Houlden, Dubin and Blair altered a jail sentence into playing accordion in old-folks homes. And after my community service was done, I continued those concerts in old-folks homes for another 13 years and I pointed it out to the judge and I believe the Crown in their factum admit my "substantial community service," and I asked the judge: I'll continue those concerts but please don't give me a force schedule. But he gave me 10 hours a month minimum and trying to fit them all in near the end of a month and next months all in at the beginning means I'm forced to really cram and I've been suffering some muscular ailments recently, my elbow's sore, I've had tendonitis for two months. I'm a little behind in my community service right now, actually, I have a letter from my community service worker telling me that I'm a little late and that I'd better get moving, and so, I'm saying that given the fact that I didn't start this test case, I just went with the ruling of the judges who had acquitted me, I would think that this case really calls for an absolute discharge. I mean, to stick me under penance and supervision, I just think is unfair given that I broke my back trying to do everything legal, I consulted with the police, I showed them my.. I invited them in. Nothing was hidden. I was cooperative at trial, and I believe that it was in the Stewart case where they cite Justice Krever, similar situation, the guy was cooperative because he didn't believe in breaking the law and they issued an absolute discharge there. Well, I think that given the fact that this is the Crown's test case, that I shouldn't be forced to undergo this penance and this atonement and I think the general absolute discharge would be most fair if this court should not find favor with my legal arguments. So on the basis that.. they can't change the rules. I mean, the strict construction of statutes says that judges have to live by the tight rules when you're convicting and if you're going to loosen up the rules, it's for an acquittal. And now we have a judge who says: We're going to loosen up the rules for a conviction. Why? Because rather than go with Turmel and his 50 cases of law, we're going to go with the Crown and a dictionary. I swear. The Crown showed up in court without any case law and they had a dictionary and said: See. Winnings equal gain. Gain equals winnings. So instead of going by all the case law FINLAYSON: Why were you running this game? TURMEL: Well sir, I am the best player and even if I provide some of the smaller players with a rake-free game, the winners will move up into my level. FINLAYSON: I understand but why do you do it? TURMEL: I make a lot of money, my lord. FINLAYSON: You make a lot of money by conducting these games. TURMEL: I'm a very good Poker player and until this case, playing Poker was never illegal before. FINLAYSON: Isn't that the reason that you're conducting these games, to make money? TURMEL: Absolutely, to make winnings, not gainings. And you'll notice my judge agreed with Fontana and Lennox that there's nothing with the (b) section, there's nothing wrong with how he won his money at the Poker because there was no rake-off. This is an issue of whether his Poker winnings are going to be called gainings and criminalized. Now, it's the first time in history. Previous to that, my card playing winnings were legal, declarable, taxable. And throughout our whole Canadian history, professional gamblers are called upon to declare their winnings and pay their taxes. And Judge Fontana himself said that the section is not aimed at winning through skill, by reason of one's own skill at the game. Which is the reason why Poker games in general throughout history have been legal. Without an unfair edge or rake-off to one guy, you're getting fair game so it's okay. Now the judge has decided that it's not a question of how you won your money that's going to be the crime, it's whether you win money that's going to be the crime. FINLAYSON: The game was kept for the purpose of ... TURMEL: Winning. Not gaining. FINLAYSON: If the place is kept for gain? TURMEL: I kept it for win. I know that's subtle difference but I've brought along a chart which I've used before. As the former Teaching Assistant in a Math course, I know charts help. CHART: /\ / \ / \ / PLACE \ / KEPT FOR GAIN \ / TO WHICH \ / PERSONS RESORT FOR \ | THE PURPOSE OF | | | | -------------- | | | | | | | GAMBLING | | | | TABLE | | |--------------------------| $ Valet Parking Video Games $ + G.S.T. $ Entry Fee Photos $ $ Coat-check Drink $ Food $ Smoke $ And the law says "place kept for gain" "to which persons resort for the purpose of playing games." Things like valet parking, entry fees, coat-checks, food, smokes, photos, video-games. All those are section (a) gain. All the history is sales and refreshment and parking. If you've got a game, even with no rake-off, if you make money out of one of these GSTable commerces, you're committing a section (a) infraction. Now if the guy in here takes a rake-off out of the game, that's section (b) or if he has a fee or if he has an edge or if he doesn't let the other guys play the bank. That's a (b). Then you don't care whether food was sold. But if none of the (b)s apply and you have legal gambling, you can still violate the law by (a), by selling stuff. And what's key about the grammar is "gain to which persons resort for the purpose of playing games." Now, if the game disappears, no game, all of these activities are legal, these section (a) activities become legal. But the moment the game shows up, now the restauranteur is in trouble. So my point is this. I make my winning from the game, a win, which, when there's no game, there's no win. But when there's no game, there can still be gain for the house. These are house gains. These are gains made by the house to which persons resort for the purpose of gambling, legal or not. My point is that I made wins out of the games while avoiding all these GSTable section (a) transactions. And because the previous judges had said "his game doesn't violate (b1), (b2), (b3) of (b4) and it doesn't violate (a)." Now this judge has said "Even though his winnings aren't illegal winnings, we're just going to say that these are winnings which are coming out of the place instead of out of the game and now we can nail him. And the point is I did not make my winnings out of keeping the place, I made my winnings out of playing the game. It's subtle grammar but it's there. So, Judge Wright misinterpreted section (a) to include winnings and if that were so, you wouldn't need to have any of the (b) sections. So given the fact that I believe Justice Fontana was historically correct, given I believe Justice Wright's' expansion of the law in order to gain conviction is a violation of the doctrine of strict construction of statutes, and given the fact that there's no chance I'm going to commit this crime again in the next two years during the remainder of my probation, and given I've already done 80 hours of accordion concerts so far, I will continue over the next few years though I ask this court to life the burden of a minimum 10-hour monthly session and lift the burden of supervision I honestly don't believe is necessary for any purpose and, if I don't win this case on the merits that I have raised, then I would simply ask that the punishment be mitigated given the fact that this was a test case on the part of the court and how was I supposed to know the law was going to be reinterpreted a new way as it had never been reinterpreted before, especially after two previous judges had said "you're innocent doing it the way you are." The last final point again is that Judge Wright did admit that there were no changes in the way the game was run, from the game which was acquitted and to the game which he convicted. On the grounds he had no right to question their decisions once they had made their decisions, issue estoppel, res judicata, autrefois acquit apply to courts of equivalent jurisdiction. Now the Crown has raised the issue estoppel applies to your jurisdiction.. FINLAYSON: The Crown will be going over that. TURMEL: I'm correcting one objection FINLAYSON: You'll get a reply. TURMEL: Oh, alright, thank you. Well that's it, I've covered all my points. Yes. My Lord? AUSTIN: Something you just said about whether or not there was a change in the circumstances. In the earlier matter before Judge Fontana on page 5, talking about exercising the right to be dealer, it says: "the player exercised his right to be the dealer, then that person played against him, that is Mr. Turmel, and not against the other players at the table. Those other players would then to go another game which would be played with an agent of Mr. Turmel at another table or perhaps play among themselves. TURMEL: Correct. And those rules applied at the new place. AUSTIN: Or perhaps play among themselves. TURMEL: I mean who can stop, I mean I'm picking up the treat for everybody who is coming to play with me. AUSTIN: xxxx Patrons were not allowed to bank against other patrons. TURMEL: That's right. In other words, when you came to play Blackjack back at my place where I was picking up your tab to play with me, you were playing only with me. Nobody else. That's the deal. If you want to go play with someone else somewhere else, that's fine, that's not stopping you. But if you want come into my premises to play Blackjack, the rules are that you're playing only with me and you're going to get a 50:50 game. AUSTIN: Alright. I can play against you. Other people who have to go somewhere else, they would play against your employees. TURMEL: Sure. Or myself. AUSTIN: If client B finishes playing with your employee and B wants to the bank? TURMEL: Then I'll switch with the employee because I like to play. AUSTIN: So you'd play against B. TURMEL: You see my point is: Banking is boring because it's a robot function. The point is: I am the player or the banker and if you want to be the banker, I'll play, but if you want to be the player, I'll let someone else do it. That's all I meant. And Judge Fontana ruled those agents did not detract from your getting a fair game. As long as you've got a 50:50 chance of playing with me and you can be the bank half the time, Fontana said it doesn't matter how many other people I'm playing with, just like a chess-master. If I'm playing chess with you and I've got 20 other people, it doesn't affect your odds. And that was Fontana's ruling. So there's nothing wrong. And even Judge Wright.. AUSTIN: Thank you. CROWN TREVOR SHAW: SHAW: Thank you. I think Mr. Turmel's submission is correct. The rules of Blackjack may not have changed from case to case. The fact is it's very important the way the rules were carried out. And so it's not just a technical objection to the res judicata point that there were different times and different locations. It's also that the evidence led was different. There was undercover evidence led to point out the real nature of the rotation of the bank. And there was both accounting and undercover evidence led concerning the volume of transactions and most of this evidence concerned the game of Blackjack, simply because the Poker itself, with no rake-off, would be neutral. And so for the Appellant to be before you and say that this judgment makes illegal Poker games at home, I don't think is the point because the evidence that was led clearly that it was the Appellant's dominant position as bank at Blackjack games that brought in revenues. And it was from Blackjack that the Appellant was able to at the end of his day to net approximately a thousand dollars a day from the operation of these casinos. Also I think if you're thinking about the person having the week- end game of Poker, you should also ask yourself whether you'd be having that in a large locale that was at a weekly rent of $2,500? Would you have over 100 employees working or you? Whether you as the holder of that game in your living room would be operating with a large number of agents in the running of it? And I think that all that information is legally significant when you look at whether it was kept for gain or not. And while there is perhaps on a case, right on point, I'll be taking you later to Supreme Court jurisprudence, on the business nature of this undertaking. But at this point, I just want to bring to the facts that make this case distinctive. With respect to the Res Judicata counter-point, I think that if you look at the portions of Justice Fontana's ruling, he's quite correct that he says he takes the view that there is no, in this case, no basis for the first definition, which is definition (a) kept for gain. However, at Tab 6 page 7, I'd explain how there is any hope that res judicata might apply. This is a case involving people found in the casino, which is a separate offence. And a few days later, Mr. Turmel's case came before a different judge, Justice Lennox, who in the name of "comite," it's transcribed as "comedy" but it's really comity, decided to follow the ruling that had been given earlier and that's how arguably the same parties are involved even though in this case location and time and type of police investigation were different. At page 7, Justice Fontana refers to the five ways of proving a common gaming house. And notice the (a), (b) and (b) has four components. He then says: "On the evidence alleged by the Crown and accepting the testimony presented on behalf of the Crown by Mr. Turmel," who was an expert Crown witness in that case, "the operation in this occasion clearly does not fall into the first four categories. That is a place kept for gain or for playing games where the bank is kept ..." and he lists out simply the provisions.. refer to the definitions of 197(1) where common gaming house is defined. And it mentions being defined in 5 ways. That you only get 5 ways if you include (a) in there. And so, I'm in agreement that that section is mentioned. However, as Justice Wright in this case found, that's not a binding rule. It's an obiter comment on a provision that a judge finds inapplicable. And I think it would be stretching notions of autrefois acquit and res judicata to say that on the basis of those mentions, particularly when the judge finds another basis for liability, that the Appellant then has an "in rem" declaration that he can take to any situation and confront any police investigation and then go on and say that because of these comments by Judge Fontana, you no longer can prosecute. ABELLA: So you're saying ... that even though he mentions sections (a) and (b), notwithstanding his reference to those sections, the equivalent isn't based on what sections? It's open to another judge to say that there's no ..... SHAW: No. I'm saying that if you look at the judgment as a whole, the evidence that you relied on were the rules. And I agree that those rules on a piece of paper remained constant throughout the cases and I don't think that given that, in fact, we have different evidence here and a quote, relies a quote in which he mentions the "for-gain" provision not applying is prefaced by "on the evidence alleged by the Crown." I don't think that you can take that assertion and plug it into every situation in which Mr. Turmel may be, with the same rules, running a casino. ABELLA: How would the rules of res judicata be applied to a situation like this where someone who behaves in a certain way is brought before the court because of that behavior? Is acquitted? At what point would that person be entitled to rely on that court in a subsequent charge in the same factual circumstances? SHAW: I think that is an entirely legitimate point and the Appellant's first of two cases, both which I've included in the Book of Authorities, Rothman Realty in the Quebec Municipal Court and the other is Carrier out of the Quebec King's Bench Court sitting as a single judge. In the Rothman case, there's a rooming house that's being operated in a certain way contrary to municipal by-laws it is alleged and there is, two years prior to the charge that was at issue in Rothman, there had been an acquittal in the same house, the very same house is again charged and it is admitted in judgment that no facts had changed. An admission that I am now making before you. My admission is only that the rules have remained continuous. And in the Carrier case, it was a seditious libel case in which the same pamphlet again was and in those cases, there is an identity of the evidence before the court. In this case, there's not an identity. There is in fact a different Crown theory that is exclusively section (a) in this case and there is a different investigation. In this case, there was extensive accounting evidence and undercover evidence that was led about the way in which the Blackjack was played out. ABELLA: Tell me, why doesn't the Rothman case apply? Is it because you did it better the second time? And you did more research the second time? Is that.. SHAW: No. It's not better. It's simply different in the fact that in the initial cases, the allegations were not made that this was a commercial operation. And that the heart of the "for gain" provision has to be a business operation and here you have before you the type of accounting evidence that is required to prove that. And it was simply not adduced. ABELLA: So you're saying? "we're trying him again but this time we want to come at him from a different way." Is that allowed? SHAW: If he keeps committing the offence. I think that it's open to someone to come at it again. I mean, to take an egregious example, if someone keeps robbing a bank and uses the same way way to rob banks. ABELLA: How would someone who's been acquitted of, let's take the Rothman case, offering a rooming house without a permit. The subsequent charge was dismissed because the court said he did not xxxx a certificate. It was a different fact situation. They said: "nonetheless, xxxxxxxx you can't come back two years later." You're saying you can come back two years later, if you get a better accountant to show a set of records? You can never rely on acquittal. SHAW: No. You can rely on acquittal but you can't rely on, if you continue that behavior, the police not investigating other aspects of your behavior and then coming to court and charging you for those other aspects. And the other aspects in this case are, not only the accounting information but the undercover evidence as to the true rotation of the bank in Mr. Turmel's operations. So it's not just an improvement of the case, it's actually taking a different approach, too. The approach that's been taken in most of the cases and why this case is novel is simply to go on under the very easy (b) definition in which the proof of it is simply on the rules of the game. And Mr. Turmel is content to litigate that because he has rules of the game that may fall outside the four prohibited rules of (b). And it takes a lot more effort under (a) to prove a "kept for gain" because you have to look at the operation as a whole. The fact that (b) provides an easy method of Crown proof I don't think exempts you from a different approach. The "kept for "gain. A different standard of liability. ABELLA: Can we get our hands on the original charge, Mr. Shaw? SHAW: Yes. Appeal book, page 35. ABELLA: Is this the 89 charge? SHAW: No. We do not have the 89 charge. TURMEL: It is identically worded. AUSTIN: What you're saying if I understand it is that the first time around, they didn't charge, the Crown objective was not to demonstrate that he was running a business. SHAW: It was. The evidence, if you looked at the trial judge's findings of fact, the evidence was led on the effect of the rules. And those that is because it is essentially liability on the grounds of (b). And so you'll find throughout the findings of fact, extensive discussion of the rules. If I can be of assistance, if one were to take the view that there was issue estoppel, I think that you'd be granting a kind of "in rem" declaration that would prevent police from investigating further activities of Mr. Turmel and finding out if, in fact, there was evidence of related criminal activity? FINLAYSON: Is it a fact that the other counts listed SHAW: The other counts were withdrawn in that they involved betting and it was agreed that this was not betting, it was gaming. FINLAYSON: All right, this is at St. Laurent Blvd. Was he also charged at another premises? TURMEL: If I can help, I was charged with Baxter Rd. as well. It was over an 18 month period. FINLAYSON: Baxter Rd. Where is that shown? TURMEL: Isn't it shown in the indictment, Baxter Rd. and St. Laurent? SHAW: It is included by generic reference to "elsewhere in the Province of Ontario. So St. Laurent is specified and that's where the largest operation occurs. That's the 24-hour one. FINLAYSON: St. Laurent is the big one. SHAW: And Baxter is the smaller ancestor of this one. FINLAYSON: Okay, go ahead. SHAW: I don't think that just because a certain pattern of behavior is adopted that in one case may result in a provincial judgment in an Appellant's favor that it is not open to a different fact situation in a different location with a different police investigation, not necessarily a better investigation with better evidence but different evidence. To say that the individual can no longer be prosecuted... If there's no unfairness in that the person is again allowed to defend on the new basis of liability that is alleged against that person.. FINLAYSON: AUSTIN: This rooming house case. xxxxx an attempt to prosecute the same rooming house? SHAW: Exactly, and it was admitted there was no change. ???: I have some difficulty with the concept of the acquitted of keeping a common gaming house on xxxxxxxxxxxxxxxxxxxxxxxxxxxxx SHAW: I would have some trouble with that if the second prosecution was also on the basis of the rules, the evidence introduced was simply of the rules and that the rules had remained the same. Where it's a distinct ground of liability, namely the running a business, and you say that the earlier location was simply infringing the prohibitions on certain Blackjack rules, in the second location which is, in effect, run as an enterprise, and you lead expert evidence and accounting evidence and undercover evidence. I have difficulty in seeing how the earlier case grants you an exemption from prosecution that, I take it, as long as he would maintain his rules would be good for all time and all places. FINLAYSON: xxxxx criminal charges against Mr. Turmel. xxxx have to say "Well I xxxxx SHAW: It's particularly worrisome given that there are only four days between the two and one can only speculate whether the transcript would have been available that quickly. Furthermore, FINLAYSON: This strikes me as the beginning of a xxxx of a different xxx SHAW: I would agree and it's particularly critical on this issue because it's only through Judge Lennox that you can get to Judge Fontana because you'd have to operate a major operation in the law to say that the case between Her Majesty and Booth created res judicata, issue estoppel and autrefois acquit against Mr. Turmel unless you accept the somewhat tenuous link that Judge Lennox's reasons provide back to the Booth case. FINLAYSON: xxxxx SHAW: That's part of the problem if you go down the res judicata route is that you freeze in stone some pretty early and preliminary judgments and you'd have them stop the Court of Appeal from looking at the merits of this case on the definition, the statutory interpretation of "kept for gain," simply on those grounds. In effect, what you would be doing is, we would never get to them, at least with Mr. Turmel because if you granted on res judicata grounds, he could never be prosecuted provided he maintained the same rules. And that's exactly the sort of abstract approach to the case, to simply look at the rules and say they've been vetted by a provincial judge before, therefore they can no longer be questioned, it leaves the Crown without a remedy in this case, but more seriously, I think it means that the issue is never going to be tested. I would like to make two points on this question of calxxxx, an initial motion motion brought before Judge Wright to have the issue decided. He concluded that at the preliminary stage of a pre-trial motion, he would not rule on the res judicata point and when the trial was over, he does return to that point and considers anew after having heard all of the evidence in the case and if you go to his reasons for judgment at page 28 of the Appeal Book, you'll see why he considers that he is not bound by the earlier judgments and in particular, raises the point that Justice Finlayson raised that Booth involves different parties. I think that given in particular that this case rests on statutory interpretations and I'm now turning to that part of the argument but I think that it's relevant the transition from the other issue to be wary of entrenching, by res judicata ruling, an issue of statutory interpretation which this court is equally well-equipped as any other court to consider. And to somehow hold that earlier ruling by Judge Fontana in a different case at a different time with different facts than provided here. Particularly since it's a matter that I can say that had not been directly decided in the prior case. I suggested in my Factum why that is the case. Why in most of the prosecutions under section (a), it's always been indirect gains which has being looked at. You'd get parking and drinks, mostly drinks in bars and establishments, especially bars which attract customers also run a table of card games. I simply suggest that the reason there's been no case to date on this point is that most gaming games are secreted away and it's much easier to prove, as the volume of evidence in this case shows, it's much easier to prove an indirect gain such as the sale of a drink than to prove the betting handle and percentage theoretical and industry- wide gains, games and the actually playing of it, it takes a longer energy to do that and that's what's been done in this case. I think that as an initial starting point, you have to look at the plain words of the section and I think "kept for gain to which persons resort for the purpose of playing games" cannot, on any plain reading of it, but apply to this situation. Everybody knew that Mr. Turmel was involved in this for making a profit. In fact, FINLAYSON: He admits it. SHAW: And so I can't see how those aren't gains. I think that the distinction made between winnings later in the later sections gains here. They are synonymous as the dictionary suggests. I think that that distinction is too fine a one to be supported on the plainxxx in the xxxxthe dockxx. In particular, we even looked at the French version of that section which says, "un local tenu pour fins de gain:" and then the section in English says "the winnings" "les chances de gagner." And so it's the same term that's used in both subsections of the French version. FINLAYSON: winning table SHAW: If you kept it in a business-like manner, they would be infringing the section. If you hired employees and rented premises, you would be keeping it for gain. I don't know what else to call the sum of $600,000 a month that the Appellant has admitted to gaining in the course of the operation of the casino. And if I can take you to what Supreme Court jurisprudence there is on this point, tab 4, the DiPietro case, and that's a classic where the refreshments were sold and there's a card game going on on the side and ultimately it's dismissed because there's been no wagering, no proof of money being exchanged. However, there is reference made page 258 to the sections we're interested in. You'll see a sidebar passage, you'll see that the constituent elements of the offence are keeping a place for gain and then the two other requirements which were admitted to in this case. "The first two elements of the offence were present as the Appellants admitted that they are the proprietors of the Colorado Billiards and that they profit from this undertaking. You have the same admissions here but you have an admission of an enormous profit of the Appellant and that he was the keeper of Casino Turmel. And if I can take you to another Supreme Court case at Tab 3, it's a case involving (b) definitions but the court distinguishes and defines the (b) sections in contradistinction to the (a) section. And this is the "business-purpose" test I was bringing to your attention earlier. Page 707 You have to take the contextual approach to the provisions: "It is unreasonable in my opinion to import the business purpose test into the second definition in the face of the express words employed by Parliament." In the immediately preceding portion of the definition which imports the closely-related notion of "gain." That requirement has for many years been interpreted loosely as "kept for business purposes." And so the Supreme Court, albeit in obiter, is looking at how to define (b) and to do that, looks at the way that (a) is to be interpreted. And it says the key to looking at it is to look at whether it's kept for business. And that the notion that's most closely related to this purpose are the gains that are made. And to say that there was not a business in this case, that the reason that Mr. Turmel had so many Blackjack tables going on, the reason that the bank was not rotated in an equal fashion to the players, to say that that is not kept for gain, is not a business, flies in the face of the facts. The reason that there were so many Blackjack tables was that they were drawing a profit. He had a theoretical edge as the bank at 0.88%. The expert evidence led was that the industry average, because people don't all play at an optimum theoretical level, was a 15% drop. So for every dollar bet at the tables, there was 15 cents that went to the house. Now it's true he did rotate it and if you rotated it to a player, he could only bank against another player. And so the advantage that goes with being the bank facing several bets at once was diminished when you were a player and wanted to be the bank. You could only do it one hand at a time. And while the edge would have been the same, the fact that you could not have the advantage of betting against multiple hands meant that you couldn't draw a profit. And the Appellant was very jealous of the way those rules were exercised to keep the bank the predominant portion of the time in his control because that's how he made profits. Like any other businessman, he looked at his business, he said "where can I make the most money and if he could make the most money off retaining the bank at Blackjack. And all I can refer you to if you're looking at earlier cases involving Mr. Turmel, there's a Quebec Court decision in Hull which is also in my Book of Authorities at Tab 8. FINLAYSON: I think that "kept for business purposes" solves the problem of how the Poker game or Blackjack game is xxxxx SHAW: Exactly. I don't think that that sort of situation is going to kept for gain particularly if you're looking at the "business purpose" test that the Supreme Court has applied. And I also make the point earlier that Poker in itself is not profit-generating activity if there is no rake-off and that's why the evidence in this case played itself off on the Blackjack. This was very similar, the Quebec case I'm referring you to, and I accept the Appellant's translation of it without accepting his editorial notes, in which it was virtually the same evidence that was led. In the Hull case, there was evidence of more modest gains in that there were monthly revenues of around a $100,000 that were produced. And there was the same undercover evidence that was led in this case, namely that the bank did not rotate in an equal manner. And in effect, what the judge in this case concluded in convicting Mr. Turmel, it's unclear whether it was under (a) or (b), in convicting him said that this was a mere stratagem to get around the law. FINLAYSON: Is this a provincial court judge? SHAW: This is a, yes, the equivalent of a Provincial Court judge. But I think that the provincial court judge pleads into a Supreme Court jurisprudence which is on point. Also if I could take you to the Ontario Court of Appeal case at Tab 5 which is Irwin, which also in passing deals with whether direct gains are included. Irwin is a case where there was a tavern where they played Blackjack.. FINLAYSON: In Quebec, he's acquitted by this judge? SHAW: No. He was convicted in Hull. This was after the Ontario acquittals, the one acquittal for Mr. Turmel and the acquittal for Mr. Booth. He opened up a similar venue in Hull in which, it's actually much closer on the facts to this case in that we had undercover evidence about the rotation of the bank and furthermore, we had evidence of the type of gains that were being made in the business- like venture, not the more sort of theoretical to the rules that applied to section (b) or not that is found in the earlier cases. It resulted in conviction though I'm not relying on it for res judicata. FINLAYSON: I understand that xxx SHAW: Yes, I'm sorry. Irwin was at Tab 5. This is an Ontario Court of Appeal case written by Justice Goodman. It was a tavern in which there were Blackjack games arranged and there's no fee charge for entering. However, there were prizes that were to be allocated and in the end, it ends in acquittal, because none of the the prizes were delivered. The owner very prudently said he would not deliver any prizes to the winners of the Blackjack games until he ascertained whether or not it was legally possible for him to do that. In this case before you, the Appellant's xxx he did advise the Ottawa Police of his activities. The Ottawa police at no point conceded that what he was doing was legal and they said that they would investigate and that if he broke the law, they would charge him. In the Irwin case, there was no money so it resulted in acquittal. But at page 217, it will show you that common sense interpretation, direct gain must be included in the provision, it says: "It is common ground between the parties that the tavern business increased during the time in which the Blackjack game operated and that the proprietors of the tavern received at least an indirect gain as a result of the games.." There was evidence of everyone buying drinks. ".. if not a direct gain." I think in a similar vein, if I can take you to Tab 9, a Quebec Court of Appeal case page 4, there again, there was in a drinking establishment there were card games that were set up and you had to pay extra money to get pay your drinks if you were at the card tables. Probably that would be indirect gain in those cases. The Quebec Court of Appeal judgment of Juge Beauregard says: "Il n'est pas necessaire que le gain qu'espere faire l'exploitant provienne du jeu lui-meme." "It is not necessary that the gain that the merchant wants comes from the game itself." But I think that throughout the jurisprudence, you'll find an assumption that while indirect gains are sufficient, direct gains would be even better proof of liability under the section. So I disagree with the Appellant in the way he characterizes jurisprudence that only indirect gains are caught since throughout the cases, there's always a mention of the that that indirect gains will do, and of course, if you don't have direct gains. And that, to come back to my original submissions on the point, flows from the wording of the section itself and would require, in order to give the Appellant his appeal, would require you to read in "kept for indirect gain" into the provision. The Supreme Court in MacIntosh has said that courts have to be very wary about reading into provisions words that aren't there. Particularly on a plain reading. Mr. Turmel was gaining and was gaining substantially from a business that he was running. FINLAYSON: Those are your submissions? SHAW: Yes. FINLAYSON: Mr. Turmel, your reply? TURMEL: So does every Poker player in history who sits at home and plays Poker like Judge Austin pointed out. I sit at home, play Poker, I will make substantial gains and if you're going to call "winnings" "gains," then yeah, I'm breaking the law at the private game with Justice Austin there. If he invites me to his game, we're both guilty under this new interpretation. AUSTIN: Is my house kept it for gain. TURMEL: But the point is, it's the game that's kept for gain, for win. All the examples he chose had to do with things that you make out of keeping the business. "The business test," they keep saying. All these things (gaming house chart). Not once could he ever point to one guy who won a dollar out of a pot convicted under section (a), right? Not one case. Not a dollar ever won out of a game except for my case. I'm the first. Now I don't like bringing up Quebec because Quebec are "one-word" territory. In English, we've got "winnings" to distinguish from "gainings." I can distinguish between the two. The Crown doesn't want to but there are two words in the dictionary. And it just so happens that jurisprudence has treated those two words differently though the Crown thinks they're the same. "Winnings" have always been a (b), gainings have always been an (a). Well, guess what? Right after I win my case in 1989 with Judge Fontana who says: No gain, no win problems, no problem there, I went over to Quebec to try to enforce my right to play. I went over to "one-word" country. It's the same word for "gain" and "win" in French: "gain." They've only got one word. How can you expect a judge with one word to distinguish between two concepts. It's like trying to solve two equations with two unknowns. So I'm saying that he brings up that French Quebec problem and it's just not a fair at me. FINLAYSON: All right.. xxx TURMEL: That's right. And every case he ever brings up. Now you can call my profession of gambling a business if you wish. And you can say because he's in the business, this code section is against all businesses. Because everyone every charged under (a) has been a business. Well, he's right. But they were in the business of selling stuff, not the business of winning. Okay? FINLAYSON: All right, you're repeating your arguments. TURMEL: All right, so I'll go over the notes he made. First of all, he said there's no problem with the Poker. There's no problem with my winnings at the Poker. Now he said that a moment ago and at the beginning. It's only Blackjack he's worrying about. AUSTIN: He says it's neutral. TURMEL: It's neutral. If the point it's not, I just explained how I made half a unit bet off everybody at the table who plays with me. I make 5 bets an hour. I can make $40 grand a week if I can find a big enough game: $100/$200. $25/$50 like I had going regularly at the casino, that's $10 grand a week I could make playing Poker. Now he's saying I'm making $10 grand a week playing Blackjack too. Tsk. It's the $10 grand a week at Blackjack that's bad. But the $10 grand a week at Poker is neutral. FINLAYSON: You're really repeating yourself here. TURMEL: Oh. I thought that was kind of new. So I'm just saying that because he only wants to talk about winnings at one game is not... Well, I do win at the other game and he says that's okay. So why would my judge, who didn't distinguish, my judge said "playing cards and making money's the crime." He didn't say playing Blackjack, not Poker. He said playing cards in his decision. It was dominantly Blackjack. All right. He said "the location and the time were different." And that's the reason they don't have to use res judicata and abide by it. He mentioned the apartment house which was accused of being a rooming house, acquitted and charged again. The Crown said: Hey, it's a different time. And the judge said: I don't care. No change in operations, autrefois acquit applies even if it is different time. Carrier, this was a poster or a pamphlet which had been charged with being seditious at a time and place, acquitted, charged again at a later time and place of being a seditious poster again. The Crown argued: Hey, different time and place, like they're doing here with me. The judge said: I don't care. It has nothing to do with the fact that it's the same poster. Autrefois acquit. So in my case, the same thing applies. They're going to scream: Different time and place. Same rules. Same everything. And it's not that the rules of Blackjack are the same, it's the fact that nothing changed. The judge said that: Nothing changed between the two events. FINLAYSON: All right. We've got that. TURMEL: Okay. Three four times the Crown mentioned they didn't have evidence of the accounting in the Booth case. They didn't have the massive reams of evidence showing John Turmel's winnings. I mean, they counted all the chips at my table. They knew how much I was winning. They traced my bank accounts. They looked at the gains. And do you what the justice says in the James case, my number one case on the (a) section: "The notion of gain should not be embarrassed by the amount." If I'm making an illegal, if I'm selling only ice cream cones, that's guilty whether or not I'm selling a million ice cream cones or not. It's an important point that the Crown says: We have evidence now that Judge Fontana didn't see. The point is both cases had identical Statements of Agreed Facts with 19 agreed points. Okay? Not only was nothing different pursuant to the judge, the Statements of Facts were identical too. Now once I admitted that I was winning gambling, Fontana said: Well I don't need his bank records. And once I had admitted that: Here is now the and works. You play me, nobody else, 50:50. Mutual Exclusivity, a mathematical term very few lawyers understand. It means that as long as you're getting a fair game with me heads-on, it doesn't matter what I'm doing with anybody else. All this rules of Blackjack stuff, how much of an edge the house has, irrelevant because it's like the old days in the old West. The guy who had the bank also had the gun and he won 100% of the time. As long as you get a 50:50 chance to get the gun, it's a fair game. FINLAYSON: Don't get excited.xxxxxxx TURMEL: I'm trying to be quick, that's all. FINLAYSON: Try to keep your voice down. Do you have anything else to say? TURMEL: Well, other than the fact that all of this new evidence the Crown is talking about was admitted and rather, Judge Fontana didn't need to have my admissions proved, he admitted, he accepted them. And Judge Wright chose to let them introduce and be embarrassed by volumes about the amount and let them introduce information on the game, on the bank, all admitted. So yeah, they had new evidence but it was all in the original admissions and it was always the time, is my point. It might look like an impressive case but it's not. FINLAYSON: Where are the 19 points that are mentioned? TURMEL: It's in Book 2 of the Appeal Book Exhibits #3: Agreed Statement of Facts. They didn't include the 1989 version but it happens to be in the motion I made, I did a res judicata plea before this one here, that was last year and it's in there. So they are identical facts, nothing changed. Except evidence of those facts. Now the Crown says: Look it, if we can't use (a) to prosecute his winnings, we'll be left with no remedy. The point is that if I'm not breaking the law, so what? What kind of remedy does he want? He wants to be able to bust legal games? And if I can't get him with the (b) sections, I want a warped interpretation of (a)? So they don't deserve a remedy if I'm not breaking the law. The Booth case, he says: It was a different party so res judicata doesn't apply. I was the expert witness in the Booth case because I was running the game that got busted. And Judge Fontana said that: You, sir, the victim. He didn't charge a rake, he didn't charge a fee, he didn't do this, he didn't do that, he didn't do that to you, you weren't in a gaming house. No gaming house existed. So when Judge Lennox gets this ruling and he has to decide whether I was running a gaming house, he said: I can't contradict Judge Fontana who has found no gaming house there. He looked at all the found-ins. Saw none of them were disadvantaged, therefore not guilty. Now that is an important point. Judge Fontana and Judge Lennox upon whom I am basing my double-jeopardy pleas on, had the benefit of Judge Fontana's decision on the found-ins. Were any of the players victims of a gaming house? No. Judge Wright didn't have that benefit. They didn't charge any found-ins. They just charged me. So Judge Wright doesn't have anybody telling him: Gee, no one paid a rake, no paid a fee, no one did this, no one did that, he didn't sell anything, none of the gaming house sections apply. Judge Wright just has accounting. And he goes: FINLAYSON: You're reading xxxx TURMEL: All right, well, I'm just trying to make sure everything's covered because he brought them up again. How do I know you're not listening to him? How do I know you're not believing him. That's why I'm trying to shoot down what he repeated. FINLAYSON: Settle down. Are there any more points you'd like to deal with? TURMEL: At one point, he said that it's easier to prove section (a) sales than clandestine hidden gambling profits. And later on, he said: section (b) makes it easier to prove the gambling profits. So I want to point out that contradiction. He said: It's easier to prove (a)" and in the same paragraph said "it's easier to prove (b)." He says "the plain words must apply." And again, that's going back with the dictionary versus my 50 years of case law. He says that wins and gains should be synonymous as the dictionary suggests. And as case law doesn't. He pointed out that the French was even better, they've got the same word for both things. FINLAYSON: You're going over the same things. TURMEL: I've only got 5 more lines. FINLAYSON: Well argue them. TURMEL: Okay. Both the cases DiPietro and Rockert were acquittals and Rockert was running a Blackjack game. So now we've got a judge telling us it doesn't matter, it it's winnings, it's illegal. Well, there's proof that Blackjack winnings are not illegal, there are legal ways of doing it. And I've found one. He kept saying the bank didn't rotate equally. All three judges said it did, between you and me. And the fact that you couldn't bank another guy had no effect on your game with me. He said there's an advantage in facing several players that I had no one else had. Key point. That is true. I would get to be the bank against five guys but they could only bank me heads on. And it's like I flip coins with five guys. The Crown might want to imply that I gain an advantage by flipping coins with five guys, I say that how many guys I flip coins with has no effect on advantage, it's got to do with the coin. So the fact I was giving you a fair game and I was playing with five guys, they're all getting fair games. Point by Justice Austin about Poker in the home... FINLAYSON: We heard that. Look, we're running out of time.. TURMEL: And finally, the undercover evidence that a rotation of the bank that he didn't think was fair was admitted in the statement of facts. The Irwin case he brought up was about a tavern business which had increased and he wasn't involved in any direct gain at all. So another case of gains from holding the place to which games show up. And if the game's not there, those gains aren't illegal and that's the kind of gains section (a) deals with. Only indirect. So, the grammar would be wrong if it dealt with winnings. That's all I have. FINLAYSON: We'll reserve on that. -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!gts!whome!infoshare!n2ott.istar!ott.istar!istar.net!n3ott.istar!news.synapse.net!news.flora.ottawa.on.ca!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 12:24:11 1996 Xref: elastic can.general:59306 can.legal:10743 can.politics:92298 Path: elastic!lethe!gts!whome!infoshare!n2ott.istar!ott.istar!istar.net!n3ott.istar!news.synapse.net!news.flora.ottawa.on.ca!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Robin Hood Gaming House Appeal Analysis Date: 18 Sep 1996 13:31:33 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 1386 Sender: bc726@freenet5.carleton.ca (John Turmel) Message-ID: <51otjl$o8o@freenet-news.carleton.ca> NNTP-Posting-Host: freenet5.carleton.ca TURMEL: "Project Robin Hood" Casino Turmel Appeal Analysis This is the case of a card room acquitted of being a gaming house and with no change in the operations, was charged once again with the safe offence. I'm going to comment on some of the more revealing comments from the Casino Turmel appeal: : : ONTARIO COURT OF APPEAL : Justices Finlayson, Abella, Austin : R. v. Turmel, keeping common gaming house :For the Appellant: John Turmel :For the Crown: Trevor Shaw : I explained that as a professional card player for 22 years who had had my game acquitted by Judges Fontana and Lennox of being illegal in 1989. The Crown did not appeal. I set up larger and larger games and was hoping to make a million a year just playing Poker. I mentioned that upon finding out that police were just going to re-raid me anyway, rather than suffer physical imprisonment anew, I applied to the Ontario Court of Appeal to grant an extension of time for the Crown to file an appeal of my acquittal. Presiding Justice Finlayson explained I couldn't start the Crown's appeal against my acquittal, I could only start an appeal against a conviction. And the Crown did not want to appeal Judges Fontana and Lennox because they had already made plans to shut me down and re-try the same charges. Three months later, they raided again. : ABELLA: Let me stop you for a moment, Mr. Turmel. I just want :be clear that the place that was raided in 1993 was exactly the place :and operation that resulted in your acquittal in 1989? : TURMEL: Well, it was a different location. But the judge himself :said there was no evidence of any change in the operations at all. : Here, I should have also mentioned that the two Statements of 19 Agreed Facts were identically worded and why I would have been so stupid as to change anything? : ABELLA: The only change was location? : TURMEL: That. And time. It was a different year. : ABELLA: Right. : TURMEL: And of course, you'll note in the Crown's factum, the :only argument they use against my getting the protection of issue :estoppel, autrefois acquit and res judicata is that they were different :times and places. Everything else was the same. I mentioned that you can expect to lose half a bet an hour to me whether you're playing Poker or Blackjack but all the judges ruled you were losing it to me fairly and legally. I asked: : So, two issues, whether or not the second judge's conviction :was correct and the first judge's acquittal wrong, or vice versa. : And whether the second judge had any right to hear the same :evidence at second time at all. Since I knew they could have no evidence of anything new as I had not been so stupid as to change anything, I was offering the Crown a chance to appeal. But they needed to shut me down while we were fighting and appealing my acquittals meant I'd be open and with Fontana's decision in my quiver and they'd be on the defensive. They chose to ignore the autrefois acquit, res judicata and issue estoppel protections supposedly afforded by my previous acquittal to gain the offensive by throwing me in jail again and approaching the Court of Appeal with the Wright transcript while the Fontana transcript was not on the agenda. : And if you'll note on Point 23 of the Crown's factum, they say :that: Even if we have no right to be here on issue estoppel, res judicata :and autrefois acquit, even if everything had been dealt with by Judge :Fontana so that we have no right to do it a second time, do it anyway. I parsed Judge Fontana's ruling to show that he did not fail to rule on section (a) but had actually ruled on it four times. After the break, I continued that Fontana had dealt with 5 sections and pointed out how even Judge Wright had initially though so. I pointed out all jurisprudence had section (a) dealing with indirect gains and section (b) with direct gains from the games and that it was the court who was making this a test case. I pointed out my judge said making a living playing cards at home was now keeping my home for gain and pointed out that Justice Labrosse had said: : There's no difference between playing your home and playing in :a licensed establishment." Judge Austin pointed out that it was not part of the endorsement but I noted that he had said it. Finally, I asked for some mercy on the sentencing conditions on this Crown test case if they don't grant my appeal. : FINLAYSON: Why were you running this game? : TURMEL: Absolutely, to make winnings, not gainings. I should have mentioned that I was spending the winnings so much on helping the poor that the police had called the raid "Project Robin Hood." I seemed to have difficulty getting the court to see the difference keeping the place for win and keeping the place for gain and luckily I have brought along my chart. :CHART: : /\ : / \ : / \ : / PLACE \ : / KEPT FOR GAIN \ : / TO WHICH \ : / PERSONS RESORT FOR \ : | THE PURPOSE OF | : | | : | -------------- | : | | | | : | | GAMBLING | | : | | TABLE | | : |--------------------------| :$ Valet Parking Video Games $ : + G.S.T. :$ Entry Fee Photos $ : :$ Coat-check Drink $ Food $ Smoke $ : I pointed out that gain was possible without the game being there and only became illegal when the game arrived. I pointed out that win was not possible without the game being there and only became illegal when gain was being derived indirectly by the house. I hope they can make the distinction between the gain out of keeping the house and the win out of keeping the game. I stressed that Judge Wright had stated that there was no evidence of any change in the operations and that he had no right to be considering the same facts again. I had to explain to Judge Austin that not being able to bank the others didn't matter to the fairness of the game with me. :CROWN TREVOR SHAW: : SHAW: Thank you. I think Mr. Turmel's submission is correct. :The rules of Blackjack may not have changed from case to case. The :fact is it's very important the way the rules were carried out. And :so it's not just a technical objection to the res judicata point that :there were different times and different locations. It's also that :the evidence led was different. There was undercover evidence led :to point out the real nature of the rotation of the bank. Again, this is arguing that there was something wrong with the rotation of the bank even though Judges Fontana, Lennox and Wright found that the opportunity to rotate had been sufficient. The fact is that both cases had the same Statement of 19 Agreed Facts and as the Crown admitted, there were no facts in dispute. If there were no facts in dispute, why was there all this evidence of facts already admitted? :And there :was both accounting and undercover evidence led concerning the volume :of transactions and most of this evidence concerned the game of Blackjack, :simply because the Poker itself, with no rake-off, would be neutral. : As I keep pointing out, a judge once said "the notion of gain should not be embarrassed by the amount." Here again we have the Crown getting into the amount. That the Crown called the million a year I expected to win at Poker was neutral and wasn't part of the objection of the Crown fails to take into account that all three judges have already ruled that the 50:50 U-may-bank rule made the million I expected to win at the Blackjack neutral too. That is the Crown's main thesis: The Poker winnings were neutral and not subject to the section but the Blackjack winnings were not neutral because of the bank rotation and were subject to the section. : And so for the Appellant to be before you and say that this judgment :makes illegal Poker games at home, I don't think is the point because :the evidence that was led clearly that it was the Appellant's dominant :position as bank at Blackjack games that brought in revenues. You cannot say that it was the dominant position as the bank that gave me my hourly half-a-bet winning rate over most players at Blackjack. It is the fact I am a card counter and most players are not. And the Appellant's dominant skill at Poker brought in hourly half-a-bet revenues too. :And :it was from Blackjack that the Appellant was able to at the end of :his day to net approximately a thousand dollars a day from the operation :of these casinos. And it was from the Blackjack that the Appellant was able to at the end of his day to net approximately two thousand dollars a day from the play at the $25/$50 Poker game. : Also I think if you're thinking about the person having the week- :end game of Poker, you should also ask yourself whether you'd be having :that in a large locale that was at a weekly rent of $2,500? Would :you have over 100 employees working for you? Whether you as the holder :of that game in your living room would be operating with a large number :of agents in the running of it? Others might not need large staff and space but if providing tables and staff for six other poker tables helps me keep my high- stakes table full, there is good reason for me to provide free cards for large groups of people. : And I think that all that information is legally significant :when you look at whether it was kept for gain or not. And while there :is perhaps not a case right on point, I'll be taking you later to :Supreme Court jurisprudence, on the business nature of this undertaking. :But at this point, I just want to bring to the facts that make this :case distinctive. : With respect to the Res Judicata counter-point, I think that :if you look at the portions of Justice Fontana's ruling, he's quite :correct that he says he takes the view that there is no, in this case, :no basis for the first definition, which is definition (a) kept for :gain. : CROWN ADMITS FONTANA DID SECTION (A)! : However, at Tab 6 page 7, I'd explain how there is any hope that :res judicata might apply. This is a case involving people found in :the casino, which is a separate offence. And a few days later, Mr. :Turmel's case came before a different judge, Justice Lennox, who in :the name of "comite," it's transcribed as "comedy" but it's really :comity, decided to follow the ruling that had been given earlier and :that's how arguably the same parties are involved even though in this :case location and time and type of police investigation were different. : And the fact that Justice Lennox did follow the Fontana decision based on the same facts and made the same ruling. Judge Lennox's ruling on my facts of the same gaming house was identical to the found-ins facts of the same gaming house. The Crown has no right to impugn the acquittal by Judge Lennox as lacking consideration of the facts. Judge Lennox was looking into whether the winnings of the keeper were a violation of the gaming house laws. Judge Fontana was looking into whether the losings of the found-ins were a violation of the gaming house laws. It can only have been of benefit to Judge Lennox to have Judge Fontana rule on the losings before making his decision on the keeper's winnings. In the present case, no found-ins were charged and Judge Wright was not going to have the benefit of any judgment on the found-ins losings and would just solely from the point of view of the keeper's winnings. : At page 7, Justice Fontana refers to the five ways of proving : AGAIN, THE CROWN ADMITS FONTANA DID MENTION ALL FIVE WAYS :a common gaming house. And notice the (a), (b) and (b) has four components. :He then says: : "On the evidence alleged by the Crown and accepting the testimony :presented on behalf of the Crown by Mr. Turmel," who was an expert :Crown witness in that case, "the operation in this occasion clearly :does not fall into the first four categories. That is a place kept :for gain or for playing games where the bank is kept ..." and he lists :out simply the provisions.. refer to the definitions of 197(1) where :common gaming house is defined. And it mentions being defined in 5 :ways. That you only get 5 ways if you include (a) in there. : THAT'S RIGHT. FONTANA INCLUDED (A) TO GET 5 WAYS : And so, I'm in agreement that that section is mentioned. : So the Crown had no right to charge me a second time. Why didn't he give up? :However, as Justice Wright in this case found, that's not a binding :rule. : No. That's not what Judge Wright said. He said that Judge Fontana had not done (a) and that's why he could be trying me on (a). ;It's :an obiter comment on a provision that a judge finds inapplicable. : It's not a mere comment. Judge Fontana did cite it four times. :And I think it would be stretching notions of autrefois acquit and :res judicata to say that on the basis of those mentions, particularly :when the judge finds another basis for liability, that the Appellant :then has an "in rem" declaration that he can take to any situation :and confront any police investigation and then go on and say that :because of these comments by Judge Fontana, you no longer can prosecute. : That's exactly what I'm saying. Once Judge Fontana rules that I'm not violating any of the 5 gaming house definitions, I did take that as an "in rem" declaration that I could take to any situation and confront any police investigation and then go on and say that because of these comments in the ruling of Judge Fontana, you can no longer prosecute. Once a judge has ruled that my activity is not breaking the law, you can no longer prosecute. That's what this is all about. Otherwise, an acquittal would be no protection at all. : ABELLA: So you're saying ... that even though he mentions sections :(a) and (b), notwithstanding his reference to those sections, the :equivalent isn't based on what sections? It's open to another judge :to say that there's no autrefois acquit? : I'm glad to hear Justice Abella accept that "he mentions sections (a) and (b)." : SHAW: No. I'm saying that if you look at the judgment as a whole, :the evidence that you relied on were the rules. : That's not complete. The evidence relied on were the rules and the admitted facts that there were refreshments but there was no charge for them. :And I agree that those :rules on a piece of paper remained constant throughout the cases and :I don't think that given that, in fact, we have different evidence :here and a quote, relies a quote in which he mentions the "for-gain" :provision not applying is prefaced by "on the evidence alleged by :the Crown." I don't think that you can take that assertion and plug :it into every situation in which Mr. Turmel may be, with the same :rules, running a casino. : The whole point is that you can take that assertion and plug itinto every situation in which I'd be in, with the same rules, running a casino. Why would I change a successful formula? : ABELLA: How would the rules of res judicata be applied to a :situation like this where someone who behaves in a certain way is :brought before the court because of that behavior? Is acquitted? At :what point would that person be entitled to rely on that court in a :subsequent charge in the same factual set of circumstances? : Great question. How many times do I have to be acquitted before I can rely on the acquittal in a subsequent charge? This lady seems to be aware of the double-jeopardy implications. : SHAW: I think that is an entirely legitimate point and the Appellant's :first of two cases, both which I've included in the Book of Authorities, :Rothman Realty in the Quebec Municipal Court and the other is Carrier :out of the Quebec King's Bench Court sitting as a single judge. : Rothman's and Carrier are my two perfect cases for autrefois acquit. (Autrefois acquit is French for "formerly acquitted." I wonder if this is some kind of reverse strategy where the Crown makes my "entirely legitimate point" for me and then somehow argues against it. : In the Rothman case, there's a rooming house that's being operated :in a certain way contrary to municipal by-laws it is alleged and there :is, two years prior to the charge that was at issue in Rothman, there :had been an acquittal in the same house, the very same house is again :charged and it is admitted in judgment that no facts had changed. :An admission that I am now making before you. My admission is only :that the rules have remained continuous. : He didn't put this very well. It was actually an apartment house charged and acquitted of being a rooming house and charged two years later with again being an illegal rooming house though there had been no evidence of any change in the operations. Autrefois acquit applied : And in the Carrier case, it was a seditious libel case in which :the same pamphlet again was and in those cases, there is an identity :of the evidence before the court. : This one is hardly explained but it's the pamphlet charged and acquitted with being acquitted and later charged with being seditious again. It was a different offence on a different date at a different place but the court ruled autrefois acquit applied. In my case the Crown is arguing that autrefois acquit doesn't apply because it's a different date and place and they produced both decisions where it was ruled that date and place were irrelevant. :In this case, there's not an identity. :There is in fact a different Crown theory that is exclusively section :(a) in this case : As if the fact that they're concentrating totally on (a) this time when the last time they spent time on both (a) and (b) makes a difference? :and there is a different investigation. In this case, :there was extensive accounting evidence and undercover evidence that :was led about the way in which the Blackjack was played out. : So they base their new charge on evidence of facts that have been admitted and accounting of results that are irrelevant. : ABELLA: Tell me, why doesn't the Rothman case apply? Is it because :you did it better the second time? And you did more research the second :time? Is that.. : It is a good question. Technically, the rules say that if the Fontana decision is a mistake, then some sort of appeal of it must be made. But if the Fontana decision is right, then only changes in legislation may be made. : SHAW: No. It's not better. It's simply different in the fact :that in the initial cases, the allegations were not made that this :was a commercial operation. : Incorrect. The Bayshore Hotel game was admitted as a professional operation. The Statements of Agreed Facts were identical so only the Crown's interpretation has changed. :And that the heart of the "for gain" provision :has to be a business operation and here you have before you the type :of accounting evidence that is required to prove that. And it was :simply not adduced. ; They're trying to make the business of gaming the crime even though professional gamblers have been in the business of gaming for years and they've have not outlawed the business of gaming like they outlawed the business of betting. : ABELLA: So you're saying? "we're trying him again but this time :we want to come at him from a different way." Is that allowed? : That's the whole point of all these double-jeopardy pleas. It is not allowed and you can fight it with autrefois acquit (formerly acquitted), issue estoppel (stop arguing, its' been decided) and res judicata (the matter has been decided.) : SHAW: If he keeps committing the offence. I think that it's open :to someone to come at it again. : That's the whole point of these pleas based on acquittals. I'm don't keep committing the offence when it's been judged not to be an offence. This is unfair. They take offence at what has developed and choose to ignore that the activity has been adjudged not to violate any of the five sections of the gaming house laws. :I mean, to take an egregious example, :if someone keeps robbing a bank and uses the same way way to rob banks. : Unfair example. He's talking about a crime of doing something where date and place are very relevant to the autrefois acquit. We're talking about the crime of being something where date and place are irrelevant. : ABELLA: How would someone who's been acquitted of, let's take :the Rothman case, offering a rooming house without a permit. The subsequent :charge was dismissed because the court said he did not xxxx a certificate. :It was a different fact situation. They said: : "nonetheless, the court ruled you can't come back two years :later." You're saying you can come back two years later, if you get a :better accountant to show a set of records? You can never rely on :acquittal. : : SHAW: No. You can rely on acquittal but you can't rely on, if :you continue that behavior, the police not investigating other aspects :of your behavior and then coming to court and charging you for those :other aspects. : You can rely on the acquittal but you cannot rely on it if you continue that acquitted behaviour. It assumes that one of the aspects has been left unchecked by the first court. This has been the issue of previous debate and everybody now agrees that Fontana did deal with all five aspects of what is a gaming house. :And the other aspects in this case are, not only the :accounting information but the undercover evidence as to the true :rotation of the bank in Mr. Turmel's operations. : Here he's back to the rotation of the bank not realizing that every judge has so far ruled that the fair opportunity provided was sufficient. : So it's not just an improvement of the case, it's actually taking :a different approach, too. : Actually, it happens to be the identical approach in 1989. The issue was whether two man rotation where I could play with everyone and everyone could only play with me was fair. Judge Fontana spent most of his time on this question and ruled that with 50:50 chance to the bank, how many people I was fliping coins with had no effect on your chances at flipping coins with me. :The approach that's been taken in most :of the cases and why this case is novel is simply to go on under the :very easy (b) definition in which the proof of it is simply on the :rules of the game. And Mr. Turmel is content to litigate that because :he has rules of the game that may fall outside the four prohibited :rules of (b). : So even though he keeps inferring that there was something wrong with the bank rotation, section (b1) and (b4), here he admits that my rules fall outside of the rules of (b). This is what's unique about my case. The Crown admits that my winnings don't violate illegal (b) gambling activities while continuing to infer I had an unfair banking edge which has been repeatedly denied. Now I find myself explaining the bank rotation to the court which I shouldn't have to be doing. :And it takes a lot more effort under (a) to prove a :"kept for gain" because you have to look at the operation as a whole. : No. You don't have to look at the gambling operation at all since gain is derived indirectly from sales by the house. All this accounting of direct winnings out of the game have nothing to do with any indirect gain from sales out of keeping the house. Another point of confusion. They must figure that if they do a major accounting of the winnings, that will somehow infer commerciality without realizing that commerciality of direct gambling is not the crime, it's commerciality of indirect gain from sales around the gambling that's the crime. Because I chose to keep good books and pay my taxes is no reason to infer that the stigma of commercial indirect gain should apply to direct win out of the game. And the court warned that it does not take a lot of effort to prove indirect gain. Just show a sales slip and do not embarass the notion of gain by discussion of the amount. :The fact that (b) provides an easy method of Crown proof I don't think :exempts you from a different approach. The "kept for "gain. A different :standard of liability. : ABELLA: Can we get our hands on the original charge, Mr. Shaw? : SHAW: Yes. Appeal book, page 35. : ABELLA: Is this the 89 charge? : SHAW: No. We do not have the 89 charge. : Isn't that fascinating. Here I've always said that the Crown had no right to be by-passing the Fontana appeal and the judge notes that it's really the most important thing that we need. Instead of our being before the court with a transcript of an acquittal, the Crown has left that transcript behind and has approached the Court of Appeal with the transcript of a later conviction. The fact that the Justice asked for the 1989 charge signifies that it is the Fontana trial transcript that should have been under their consideration first and they have managed to skip over him completely. : TURMEL: It is identically worded. : AUSTIN: What you're saying if I understand it is that the first :time around, they didn't charge, the Crown objective was not to demonstrate :that he was running a business. : Since the business of gaming is not a crime, no, the Crown objective as not to demonstrate that I was running a business. It was to demonstrate that I was running a gaming house. : SHAW: It was. The evidence, if you looked at the trial judge's :findings of fact, the evidence was led on the effect of the rules. :And those that is because it is essentially liability on the grounds :of (b). And so you'll find throughout the findings of fact, extensive :discussion of the rules. : And he keeps forgetting Judge Fontana's consideration of evidence of no refreshment sales. This was clearly not evidence related to the (b) gaming, it had to be related only to the remaining (a) gain. Sure, he spent most of his time on the rules and mutual exclusivity but it does not detract from his having spent time on the evidence of indirect gain and his finding that there was none. Even Judge Wright ruled that there was no indirect gain though he was not considering direct win as possible indirect gain. : If I can be of assistance, if one were to take the view that :there was issue estoppel, I think that you'd be granting a kind of :"in rem" declaration that would prevent police from investigating :further activities of Mr. Turmel and finding out if, in fact, there :was evidence of related criminal activity? : If there is issue estoppel, I should be granted a kind of "in rem" declaration that would protect me freom police investigations as long as I don't change anything. I don't mind the police investigating to their heart's content. Our doors were always open. If they find evidence of criminal activity, I should be charged. But if they only find evidence of the same activity, yes, I should have the "in rem" protection to play without threat of state interference. : FINLAYSON: Is it a fact that the other counts listed : SHAW: The other counts were withdrawn in that they involved betting :and it was agreed that this was not betting, it was gaming. : That's what got these clowns, sorry, Crowns, in this obvious double-jeopardy difficulty in the first place. In 1988, it was Ottawa Crown Attorney Curt Flanagan who chose to charge my card game with being both a gaming house and a betting house. Case law says that if you influence the result, like cards, it's gaming but if you don't, like horse racing, it's betting. You don't book bets with cards. Only after the gaming house charge had been thrown out did the Crown withdraw the betting house charge In 1993, when they were desperately looking for some new way to charge me, Flanagan chose to inflate the indictment with two new bookmaking charges, "being in the business of betting" and "controlling monies from betting" added to the improper "keeping a betting house" and the proper but previously-decided "keeping a gaming house." I couldn't use autrefois acquit, issue estoppel and res judicata on the three bookmaking counts and right up until the day of the trial, it looked like the court was going to be dealing with four counts even though I had made motion after motion trying to quash the betting house charges on the grounds that there was only card playing going on. Then on the day before the trial, the Crown announced that they were giving up and withdrawing all three of the betting house charges and going only on the gaming house charge. I thought this was a strategic win on my part since their goal had to be to confuse the judge into believing there was something new being alleged. But we were now we're left with a perfect autrefois acquit. The 1993 charges of keeping a gaming house were identical to the 1988 charges. The 1993 19 Agreed Facts were identical to the 1988 19 Facts. The congruence was overwhelming. When the second judge looks at the Agreed Facts and admits that there is no evidence of change from 1988, he has no right to be coming to a different conclusion. : SHAW: I don't think that just because a certain pattern of behavior :is adopted that in one case may result in a provincial judgment in :an Appellant's favor that it is not open to a different fact situation : He's saying that there might be different fact situations even if a certain pattern of behavior is adopted. There can't be a different fact situation if a certain pattern of behavior is adopted and not changed. This is an elementary error. Once a pattern is set, you can't say that it's open to a different fact situation. :in a different location with a different police investigation, not :necessarily a better investigation with better evidence but different :evidence. : Different evidence of the same admitted factual situation. :To say that the individual can no longer be prosecuted... : Yes. To say that my acquittal means that I can no longer be prosecuted if I don't change my behavior. :If there's no unfairness in that the person is again allowed to defend :on the new basis of liability that is alleged against that person.. : It's all fair because I can still redefend myself. Ignoring that they skipped over Fontana's judgment into the higher court, it would seem that I should be grateful to be allowed to redefend myself even though the court is considering not the transcript of the trial of my acquittal but the transcript of the trial of my next conviction. FINLAYSON: AUSTIN: This rooming house case. xxxxx an attempt :to prosecute the same rooming house? : SHAW: Exactly, and it was admitted there was no change. : And the court ruled that you couldn't charge that rooming house a second time. You had to leave it alone until something changed, including legislation. : ???: I have some difficulty with the concept of the acquitted :of keeping a common gaming house on xxxxxxxxxxxxxxxxxxxxxxxxxxxxx : SHAW: I would have some trouble with that if the second prosecution :was also on the basis of the rules, the evidence introduced was simply :of the rules and that the rules had remained the same. : Again, he's making the assumption that no evidence of indirect gain was led despite Fontana's looking into refreshment sales. :Where it's :a distinct ground of liability, namely the running a business, and :you say that the earlier location was simply infringing the prohibitions :on certain Blackjack rules, in the second location which is, in effect, :run as an enterprise, and you lead expert evidence and accounting :evidence and undercover evidence. : The charge of being in the business of betting was withdrawn and the charge of being in the business of gaming was not laid because there is no charge for being in the business of gaming. So evidence of my running my business of gaming has nothing to do with my running a business for indirect gain. :I have difficulty in seeing how :the earlier case grants you an exemption from prosecution that, I :take it, as long as he would maintain his rules would be good for :all time and all places. : That's right. The earlier case, as long as it remains not overturned, should grant me an exemption from prosecution that, as long as I would maintain my rules, would be good for all time and all places. : FINLAYSON: xxxxx criminal charges against Mr. Turmel. xxxx have :to say "Well I xxxxx : SHAW: It's particularly worrisome given that there are only four :days between the two and one can only speculate whether the transcript :would have been available that quickly. Furthermore, : FINLAYSON: This strikes me as the beginning of a xxxx of a different :xxx : SHAW: I would agree and it's particularly critical on this issue :because it's only through Judge Lennox that you can get to Judge Fontana :because you'd have to operate a major operation in the law to say :that the case between Her Majesty and Booth created res judicata, :issue estoppel and autrefois acquit against Mr. Turmel unless you :accept the somewhat tenuous link that Judge Lennox's reasons provide :back to the Booth case. : Again the Crown is inferring that the Fontana decision should not apply to me simply because it was followed by my Judge Lennox. Both judges saw the same evidence, judge Fontana looking at the found-ins losings and Judge Lennox looking at my winnings. When Fontana ruled that the losings weren't illegal, Lennox had to rule that the winnings were not either. By not charging any found-ins in 1993, the Crown has prevented any consideration of the legality of the found-ins losings in their deliberations on the keepers winnings. They couldn't have another judge ruling "no illegal losses over here" when they needed a judge to rule "Turmel made illegal wins over here." So the found-ins losings angle has been omitted until this week due to a fascinating stroke of fortune. You might remember in my Factum where I mentioned how Gene Lo had been charged with being found-in a game where Dave Booth had been charged with keeping. Gene Lo and Tasso Paliovarkas had been found-ins at the Bayshore Hotel and been acquitted. Gene Lo could argue autrefois acquit. I represented Gene and 8 other found-ins but the Crown eventually gave up and withdrew the charges before they could get to court. Guess who should have recently been busted at Blackjack game where they were scrupulously following Turmel-style rules to the point where each player banked at least once every shoe? Tasso Paliovarkas was charged with being a found-in at a game hosted by Ray Turmel who was also acquitted at the Bayshore game and could plead autrefois acquit. On Tuesday June 4, he fired his lawyer and appointed me agent for his Defence and I'm going to show him how to plead his autrefois acquit right to the top. Now there is going to be a chance to look at whether any of the losings at Turmel-style Blackjack or Poker are illegal again to help determine whether any of the winnings are illegal too. There'll be no confusing accounting evidence as they try to prove that there was a gaming house. They're going to have to stick to the five sections and show that he was somehow victimized. And of course, without volumes of immaterial evidence, the issues will remain very clear. So I'll soon post the Tasso case results as the Quebec courts provide audio-tape copies of their proceedings! : FINLAYSON: xxxxx : SHAW: That's part of the problem if you go down the res judicata :route is that you freeze in stone some pretty early and preliminary :judgments and you'd have them stop the Court of Appeal from looking :at the merits of this case on the definition, the statutory interpretation :of "kept for gain," simply on those grounds. : The Crown wants the Court of Appeal go to into the new interpretation even if they're here on the wrong transcript. : In effect, what you would be doing is, we would never get to :them, at least with Mr. Turmel because if you granted on res judicata :grounds, he could never be prosecuted provided he maintained the same :rules. : Again, that's what I expect my acquittal to mean as long as I don't change anything in the operations of my games. :And that's exactly the sort of abstract approach to the case, :to simply look at the rules and say they've been vetted by a provincial :judge before, therefore they can no longer be questioned, it leaves :the Crown without a remedy in this case, but more seriously, I think :it means that the issue is never going to be tested. : The Crown is now pleading that it is being left with no remedy when it turned down the right remedy of a Fontana appeal when it was offered. And they can still appeal the Fontana decision any time they want though I don't know how the Court of Appeal could get it into its jurisdiction until the Crown files an appeal. That's the problem here. The Crown has found a way of overturning Fontana's decision without dealing with Fontana's decision. : I would like to make two points on this question of calxxxx, :an initial motion motion brought before Judge Wright to have the issue :decided. He concluded that at the preliminary stage of a pre-trial :motion, he would not rule on the res judicata point and when the trial :was over, he does return to that point and considers anew after having :heard all of the evidence in the case and if you go to his reasons :for judgment at page 28 of the Appeal Book, you'll see why he considers :that he is not bound by the earlier judgments and in particular, raises :the point that Justice Finlayson raised that Booth involves different :parties. : Again, this is a silly reason. Fontana's decision was for the found-in Booth and Lennox's decision was for the keeper Turmel. To say that because Judge Fontana wrote the decision on the same facts that Judge Lennox's adoption of the same reasons for acquittal somehow weakens the acquittal for keeping. Judge Lennox saw exactly the same 19 Agreed Facts which Judge Wright did and his judgment does have bearing on the contrary decision Judge Wright made on that same Statement of 19 Agreed Facts. Not Judge Fontana. The Crown wrote the Statement of Agreed Facts for the Lennox case after the Fontana case had been heard and reserved on. Judge Fontana is not the judge who saw the 19 Agreed Facts Judge Wright saw. Judge Lennox did. Judge Fontana dealt with the found-ins losings and did not deal with the keeper's winnings. Judge Lennox did just as Judge Wright did. : I think that given in particular that this case rests on statutory :interpretations and I'm now turning to that part of the argument but : That's my whole point. Nothing changed but the interpretation of the statute. And that should have been done by way of appealing Fontana, not by charging me again. :I think that it's relevant the transition from the other issue to :be wary of entrenching, by res judicata ruling, an issue of statutory :interpretation which this court is equally well-equipped as any other :court to consider. And to somehow hold that earlier ruling by Judge :Fontana in a different case at a different time with different facts :than provided here. Particularly since it's a matter that I can say :that had not been directly decided in the prior case. : Be wary of entrenching Fontana's ruling? Fontana's ruling isn't even before the court to be entrenched. If the Crown had done it right, it could be arguing not to entrench the Fontana decision but since they've conveniently found a way to leave it behind, it gets to argue not to entrench the Fontana decision which isn't even under appeal. : I suggested in my Factum why that is the case. Why in most of :the prosecutions under section (a), it's always been indirect gains :which has being looked at. You'd get parking and drinks, mostly drinks :in bars and establishments, especially bars which attract customers :also run a table of card games. : After the number of times that I've repeated that section (b) deals with illegal wins from the game while section (a) deals with illegal gains from the house, they keep acting mystified why section (a) only deals with indirect gains for the house and not direct gains out of the game : I simply suggest that the reason there's been no case to date :on this point : Imagine. No case to date on charging gainings which were not indirect. :is that most gaming games are secreted away and it's :much easier to prove, as the volume of evidence in this case shows, :it's much easier to prove an indirect gain such as the sale of a drink :than to prove the betting handle and percentage theoretical and industry- :wide gains, games and the actually playing of it, it takes a longer :energy to do that and that's what's been done in this case. : But all the evidence they've accumulated is an embarassing non- essential to the elements of the charge. What's hard about determining sales or a rake-off or fee or bank exclusion or game edge? : I think that as an initial starting point, you have to look at :the plain words of the section and I think "kept for gain to which :persons resort for the purpose of playing games" cannot, on any plain :reading of it, but apply to this situation. : Not kept for illegal gain to which persons resort and kept for legal gain when persons do not resort but kept for win to which persons resort for the purpose of playing games. :Everybody knew that Mr. :Turmel was involved in this for making a profit. In fact, : FINLAYSON: He admits it. : SHAW: And so I can't see how those aren't gains. : If you refuse to call profits at the table winnings, then of course, he can't see how those aren't gains. But they're not the type of gains defined in the case law. :I think that :the distinction made between winnings later in the later sections :gains here. They are synonymous as the dictionary suggests. : So even though there's no case law where gain includes winnings, since the dictionary does, the court should now do so too. :I think :that that distinction is too fine a one to be supported on the plainxxx :in the xxxxthe dockxx. In particular, we even looked at the French :version of that section which says, "un local tenu pour fins de gain:" :and then the section in English says "the winnings" "les chances de :gagner." And so it's the same term that's used in both subsections :of the French version. : And that's because the French word for "gain" is "gain" and the French word for "win" is "gain" also. Quebec courts regularly confuse winning with gaining and now the Crown wants to refer to the French to try to confuse this court in believing that there is no distinction between winning and gaining in English too. Case law begs to differ. : FINLAYSON: winning table : SHAW: If you kept it in a business-like manner, they would be :infringing the section. : Professional gamblers have been making a living playing cards and keeping good tax records for years. Again, the business of gaming is not a crime and running your game in a business like manner is not an element of whether the game is a gaming house. It certaily is not relevant to whether a found-in was a victim. :If you hired employees and rented premises, :you would be keeping it for gain. : No. If you hired employees and rented premises, you would be keeping it for loss. If you also win a million a year, those expenses can be against winnings or gainings but are not gainings themselves. :I don't know what else to call the :sum of $600,000 a month that the Appellant has admitted to gaining :in the course of the operation of the casino. : I made no admission of any monthly gain. I didn't count it. Robin Hood just spent it as fast as it came in. Without counting it. I have no idea if I was grossing that much or if that included the payroll and employee tips which were not mine but I did pay well and did spent it all. : And if I can take you to what Supreme Court jurisprudence there :is on this point, tab 4, the DiPietro case, and that's a classic where :the refreshments were sold and there's a card game going on on the :side and ultimately it's dismissed because there's been no wagering, :no proof of money being exchanged. However, there is reference made :page 258 to the sections we're interested in. : You'll see a sidebar passage, you'll see that the constituent :elements of the offence are keeping a place for gain and then the :two other requirements which were admitted to in this case. : And once again, the constituent element is keeping the place for gain from sales of coffee and then the two other admissions in this case. It's not being in the business of gaming, it's being in the business of coffee-selling. :The first two elements of the offence were present as the Appellants :admitted that they are the proprietors of the Colorado Billiards and :that they profit from this undertaking. You have the same admissions :here but you have an admission of an enormous profit of the Appellant :and that he was the keeper of Casino Turmel. : No, they were profiting from indirect coffee sales while I was profiting from direct gambling winnings. : And if I can take you to another Supreme Court case at Tab 3, :it's a case involving (b) definitions but the court distinguishes :and defines the (b) sections in contradistinction to the (a) section. :And this is the "business-purpose" test I was bringing to your attention :earlier. Page 707 You have to take the contextual approach to the :provisions: : "It is unreasonable in my opinion to import the business purpose :test into the second definition in the face of the express words employed :by Parliament." : And the business purpose test they're always talking about is the test for the business of indirect sales, never for the business of gaming directly. : In the immediately preceding portion of the definition which :imports the closely-related notion of "gain." That requirement has :for many years been interpreted loosely as "kept for business purposes." : No. Gain has always been interpreted strictly as "kept for gain" whether as a business or not though businesses most often profit indirectly from the presence of a game. :And so the Supreme Court, albeit in obiter, is looking at how to define :(b) and to do that, looks at the way that (a) is to be interpreted. :And it says the key to looking at it is to look at whether it's kept :for business. : No. It looks at whether it's kept for gain out of indirect sales, business or not. :And that the notion that's most closely related to this :purpose are the gains that are made. And to say that there was not :a business in this case, that the reason that Mr. Turmel had so many :Blackjack tables going on, the reason that the bank was not rotated :in an equal fashion to the players, to say that that is not kept for :gain, is not a business, flies in the face of the facts. : The facts have always stated that John Turmel was a professional gambler in the business of legal gaming and to say that that is not kept for gain but for win, is a business, is the fact. :The reason :that there were so many Blackjack tables was that they were drawing :a profit. He had a theoretical edge as the bank at 0.88%. The expert :evidence led was that the industry average, because people don't all :play at an optimum theoretical level, was a 15% drop. So for every :dollar bet at the tables, there was 15 cents that went to the house. : And I had a half-a-bet per person at my Poker table edge which the Crown says is neutral. Why should my half a bet win at a fair game of Poker be neutral and legal and my half-a-bet win at a fair game of Blackjack be non-neutral and illegal? : Now it's true he did rotate it and if you rotated it to a player, :he could only bank against another player. And so the advantage that :goes with being the bank facing several bets at once was diminished :when you were a player and wanted to be the bank. : Failing to grasp that not being able flip coins with the others while I can does not detract from the fairness of your flip according to Mutual Exclusivity, they will repeat this issue of not being able to play with others even though Judges Fontana, Lennox and Wright all said that it was the 50:50 coin that mattered, not who you could or couldn't play with. :You could only do :it one hand at a time. And while the edge would have been the same, :the fact that you could not have the advantage of betting against :multiple hands meant that you couldn't draw a profit. : "While the edge would have been the same" whether you were flipping coins with me or ten others, the Crown thinks that when you could not flip with ten others, it meant you couldn't take advantage. Again, failing to grasp Mutual Exclusivity, advantage is a function of the coins and not the number of people one can play with. :And the Appellant :was very jealous of the way those rules were exercised to keep the :bank the predominant portion of the time in his control because that's :how he made profits. : Wrong. I actually made more when I was the player than the dealer/banker at the Blackjack tables. Many of my agents had been taught to count cards too. Keeping the bank was not the prime consideration since I had a much higher expectation over an opponent when he banked me than the expected .0088 edge when I banked him. :Like any other businessman, he looked at his :business, he said "where can I make the most money and if he could :make the most money off retaining the bank at Blackjack. : Where I could make the most money, as banker or player, is not the issue. I looked at my business and saw that I could make money playing either way and could thus permit a "U-Bank" table which the Crown expert admits is unique in casino history. There is a valid reason for this unique custom of providing a U-Bank table. : And all I can refer you to if you're looking at earlier cases :involving Mr. Turmel, there's a Quebec Court decision in Hull which :is also in my Book of Authorities at Tab 8. : FINLAYSON: I think that "kept for business purposes" solves the :problem of how the Poker game or Blackjack game is xxxxx : If the judge is going to rule that playing Poker poker is not the crime but playing Poker as a business is a crime, that would be changing the law that that's a function of Parliament, not the courts. : SHAW: Exactly. I don't think that that sort of situation is going :to kept for gain particularly if you're looking at the "business purpose" :test that the Supreme Court has applied. : And again, the test the Supreme Court applied was about the business of selling coffee with money , not winning pots with chips. :And I also make the point :earlier that Poker in itself is not profit-generating activity if :there is no rake-off and that's why the evidence in this case played :itself off on the Blackjack. : Again, he harps on the Blackjack winnings not being as neutral as the Poker winnings which is false. The point is that the Two-man U- Bank Blackjack is just as neutral as the Poker. But in fact, they're both winning half-bet per hour winning activity. : This was very similar, the Quebec case I'm referring you to, :and I accept the Appellant's translation of it without accepting his :editorial notes, in which it was virtually the same evidence that :was led. In the Hull case, there was evidence of more modest gains :in that there were monthly revenues of around a $100,000 that were :produced. And there was the same undercover evidence that was led :in this case, namely that the bank did not rotate in an equal manner. :And in effect, what the judge in this case concluded in convicting :Mr. Turmel, it's unclear whether it was under (a) or (b), in convicting :him said that this was a mere stratagem to get around the law. : As he noted, it's unclear whether the conviction was under (a) or (b) because we were in one-word country where they used the same word under both (a) and (b) and the court refused to order particulars like they do in Ontario of which sections the Crown is going under. FINLAYSON: Is this a provincial court judge? : SHAW: This is a, yes, the equivalent of a Provincial Court judge. :But I think that the provincial court judge pleads into a Supreme :Court jurisprudence which is on point. : Also if I could take you to the Ontario Court of Appeal case :at Tab 5 which is Irwin, which also in passing deals with whether :direct gains are included. Irwin is a case where there was a tavern :where they played Blackjack.. : FINLAYSON: In Quebec, he's acquitted by this judge? : SHAW: No. He was convicted in Hull. This was after the Ontario :acquittals, the one acquittal for Mr. Turmel and the acquittal for :Mr. Booth. He opened up a similar venue in Hull in which, it's actually :much closer on the facts to this case in that we had undercover evidence :about the rotation of the bank and furthermore, we had evidence of :the type of gains that were being made in the business- like venture, :not the more sort of theoretical to the rules that applied to section :(b) or not that is found in the earlier cases. It resulted in conviction :though I'm not relying on it for res judicata. : The Crown can't rely on it for res judicata because not only was the Quebec court hampered by only one word to define the two activities under discussion here but it was not focused on any particular section either. FINLAYSON: I understand that xxx : SHAW: Yes, I'm sorry. Irwin was at Tab 5. This is an Ontario :Court of Appeal case written by Justice Goodman. It was a tavern in :which there were Blackjack games arranged and there's no fee charge :for entering. However, there were prizes that were to be allocated :and in the end, it ends in acquittal, because none of the the prizes :were delivered. The owner very prudently said he would not deliver :any prizes to the winners of the Blackjack games until he ascertained :whether or not it was legally possible for him to do that. : In this case before you, the Appellant's xxx he did advise the :Ottawa Police of his activities. The Ottawa police at no point conceded :that what he was doing was legal and they said that they would investigate :and that if he broke the law, they would charge him. In the Irwin :case, there was no money so it resulted in acquittal. But at page :217, it will show you that common sense interpretation, direct gain :must be included in the provision, it says: : "It is common ground between the parties that the tavern business :increased during the time in which the Blackjack game operated and :that the proprietors of the tavern received at least an indirect gain :as a result of the games.." : There was evidence of everyone buying drinks. : ".. if not a direct gain." Once again, Irwin was in danger because of his business sales and not for his direct gain. I only relied on Irwin as another case of indirect sales being judged under (a). : I think in a similar vein, if I can take you to Tab 9, a Quebec :Court of Appeal case page 4, there again, there was in a drinking :establishment there were card games that were set up and you had to :pay extra money to get pay your drinks if you were at the card tables. :Probably that would be indirect gain in those cases. The Quebec Court :of Appeal judgment of Juge Beauregard says: : "Il n'est pas necessaire que le gain qu'espere faire l'exploitant :provienne du jeu lui-meme." : "It is not necessary that the gain that the merchant wants comes :from the game itself." : Of course not. Section (a) is there to handle just that kind of gain that does not come from the game itself. :But I think that throughout the jurisprudence, :you'll find an assumption that while indirect gains are sufficient, :direct gains would be even better proof of liability under the section. : No. Direct gains are better proof under the section. They are only proof under subsection (b) while indirect gains are sufficient only under subsection (a). : So I disagree with the Appellant in the way he characterizes :jurisprudence that only indirect gains are caught since throughout :the cases, there's always a mention that indirect gains will do, and :of course, if you don't have direct gains. : That's not how the jurisprudence works. It's not that indirect gains will do if you don't have direct wins. It's that indirect gains will do whether you have direct wins or not. Indirect gains are one of the five ways to be a gaming house and are not connected in any way to whether there are any illegal direct gains or not. : And that, to come back to my original submissions on the point, :flows from the wording of the section itself and would require, in :order to give the Appellant his appeal, would require you to read :in "kept for indirect gain" into the provision. : Actually, that would be exactly what the case law defining "gain" has limited it to. Case law limits "gain" to indirect gain and doesn't need to mention whether it's indirect or not because direct gain out of the game is already handled under the (b) subsections. :The Supreme Court :in MacIntosh has said that courts have to be very wary about reading :into provisions words that aren't there. Particularly on a plain reading. :Mr. Turmel was gaining and was gaining substantially from a business :that he was running. : It's true that "kept for indirect gain" is what the case law amounts to and without reading into the provisions the word that isn't there, I'd be happy to go with the limits set on its definition by the case law. : FINLAYSON: Mr. Turmel, your reply? So, you've heard how I'd have liked to answer all of his incorrect statements one at a time and now you get to see how I responded on the spur of the moment in the heat of debate: : TURMEL: So does every Poker player in history who sits at home :and plays Poker like Judge Austin pointed out. I sit at home, play :Poker, I will make substantial gains and if you're going to call "winnings" :"gains," then yeah, I'm breaking the law at the private game with :Justice Austin there. If he invites me to his game, we're both guilty :under this new interpretation. : AUSTIN: Is my house kept it for gain. : TURMEL: But the point is, it's the game that's kept for gain, :for win. All the examples he chose had to do with things that you :make out of keeping the business. "The business test," they keep saying. :All these things (gaming house chart). Not once could he ever point :to one guy who won a dollar out of a pot convicted under section (a), :right? Not one case. Not a dollar ever won out of a game except for :my case. I'm the first. : Now I don't like bringing up Quebec because Quebec are "one-word" :territory. In English, we've got "winnings" to distinguish from "gainings." :I can distinguish between the two. The Crown doesn't want to but there :are two words in the dictionary. And it just so happens that jurisprudence :has treated those two words differently though the Crown thinks they're :the same. "Winnings" have always been a (b), gainings have always :been an (a). Well, guess what? Right after I win my case in 1989 with :Judge Fontana who says: No gain, no win problems, no problem there, :I went over to Quebec to try to enforce my right to play. I went over :to "one-word" country. It's the same word for "gain" and "win" in :French: "gain." They've only got one word. How can you expect a judge :with one word to distinguish between two concepts. It's like trying :to solve two equations with two unknowns. : So I'm saying that he brings up that French Quebec problem and :it's just not a fair at me. : FINLAYSON: All right.. xxx : TURMEL: That's right. And every case he ever brings up. Now you :can call my profession of gambling a business if you wish. And you :can say because he's in the business, this code section is against :all businesses. Because everyone ever charged under (a) has been :a business. Well, he's right. But they were in the business of selling :stuff, not the business of winning. Okay? : FINLAYSON: All right, you're repeating your arguments. : TURMEL: All right, so I'll go over the notes he made. : First of all, he said there's no problem with the Poker. There's :no problem with my winnings at the Poker. Now he said that a moment :ago and at the beginning. It's only Blackjack he's worrying about. : AUSTIN: He says it's neutral. : TURMEL: It's neutral. If the point it's not, I just explained :how I made half a unit bet off everybody at the table who plays with :me. I make 5 bets an hour. I can make $40 grand a week if I can find :a big enough game: $100/$200. $25/$50 like I had going regularly at :the casino, that's $10 grand a week I could make playing Poker. Now :he's saying I'm making $10 grand a week playing Blackjack too. Tsk. :It's the $10 grand a week at Blackjack that's bad. But the $10 grand :a week at Poker is neutral. : FINLAYSON: You're really repeating yourself here. : TURMEL: Oh. I thought that was kind of new. So I'm just saying :that because he only wants to talk about winnings at one game is not... :Well, I do win at the other game and he says that's okay. So why would :my judge, who didn't distinguish, my judge said "playing cards and :making money's the crime." He didn't say playing Blackjack, not Poker. :He said playing cards in his decision. It was dominantly Blackjack. : All right. He said "the location and the time were different." :And that's the reason they don't have to use res judicata and abide :by it. He mentioned the apartment house which was accused of being :a rooming house, acquitted and charged again. The Crown said: Hey, :it's a different time. And the judge said: I don't care. No change :in operations, autrefois acquit applies even if it is different time. : Carrier, this was a poster or a pamphlet which had been charged :with being seditious at a time and place, acquitted, charged again :at a later time and place of being a seditious poster again. The Crown :argued: Hey, different time and place, like they're doing here with :me. The judge said: I don't care. It has nothing to do with the fact :that it's the same poster. Autrefois acquit. : So in my case, the same thing applies. They're going to scream: :Different time and place. Same rules. Same everything. And it's not :that the rules of Blackjack are the same, it's the fact that nothing :changed. The judge said that: Nothing changed between the two events. : FINLAYSON: All right. We've got that. : Now that he's got that there was no evidence of any change in the operations, how can he not be asking for Judge Fontana's transcript like Judge Abella did? If they're the same, then his judgment should be apposed to Judge Wright's. : TURMEL: Okay. Three four times the Crown mentioned they didn't :have evidence of the accounting in the Booth case. They didn't have :the massive reams of evidence showing John Turmel's winnings. I mean, :they counted all the chips at my table. They knew how much I was winning. :They traced my bank accounts. They looked at the gains. And do you know :what the justice says in the James case, my number one case on the :(a) section? : "The notion of gain should not be embarrassed by the amount." : If I'm making an illegal, if I'm selling only ice cream cones, :that's guilty whether or not I'm selling a million ice cream cones :or not. It's an important point that the Crown says: We have evidence :now that Judge Fontana didn't see. : The point is both cases had identical Statements of Agreed Facts :with 19 agreed points. Okay? Not only was nothing different pursuant :to the judge, the Statements of Facts were identical too. : Now once I admitted that I was winning gambling, Fontana said: :Well I don't need his bank records. : And once I had admitted that: Here is how the game works. You :play me, nobody else, 50:50. Mutual Exclusivity, a mathematical term :very few lawyers understand. It means that as long as you're getting :a fair game with me heads-on, it doesn't matter what I'm doing with :anybody else. All this rules of Blackjack stuff, how much of an edge :the house has, irrelevant because it's like the old days in the old :West. The guy who had the bank also had the gun and he won 100% of :the time. As long as you get a 50:50 chance to get the gun, it's a :fair game. : FINLAYSON: Don't get excited.xxxxxxx : TURMEL: I'm trying to be quick, that's all. : FINLAYSON: Try to keep your voice down. Do you have anything :else to say? : TURMEL: Well, other than the fact that all of this new evidence :the Crown is talking about was admitted and rather, Judge Fontana :didn't need to have my admissions proved, he admitted, he accepted :them. And Judge Wright chose to let them introduce and be embarrassed :by volumes about the amount and let them introduce information on :the game, on the bank, all admitted. So yeah, they had new evidence :but it was all in the original admissions and it was a waste of time, :is my point. : It might look like an impressive case but it's not. : FINLAYSON: Where are the 19 points that are mentioned? : TURMEL: It's in Book 2 of the Appeal Book Exhibits #3: Agreed :Statement of Facts. They didn't include the 1989 version but it happens :to be in the motion I made, I did a res judicata plea before this :one here, that was last year and it's in there. So they are identical :facts, nothing changed. Except evidence of those facts. : Notice the problem that the Agreed Facts from 1989 were not part of the official history of the case and is not under consideration. : Now the Crown says: Look it, if we can't use (a) to prosecute :his winnings, we'll be left with no remedy. The point is that if I'm :not breaking the law, so what? What kind of remedy does he want? He :wants to be able to bust legal games? And if I can't get him with :the (b) sections, I want a warped interpretation of (a)? So they don't :deserve a remedy if I'm not breaking the law. : The Booth case, he says: It was a different party so res judicata :doesn't apply. I was the expert witness in the Booth case because :I was running the game that got busted. And Judge Fontana said that: :You, sir, the victim. He didn't charge a rake, he didn't charge a :fee, he didn't do this, he didn't do that, he didn't do that to you, :you weren't in a gaming house. No gaming house existed. : So when Judge Lennox gets this ruling and he has to decide whether :I was running a gaming house, he said: I can't contradict Judge Fontana :who has found no gaming house there. He looked at all the found-ins. :Saw none of them were disadvantaged, therefore not guilty. : Now that is an important point. Judge Fontana and Judge Lennox :upon whom I am basing my double-jeopardy pleas on, had the benefit :of Judge Fontana's decision on the found-ins. Were any of the players :victims of a gaming house? No. : Judge Wright didn't have that benefit. They didn't charge any :found-ins. They just charged me. So Judge Wright doesn't have anybody :telling him: Gee, no one paid a rake, no one paid a fee, no one did :this, no one did that, he didn't sell anything, none of the gaming :house sections apply. : Judge Wright just has accounting. And he goes: : FINLAYSON: You're reading xxxx : TURMEL: All right, well, I'm just trying to make sure everything's :covered because he brought them up again. How do I know you're not :listening to him? How do I know you're not believing him. That's why :I'm trying to shoot down what he repeated. : FINLAYSON: Settle down. Are there any more points you'd like :to deal with? : TURMEL: At one point, he said that it's easier to prove section :(a) sales than clandestine hidden gambling profits. And later on, :he said: section (b) makes it easier to prove the gambling profits. :So I want to point out that contradiction. He said: It's easier to :prove (a)" and in the same paragraph said "it's easier to prove (b)." : He says "the plain words must apply." And again, that's going :back with the dictionary versus my 50 years of case law. He says that :wins and gains should be synonymous as the dictionary suggests. And :as case law doesn't. : He pointed out that the French was even better, they've got the :same word for both things. : FINLAYSON: You're going over the same things. : TURMEL: I've only got 5 more lines. : FINLAYSON: Well, argue them. : TURMEL: Okay. Both the cases DiPietro and Rockert were acquittals :and Rockert was running a Blackjack game. So now we've got a judge :telling us it doesn't matter, it it's winnings, it's illegal. Well, :there's proof that Blackjack winnings are not illegal, there are legal :ways of doing it. And I've found one. : He kept saying the bank didn't rotate equally. All three judges :said it did, between you and me. And the fact that you couldn't bank :another guy had no effect on your game with me. : He said there's an advantage in facing several players that I :had no one else had. Key point. That is true. I would get to be the :bank against five guys but they could only bank me heads on. And it's :like I flip coins with five guys. The Crown might want to imply that :I gain an advantage by flipping coins with five guys, I say that how :many guys I flip coins with has no effect on advantage, it's got to :do with the coin. So the fact I was giving you a fair game and I was :playing with five guys, they're all getting fair games. : Point by Justice Austin about Poker in the home... : FINLAYSON: We heard that. Look, we're running out of time.. : TURMEL: And finally, the undercover evidence that a rotation :of the bank that he didn't think was fair was admitted in the statement :of facts. The Irwin case he brought up was about a tavern business :which had increased and he wasn't involved in any direct gain at all. :So another case of gains from holding the place to which games show :up. And if the game's not there, those gains aren't illegal and that's :the kind of gains section (a) deals with. Only indirect. So, the grammar :would be wrong if it dealt with winnings. That's all I have. : FINLAYSON: We'll reserve on that. : So there's lots I didn't tell them that you now know about. And this new found-ins case is a wonderful chance to focus the light on that whether Turmel-style gaming has any illegal losings. # ## -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!geac!gts!openstore!demon.uunet.ca!news.uunet.ca!hookup!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 12:40:29 1996 Xref: elastic can.general:59297 can.legal:10741 can.politics:92290 Path: elastic!lethe!geac!gts!openstore!demon.uunet.ca!news.uunet.ca!hookup!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Repost: Robin Hood Gaming House Appeal Judgment Date: 18 Sep 1996 13:48:14 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 915 Sender: bc726@freenet5.carleton.ca (John Turmel) Message-ID: <51ouiu$om1@freenet-news.carleton.ca> NNTP-Posting-Host: freenet5.carleton.ca Appeal No. C21516 COURT OF APPEAL FOR ONTARIO FINLAYSON, ABELLA and AUSTIN JJ.A. Between: ) ) HER MAJESTY THE QUEEN ) John C. Turmel ) in person Respondent ) -and- ) ) Trevor Shaw JOHN C. TURMEL ) for the respondent ) Appellant ) Heard: May 27, 1996 ) ) REASONS FOR JUDGMENT FINLAYSON J.A.: On May 16, 1994, His Honour Judge Peter Wright of the Ontario Court of Justice (Provincial division) convicted the appellant, following his plea of "autrefois acquit," of keeping a common gaming house contrary to s.201(1) of the Criminal Code. On March 31, 1995, the appellant received a suspended sentence and a three year term of probation. The terms of the probation required inter alia that he perform 200 hours of community service, that he not communicate with any person known to him to have a criminal record with exceptions to be set out in writing by a probation officer, and that he not be found in any place where there is gambling with cards or dice for money except an establishment licensed for that purpose. The appellant was also ordered to pay a victim fine surcharge of $2,500 within 24 months. He appeals both conviction and sentence. APPLICABLE PROVISIONS OF THE CRIMINAL CODE (A) PROVISIONS RELATING TO GAMING AND BETTING 201. (1) Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) Every one who (a) is found, without lawful excuse, in a common gaming house or common betting house, or (b) as owner, landlord, lessor, occupier or agent, knowingly permits a place to be let or used for the purposes of a common gaming house or common betting house, is guilty of an offence punishable on summary conviction. 197. (1) In this part "common gaming house" means a place that is (a) kept for gain to which persons resort for the purpose of playing games, or (b) kept or used for the purpose of playing games (i) in which a bank is kept by one or more but not all of the players, (ii) in which all or any portion of the bets on or proceeds from a game is paid, directly or indirectly, to the keeper of the place, (iii) in which, directly or indirectly, a fee is charged to or paid by the players for the privilege of playing or participating in a game or using gaming equipment, or (iv) in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game. (b) PROVISIONS RELATING TO SPECIAL PLEAS 607. (1) An accused may plead the special pleas of (a) autrefois acquit, (b) autrefois convict, and (c) pardon. (3) The pleas of autrefois acquit, autrefois convict and pardon shall be disposed of by the judge without a jury before the accused is called on to plead further. 609. (1) Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears (a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and, (b) that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded, the judge shall give judgment discharging the accused in respect of that count. ISSUES There are three issues in this appeal: (1) Whether the common law doctrine of double jeopardy, encompassing the special plea of autrefois acquit, was available to the appellant, either on the basis that a prior acquittal converted the appellant's operation of a gaming house into res judicata, or on the basis of the common law plea of issue estoppel. (2) Whether the appellant's winnings from the game of blackjack constitute a "gain" within the meaning of s.197(1)(a) of the Code. (3) Whether the sentence was fit. A detailed analysis of the proceedings before Wright P.C.J., and related proceedings, is necessary to understand the arguments on the first two issues. OVERVIEW OF THE PROCEEDINGS The appellant was charged on July 21, 1993 with keeping a common gaming house contrary to s.201(1) of the Code, at two locations in Ottawa, one on Baxter Rd. (Turmel's Games Room) and the other on St. Laurent (Casino Turmel). The appellant's defence was that he had been acquitted on April 7, 1989, of keeping a similar gaming operation at the Bayshore Hotel on Carling Avenue in Ottawa. With respect to the Carling Avenue premises, in addition to charges being laid against the appellant for keeping a common gaming house contrary to s.201(1) of the Code, charges were laid against four other individuals for being found in a common gaming house contrary to s.201(2) of the Code. At the trial of the alleged "found-ins" before His Honour Judge Fontana of the Ontario Court of Justice (Provincial Division), the appellant testified for the Crown as to the manner of operation of the game of blackjack. Fontana P.C.J. found that the Carling Avenue establishment was not a "common gaming house" within the meaning of s.197(1) of the Code and acquitted the four accused (R. v. Booth April 3, 1989, unreported Ont. Ct. (Prov. Div.)). A few days later, the appellant was tried before His Honour Judge Lennox of the Ontario Court (Provincial division) on the charge of keeping the Carling Avenue gaming house contrary to s.20191). Relying on the finding of Fontana P.c.J. at the trial of the "found-ins" that the Carling Avenue casino was not a "common gaming house" within the meaning s.197(1), Lennox P.C.J. acquitted the appellant of keeping the Carling Avenue casino (r. v. Turmel April, 1989, unreported Ont. Ct. (Prov. Div.)). The Crown did not appeal the acquittal in either case. As noted earlier, in July, 1993, the Crown laid the instant charges against the appellant for keeping the gaming houses at St. Laurent Boulevard and Baxter Road. On the basis of his acquittal by Lennox P.C.J. on the Carling Avenue charge, the appellant entered a plea of autrefois acquit. The plea was struck by Wright P.C.J. and a plea of not guilty was entered on the appellant's behalf. On May 16, 1994, the appellant was convicted by Wright P.C.J. of keeping common gaming houses at Baxter Road and St. laurent Boulevard contrary to s.201(1) of the Code. It is from this conviction that the appellant appeals. PROCEEDINGS BEFORE FONTANA P.C.J. In the proceedings before Fontana P.C.J., entitled R. v. Booth, supra, four accused were charged with two counts each, the first count being that they were, without lawful excuse, in a common gaming house contrary to s.201(2)(a) of the Code and the second count being that they were, without lawful excuse, in a common betting house, also contrary to s.201(2)(a) of the Code. The four accused were found in the Bayshore Hotel on Carling Avenue in Ottawa, in a room rented by the appellant, where blackjack was played. Fontana P.C.J. described the Bayshore Hotel premises on Carling Avenue and the mechanics of how blackjack was played there: "The room in question was equipped with a certain minimal amount of gambling apparatus for the playing of cards, including decks of cards, a semi-circular green felt table, a shoe. Posters were prominently displayed in the room setting out the rules of the game. Mr. Turmel described the game as, "Atlantic Twenty-one" and throughout the course of evidence, the examination and cross-examination, reference was also made to the term "Black Jack". There were additional general rules which are, in my opinion, of consequence in this case, the first being that anyone could be the bank at any time. And attendant upon that, a player who wished to enter the game must be the bank at least once before playing, and that, presumably, was so the individual would know how to be the banker and deal from the shoe in order to exercise right and opportunity to be the banker at any time... As Mr. Turmel indicated in his testimony, any player could be the banker all night as far as he was concerned... Refreshments were available but there was no charge for them... There was no fee to enter the game... There was no percentage or "rake-off" by the house on the wagering that occurred... if a player exercised his right to be a dealer, then that person played against him, that is Mr. Turmel, and not against the other players at the table. Those other players would then go to another game which would be played with an agent of Mr. Turmel at another table or perhaps play among themselves. Having regard to the criteria and the definition set out in the definition section, I do not consider this to be a consequential element in determining the lawfulness or the unlawfulness of the game." The Defence in Booth brought a motion for a directed verdict. Fontana P.C.J. granted the motion, and the charges were dismissed. In dismissing the charges, Fontana P.C.J. stated that s.197(1) of the Code defines "common gaming house" in five ways. In s.197(1)(a), "common gaming house" is defined as "a place that is kept for gain to which persons resort for the purpose of playing games." In s.197(1)(b), "common gaming house" is defined in four other ways according to the mechanics of how the game is played. Fontana P.C.J. found as follows: "On the evidence alleged by the Crown, and accepting the testimony presented on behalf of the Crown by Mr. Turmel, the operation in this occasion clearly does not fall into the first four categories. That is: a place kept for gain or for playing games where the bank is kept by one or more but not all of the players; where there is a rake-off to the house as is mentioned in subsection two; or where there is a fee charged. Clearly, none of those first four criteria apply. If the operation on this occasion is to be caught, it must be caught with respect to sub-subsection four which I quote: "Kept or used for purposes of playing games in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game."" Fontana P.C.J. identified the main issue in Booth to be whether the chances of winning the game were equally favourable to all players. He decided that, on the mechanics of the game as played at the Bayshore Hotel on Carling Avenue, the chances of winning were equally favourable to all players: "While there was a small advantage to the banker\dealer, nevertheless that opportunity to be the banker \dealer was available to all players who participated in the game... The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the Section." The appellant is a skilled gambler who has made large winnings at all of his casinos. The issue before Wright P.C.J. at the appellant's trial on the Baxter Road and St. Laurent Boulevard charges was whether winnings count as "gains" within the meaning of s.197(1)(a). The appellant argues that Fontana P.C.J. considered this issue at the trial of the found-ins when he stated that "the Carling Avenue operation... clearly does not fall into the first four categories. That is: a place kept for gain..." This passage is the basis for the appellant's submission that the principles of autrefois acquit, res judicata, and issue estoppel were applicable at his trial before Wright P.C.J.; he argues that Wright P.C.J. was bound to acquit him because the issue whether winnings are gains was decided in his favour by Fontana P.C.J. and later by Lennox P.C.J. who adopted the reasons of Fontana P.C.J. PROCEEDINGS BEFORE LENNOX P.C.J. In the proceedings before Lennox P.C.J., entitled R. v. Turmel, supra, the appellant was acquitted of keeping a common gaming house at the Bayshore Hotel on Carling Avenue contrary to s.201(1) of the Code. Lennox P.C.J. explained the relationship between the Booth case and the case before him as follows: "My brother Judge Fontana, a short time before I commenced that trial, heard a charge of being a found-in or found-ins in a common gaming house at the same address between the same dates... I understand that it is common ground that the evidence called in the course of that proceeding for all practical purposes are identical to the present matter and that any argument that would have been advanced in this matter, was already advanced before His Honour Judge Fontana... I am aware of the decision of Judge Fontana and of its result." Lennox P.C.J. in Turmel adopted the reasons of Fontana P.C.J. in Booth with respect to the issue whether the Carling Avenue premises constituted a gaming house within the meaning of s.197(1): "In Judge Fontana's decision, essentially, as I understand Lãÿ(êit is that there was no evidence that there was, in fact, a gaming house being kept on the premises. I would have difficulty, because of that finding, in rendering what would essentially be a contradictory verdict on what I understand to be, basically, the same facts. I would propose, without further specific consideration, in view of the necessity, in my view, of avoiding contradictory decisions on the same matter on the same evidence, to follow the Ruling of Judge Fontana. In my view, it would be an error on my part at this point in time to consider delivering a contradictory verdict on what amounts to an argument at law, that being a complete absence of evidence. In those circumstances... I propose, simply, to adopt the reasons, for the purposes of this trial, of Judge Fontana and the result." Accordingly, Lennox P.C.J. allowed the defence motion for a directed verdict and the charges against Turmel were dismissed. PROCEEDINGS BEFORE WRIGHT P.C.J. The proceedings before Wright P.C.J. are the subject matter of this appeal. Wright P.C.J. described the gambling operations at the St. Laurent Boulevard and Baxter Road locations as follow: "Mr. Turmel had purchased and owned professional game playing tables at both premises. Food and non-alcoholic beverages were served to the patrons free of charge. The public was invited to attend at both premises for the purpose of playing blackjack with Mr. Turmel and his employees or poker with Mr. Turmel and other patrons. Mr. Turmel and his employees would act as cashiers. The Casino Turmel and Turmel's Games Room were attended for the purpose of playing games such as blackjack and poker, and the court was further advised that there was no fee required to enter the premises. A patron could buy into a game at two hundred dollars. Games were played with poker chips which were sold by cashiers in denominations of two dollars fifty cents to five hundred dollars. If a player chose to become dealer/banker for blackjack, the player would leave the table if there were more than one player present, or stay at the table and all the other players would leave the table. This player would then become the dealer/banker against Mr. Turmel or one of his employees. Patrons were not allowed to bank against other patrons... It is indicated that the premises were operated as a professional organized playing venue with all the paraphernalia such as blackjack tables, poker tables, chairs, playing tables, playing chips, cards, card dealing shoes, food, beverage, that there were monitors for taking cash and playing chips, a doorman, as well as camera and surveillance equipment... The operation [at the St. Laurent location] was much bigger than at Baxter Road, a full-fledged casino with many employees, two games of blackjack and "hold 'em", a type of poker. He [an undercover police officer] estimated that there were seventy-five to one hundred people in attendance." The main issue before Wright P.C.J. was the proper interpretation of the definition of "common gaming house" in s.197(1)(a) as "a place kept for gain." The blackjack rules at St. Laurent Boulevard and Baxter Road were designed to ensure the game fell outside the definitions of "common gaming house" in s.197(1)(b); no player was prohibited from keeping the bank, no portion of the bets on or proceeds from the games were paid to the appellant, no fee was charged for the privilege of playing, and the odds of winning, assuming equal skill among players, were equally favourable to all. The parties agreed that the Crown had to prove that the Baxter Road and/or St. Laurent Boulevard premises were "kept for gain" within the meaning of s.197(1)(a). Wright P.C.J. proceeded on the premise that Fontana P.C.J. and Lennox P.C.J. decided whether the Carling Avenue casino was a "common gaming house" by considering s.197(1)(b), but not s.197(1)(a). Wright P.C.J. stated: "Were the Crown proceeding under s.(b), I would find that it has not been established beyond a reasonable doubt that there was a bank kept by one or more but not all the players or in which the chances of winning were not equally favourable to all, given the signs, rules and equal opportunity to be banker/dealer, or that the accused has been shown to fall under any of the other headings as set out under (b)... Were the Crown proceeding under (b), it follows that in accordance with the Booth decision, I would enter an acquittal based on the facts that are before me. The Crown proceeds today on a different definition and that is the definition found under (a) which provides that a "common gaming house" means a place that is kept for gain to which persons resort for the purpose of playing games. If the charge against Mr. Turmel turns on the meaning of the word "gain", does gain include winnings?" The Appellant Turmel assumes that by not charging players for food or drinks, or for the privilege of gambling, he kept his operations outside the s.197(1)(a) definition of common gaming house as a place kept for gain. He states in his factum on appeal: "As long as I didn't violate one of the four (b) definitions in the subset [i.e. s.197(1)(b)] of illegal ways of winning chips out of the games by taking a rake-off from pots, charging a fee to play, excluding anyone from being the banker or having some advantage others did not have "and as long as we didn't violate the (a) definition by playing where someone's cash register was gaining money, I was never perturbed when the police came in to my private halls to check out my games..." [Emphasis added.] It is not disputed that the appellant is an exceptionally skilled professional gambler who supported his establishments and paid his employees out of his large winnings. Because he is exceptionally skilled, the rule prohibiting players from banking against anyone but him or an employee of his helped him make large winnings. But he argues his winnings are not "gains" within the meaning of s.197(1)(a) because he earned them by skill, the odds being equally favourable to all players. However, Wright P.C.J. interpreted "gain" in s.197(1)(a) to include winnings: "I conclude that this was a business, a commercial activity on a large scale. There is no evidence of any indirect gain or income whatsoever, only from the business of gambling directly. There is no other reason for the places to have been kept other than to produce income. I conclude that gambling income does come within the meaning of (a), and I must conclude that the charge is proven, and there will be a finding of guilty." The appellant argues that his gambling operations at St. Laurent Boulevard and Baxter Road were the same as his operation at Carling Avenue impugned in the earlier decisions of "Booth" and "Turmel." He contends that with no evidence of any change in the gambling operations, Wright P.C.J. was precluded from convicting him by interpreting the word "gain" in s.197(1)(a) of the Code differently than did Fontana P.C.J. and Lennox P.C.J. In rejecting the appellant's argument that the principle of "res judicata" applied to bar him from interpreting "gain" differently than did Lennox P.C.J. and Fontana P.C.J., Wright P.C.J. held as follow: "In relation to the argument of res judicata raised on the last day, I am satisfied that the defence cannot succeed. Whatever the determination with respect to the meaning of "kept for gain", I am satisfied that it is a distinct issue and question of law from the issues which were raised in the previous cases in R. v. Booth and R. v. Turmel, Ottawa. Further, in respect of R. v. Booth, the parties are not the same persons." ANALYSIS ISSUE (1) Whether the common law doctrine of double jeopardy, encompassing the special plea of autrefois acquit, was available to the appellant, either on the basis that a prior acquittal converted the appellant's operation of a gaming house into "res judicata," or on the basis of the common plea of issue estoppel. The meaning of the plea of "autrefois acquit" is explained by Dickson J. for the Supreme Court of Canada in R. v. Riddle (1980) S.C.R. 380 at p385: "One of the fundamental rules of the criminal law is expressed in the maxim, nemo debet bis vexari pro una et eadam causa, no person shall be placed in jeopardy twice for the same matter. By the special plea of "autrefois acquit," founded upon that maxim, the accused says simply that he has been previously acquitted of the offence with which he is now charged; that offence is res judicata, i.e. it has passed into a matter adjudged. A second prosecution is, therefore, not open. In the case at bar, the respondent says that the assault alleged in the first information has become converted into res judicata or judgment. The classic statement of the principle is found in Hawkins' Pleas of the Crown (1726), Bk. II, c.35, p368: "That a man shall not be brought into danger of his life for one and the same offence more than once. From whence it is generally taken, by all the Books, as an undoubted consequence, that where a man is once found "not guilty" on an indictment or appeal free from error, and well commenced before any court which hath jurisdiction of the cuase, he may by the common law in all cases whatsoever plead such acquittal in bar of any subsequent indictment or appeal for the same crime. In short, when a criminal charge has been once adjudicated by a court having jurisdiction, the adjudication is final and will be an answer to a later information founded on the same ground of complaint." The appellant relies on two decisions to argue that the plea of "autrefois acquit" is available to him: R. v. Carrier (1951), 104 C.C.C. 75(Q.K.B.) and City of Montreal v. Rothman Realty Ltd (1963), 41 C.R. 372 (Mtl. Mun Ct.). In "Carrier," the appellant appealed his conviction of publishing false news contrary to s.136 of the Code on the grounds that he had previously been acquitted of publishing a seditious libel contrary to s.134 of the Code. The court, in overturning the conviction on the principle of "autrefois acquit," found that although the appellant was charged with two different offences, because the impugned pamphlet was the same in both cases, the outcome of the seditious libel case was determinative for the purpose of deciding the false news case. The court stated at p.84: "In the first indictment it was said: "The document contains a seditious libel and in the second it is said: "The document is of a nature to occasion injury or mischief to the public interest." This second charge forms part of what the Code calls "seditious offences." Nowhere does the Code define what is understood by the words "whereby injury or mischief is occasioned to any public interest." But read in the context the Court believes that if this document was not seditious it could not have the effect of causing, criminally, such injury or mischief to the established authority. The court held that the applicability of the principle of "autrefois acquit" depends on whether the first matter on which the appellant was arraigned was the same, in whole or in part, as the second matter on which it is proposed to prosecute him. If, by making the necessary amendments to the indictment, the accused could have been convicted of the second charge, the principle applies and no prosecution should lie. The appellant argues that in "Carrier," the impugned pamphlet was the same on both indictments. The indictment in the seditious libel case could have included the false news charge: only the charge and the date and location changed. In the case on appeal, the charge before Wright P.C.J. was the same as the charge before Lennox P.C.J., as in "Carrier," the date and location had changed. The appellant submits that the "Carrier" case should be taken to mean that changes in the date and location of an offence are insignificant, therefore, Wright P.C.J. should have applied the principle of "autrefois acquit." However, in "Carrier," the content of the pamphlet was the most important part of the both cases; Drouin J. of the Quebec Court of King's Bench applied the principle of "autrefois acquit" because the pamphlet in the false news case was identical to the pamphlet in the seditious libel case. Similarly, in "City of Montreal v. Rothman Realty," supra, Lachapelle Mun.Ct.J. dismissed the charge of operating a rooming house on the grounds that the accused had previously been acquitted of the same charge in relation to the very same building. The appellant relies on "Carrier" and "City of Montreal" as precedents for his plea of "autrefois acquit," but, on principle, these two cases are better reconciled as applications of the doctrine of "stare decisis." In the case under appeal, while it is true that the blackjack rules at the Baxter Road and St. Laurent Boulevard casinos appear to have been much the same as the blackjack rules at the Bayshore Hotel on Carling Avenue, it is clear from the reasons of Wright P.C.J. that the features of the premises at Baxter Road and St. Laurent Boulevard, including their size and location and the scope of the gaming operations as a whole, were important considerations in his conclusion that the premises constituted places "kept for gain." The appellant argues that Fontana P.C.J.'s finding that the Carling Avenue casino was not a "common gaming house" constituted a finding that blackjack, wherever played in accordance with the rules testified to by the appellant, will survive scrutiny under s.197(1) of the Code. While not expressing himself in these terms, the appellant apparently treats the judgment of Fontana P.C.J. as a judgment "in rem" converted into a judgment "in personam" when adopted by Lennox P.C.J. The appellant submits that he can never be prosecuted for an offence arising out of the playing of blackjack as long as it is played in accordance with the "Turmel rules," on the grounds that his version of blackjack has been found not to contravene the Code. He arrives at this conclusion by arguing that Fontana P.C.J., in acquitting the found-ins in R. v. Booth, vindicated the appellant's version of the game; that Lennox P.C.J., in adopting Fontana P.C.J.'s judgment acquitted the appellant because his version of blackjack did not constitute his premises a common gaming house. Accordingly, he submits, Wright P.C.J. erred in distinguishing the appellant's earlier acquittal by Lennox P.C.J. on the basis that the Crown introduced evidence not proffered in the earlier proceedings. But that the Carling Avenue premises were not kept for gain is not determinative of whether the St. Laurent Boulevard or Baxter Road premises were kept for gain, even if the rules of blackjack were the same at all three casinos. That the findings of Fontana P.C.J. and Lennox P.C.J. might be "persuasive" before Wright P.C.J. does not mean those findings justify the special plea of "autrefois acquit." In my view, the appellant's argument confuses "autrefois acquit" with the doctrine of "stare decisis" whereby Wright P.C.J.'s deliberations were constrained, but only to the extent he felt bound by judicial comity, to interpret the meaning of "gain" in s.197(1)(a) in the same manner as his colleagues Fontana P.C.J. and Lennox P.C.J. The plea of "autrefois acquit" was not applicable in the proceedings before Wright P.C.J., even accepting the appellant's assertion that Lennox P.C.J., in acquitting the appellant of the Carling Avenue gaming house charge, decided the issue whether winnings count as gains under s.197(1)(a). Wright P.C.J. was entitled to reconsider that issue on new evidence because pursuant to s.609(1)(a) of the Code, for the appellant's plea to succeed, "the matter on which he was given in charge" before Lennox P.C.J. must have been "the same in whole or in part" as the matter on which he was given in charge before Wright P.C.J. The only evidence on our record is that the blackjack rules were largely the same at Carling Avenue, Baxter Road, and St. Laurent Boulevard. The appellant argues that this identity of rules grounds the plea of "autrefois acquit;" he argues that since blackjack was played the same way at all three premises, the acquittal with respect to one of the premises is determinative of his innocence of keeping a common gaming house at the other two premises. But if, despite the identity of the blackjack rules, the "matter" in the three cases is not the same, in whole or in part, within the meaning of s.609(1)(a), then the appellant's plea must fail. The appellant was not on trial before Fontana P.C.J. and he cannot rely upon that judgment "per se." He must rely upon the adoption of that judgment by Lennox P.C.J. to argue that the matter of his guilt on the charge of keeping a common gaming house at the Carling Avenue premises was the same as the matter before Wright P.C.J. of his guilt on the same charge at the Baxter Road and St. Laurent Boulevard premises. But on authority, the "matter" before Lennox P.C.J. was not the same as that before Wright P.C.J. because the matters involved different factual transactions. Ewaschuk, in "Criminal Pleadings and Practice in Canada," 2d ed. (Aurora, Ontario: Canada Law Book, 1996) suggests at p.14-13 that two matters are the same within the meaning of s.609(1)(a) only when they arise from a single factual transaction: "Questions for determination on the special plea of "autrefois acquit" or "autrefois convict" are: (a) whether the accused has previously been finally convicted or acquitted "on the same factual transaction;" [Emphasis added.]" The "same factual transaction" means not two transactions having identical facts, but one transaction giving rise to multiple charges. For example, in R. v. Prince, (1986) 2 S.C.R. 480, the respondent was convicted of causing bodily harm to a pregnant woman by stabbing her in the abdomen. The respondent was later charged with manslaughter in respect of the child, who died after a premature birth. The respondent moved for a stay of the manslaughter proceedings on the basis of the principle of R. v. Kienapple, (1975) 1 S.C.R. 729. According to the "Kienapple" principle, an accused may not be prosecuted for two more more substantially similar offences if the offences arise from the same cause or matter. The issue in Prince was whether the Kienapple principle applied to bar the manslaughter proceedings. Dickson C.J. stated in "Prince," at p.491: "It is elementary that "Kienapple" does not prohibit a multiplicity of convictions, each in respect of a different factual incident. `Offenders have always been exposed to criminal liability for each occasions on which they have transgressed the law, and "Kienapple" does not purport to alter this perfectly sound principle. It is therefore a "sine qua non" for the operation of the rule against multiple convictions that the offences arise from the same transaction. [Emphasis added.]" Consistent with this statement, Martin Friedland states as follows in "Double Jeopardy (Oxford: Clarendon Press, 1969) at p.213: "Most courts agree that multiple convictions and punishments for violating the "same" statutory provision are permissible when each is brought about by a different physical act." In "Canadian Criminal Procedure, 4th ed. (Aurora, Ontario: Canada Law Book, 1984), Salhany states, at p.252, that a plea of "autrefois acquit" is grounded, not in the similarity of the facts giving rise to multiple prosecutions, but in the similarity of the offences, arising out of a single transaction, on which an accused is prosecuted: "It is provided under section 537(1) [now s.609(1)] that if the "matter" of the earlier charge is the same in whole or in part as the later charge, and if the accused might have been convicted of all offences on the earlier charge (assuming that all proper amendments had been made that could have been made) of which he may be convicted on the later charge, a plea of "autrefois convict" or "autrefois acquit" is applicable. `The term "matter" here refers to offences and not the facts. Accordingly, the true test is whether the two charges relate to offences which are similar and not whether the facts in both cases are similar.' [Emphasis added.]" What is clear, in my view, is that multiple prosecutions under the same statutory provision are permitted if each prosecution arises from a different physical act. An accused can be charged twice, for the same offence, if the charges arise from separate transactions. What is equally clear is that if an accused is convicted with respect to the first transaction, he or she cannot plead "autrefois convict" when charged with the second. What should be equally clear on principle is that if an accused is acquitted with respect to the first transaction, he or she cannot plead "autrefois acquit" when charged with the second. If the appellant Turmel had been convicted by Wright P.C.J. on the Baxter Road and St. Laurent Boulevard charges `before ' being tried by Lennox P.C.J. on the Carling Avenue charges, an argument before Lennox P.C.J. of "autrefois convict" would surely have failed, since accused persons are answerable to society for each occasions on which they transgress the law. Since a prior conviction could not ground an argument of "autrefois convict" on a later trial of the same charge arising from a new transgression, neither should a prior acquittal ground an argument of "autrefois acquit" on a later trial of the same charge arising from a new transaction. The pleas of "autrefois acquit" and "autrefois convict" should be treated as symmetrical; both pleas require that the previous verdict arise from the same transaction on which it is later purported to try the accused. I have not found an authority in which the principle of double jeopardy is expressed in these terms but on principle, it appears to me that the pleas of "autrefois acquit" and "autrefois convict" are the two sides of the double jeopardy coin. Both an acquittal and a conviction terminate the proceedings, and subject to remedies on appeal, each verdict is final and binding as between the citizen and the state. But the verdicts cover transactions past, not future. They do not preclude, "per se," other prosecutions. The acquitted citizen is in no better position than a convicted one if he or she should later break the law. This does not mean an accused is without remedy if he or she feels a prosecution following an acquittal amounts to harassment. As I have indicated, the court may rely on "stare decisis" to grant relief and, in a proper case, the remedy of a stay for abuse of process is available both at common law and under the Canadian Charter of Rights and Freedoms. The final obstacle to the appellant's double jeopardy argument is that there is some ambiguity whether Fontana P.C.J. and Lennox P.C.J. turned their minds directly to the issue whether winnings count as gains within the meaning of s.197(1)(a). This ambiguity must be resolved in favour of the respondent Crown because the principles of "res judicata" and "issue estoppel" apply only when an issue was clearly decided in a previous litigation. In R. v. Van Rassel, (1990) 1 S.C.R. 225, the Supreme Court of Canada rejected the respondent's argument of issue estoppel, at p.238-239: "The rule that a court should not rule on an issue that has already been decided by another court is a fundamental principle of our system of justice. The fact that a matter has already been the subject of a judicial decision may raise an estoppel against the party seeming to relitigate the matter. This is the principle of issue estoppel, and it too is related to the principle of "res judicata." Issue estoppel is recognized in Canadian criminal law: Gushue v. Queen (1980) 1 S.C.R. 798. The respondent suggests that issue estoppel could not apply with respect to a foreign criminal judgment since the parties involved are not the same. It will not be necessary to decide this point since it is well established that the principle applies only in circumstances where it is clear from the facts that the question has already been decided. Laskin C.J. wrote in "Gushue," at 807: "I am of opinion that the question of issue estoppel in respect of the robbery conviction is put to rest by the following statement, which I adopt, in Friedland, Double Jeopardy j(1969), at p.134: "The possibility or even the probability that the jury found in the accused's favour on a particular issue is not enough. A finding on the relevant issue must be the only rational explanation of the verdict of the jury."" Similarly, Salhany in "Canadian Criminal Procedures, supra, states at p.255: "Before issue estoppel can apply, the court must be satisfied that the issue sought to be estopped has been clearly and unequivocally decided by the court in the first proceeding as a fundamental step in the logic of the decision."" ISSUE (2) Whether the winnings from the game of blackjack constitute "gain" within the meaning of s.197(1)(a) of the Code. ADDITIONAL FACTS RESPECTING THIS ISSUE During the period covered in the information, the appellant kept the alleged gaming houses at Baxter Road and St. Laurent Boulevard. The scale of the gambling operations at these locations necessitated the employment of dealers, cashiers,and runners. At the St. Laurent Boulevard operations, which an undercover officer described as "a full-fledged casino," 18 to 20 uniformed employees were observed serving an estimated 75 to 100 customers. At the Baxter Road location, the officer saw seven blackjack tables, five of which were observed in operation at one time. The appellant admitted having 100 employees and monthly wage costs of $175,000 in January of 1993. Business was so good that eventually, the St. Laurent location casino operated 24 hours a day. The appellant made expenditures on advertising in print and by mail; on free bus transportation of patrons from Montreal, on the provision of free food and drink; and on video surveillance equipment. In an 18-day period covered by a police audit, over $26,000 was spent on promotions and $5,800 on food provided free to customers. The rent at the Baxter site was $500 per week and at St. Laurent Boulevard $2,500 per week. The appellant earned impressive revenues. In October 1992, the appellant stated that his net revenue from the Baxter operation was $20,000 to $30,000 per month. For January 1993,the appellant claimed gross revenues from his Ottawa casino of $600,000. He made between $350,000 and $450,000 per year from gambling. In his statement to police, the appellant's former general manager, Donald Cribbie, described the bonuses he received as a percentage of the casino profits. He conservatively estimated yearly profits of the combined operation at $1,000,000. A forensic audit over an 18-day period confirmed that weekly earnings after salary expenses were close to $25,000. The appellant's rules for blackjack provided that the role of the "bank" would be rotated to the players. Expert evidence was led that there is an "edge" associated with being the bank because hands that "go bust" [over 21] are forfeited to the bank and because the bank always plays last. While the player does have certain options not available to the bank, such as insurance and doubling down, the party holding the bank still has a theoretical edge of .88 percent -- assuming players are using the optimum strategy. In practice, given the varied level of skill among players, the average industry "drop" in favour of the house is 15 percent. Only if each can be the bank half of the time is the edge shared equally between the house and the players. The evidence was that the bank did not rotate form the house to the players in an equal manner, but only in a restricted manner that did not confer on the customers the full advantages that go with being the bank: the players could only be the bank against one player, namely the house (Mr. Turmel or one of his employees), not against a number of other players, which deprived the players of an advantage normally associated with being the bank: Turmel's rules obliged each player to be the bank only once in the evening, not fifty percent of the time; and the rules in question were only loosely enforced and the undercover officer who took the stand only infrequently observed a customer being the bank. Given the volume of gambling at issue in this case, the edge in practice retained by the house helped create substantial revenues for the appellant. Between $1,500 and $24,000 an hour was being wagered at the appellant's tables. Donald Cribbie stated: "The casino makes its money from the blackjack tables. It's what pays the bills. If you take out the blackjack tables you wouldn't make money. If you don't make money the casino wouldn't be there." ANALYSIS: The appellant took no issue with any of the above evidence. Indeed he proclaimed in this court that he was running the games to make "winnings," as he preferred to style his gains. While the evidence and the argument focused on the game of blackjack, the appellant readily conceded that he made money from all the card games played at his casinos. He was successful in consistently winning because he was an exceptional card player and, he argued, his "winnings" did not constitute "gains" under s.197(1)(a) of the Code. In his submission, so long as the operation of his casinos avoided the four pitfalls of the s.197(1)(b), he was committing no offence by being a winner because the Code proscribes indirect gains but not direct gains from the playing of the games themselves. He likened his operations to a situation where a person invites friends over for a game of poker, provides refreshments (free), and ends up with most of the pots. I agree with the Crown that the appellant's interpretation of s.197(1)(a) is much too narrow. It contemplates reading into s.197(1)(a) the word "indirect" to modify "gain." It would exclude "profit" from these business operations called casinos. It is quite true that almost all the published judgments deal with convictions respecting infractions of the four subsections of s.197(1)(b), but as the Crown points out, this is because historically that is the simplest method of prosecuting a keeper of a gaming house. I cannot accept that an operation of the magnitude of that described in the evidence before us does not constitute keeping a common gaming house for gain. If the appellant's argument is valid, prosecutions could only succeed under s.197(1)(b) where that specified conduct can be identified. The appellant's comparison between his operations and friendly poker games is of little assistance. There comes a point where a game ceases to be friendly and becomes commercial gambling, an activity prohibited by Parliament. I agree with the following statement from the factum of the Crown: "By restricting s.197(a) to indirect gains only, the gaming provisions of the Code would read down to mere prohibitions on casinos charging for drinks or parking. This would be contrary to the clear objective of the provision which is to restrict commercial gaming itself." This statement appears to be supported by authority, limited as it is on this specific point. In Rocker et al, v. Queen, (1978) 2 S.C.R. 704 the trial judge convicted the appellants of unlawfully keeping a common gaming house contrary to s.201(1) of the Code. The Ontario Court of Appeal dismissed the appellant's appeal. The issue before the Supreme Court of Canada was whether the term "common gaming house" in s.179 of the Code could be interpreted to permit a conviction where the premises in question were used for gaming on only one occasion. The majority of the Supreme Court reversed the Court of Appeal and overturned the convictions, holding in part that a business purpose test should not be imported into s.197(1)(b) of the Code because a business purpose test was already contained in s.179(1)(a). Estey J., writing for the majority, made clear that the test whether a place is "kept for gain" is a business purpose test. He stated at p.707: "It is reasonable, in my opinion, to import a business purpose test into the second definition in the face of the express words employed by Parliament in the immediately preceding portion of gain. that requirement has for many years been interpreted loosely as "kept for business purposes"..." Estey J.'s insistence that s. 197(1)(a) contains a business purpose test suggests that a place is "kept for gain" within the meaning of the section when the place is run as a commercial enterprise for profit. There is no distinction drawn in the Code or in the analysis of Estey J. between profit made indirectly form sales and profit made directly from winnings. The appellants in DiPietro v. Queen, (1986) 1 S.C.R. 250 were convicted of keeping a common gaming house contrary to s.201 of the Code. The appellants owned an establishment called "Corrado Billiards" where pool and cards were played and refreshments were sold. Customarily, the loser of the Italian card game of "scalaforti" would purchase coffee for the other players. The Ontario Court of Appeal dismissed the appellants' appeal from conviction. The Supreme Court reversed the Court of Appeal and overturned the convictions, holding that wagering, or the chance to win or lose money or money's-worth, was a necessary element of the offence of gaming, but the custom whereby the loser bought the winner's refreshments did not satisfy the wagering requirement. Referring to the definition of common gaming house, Lamer J. for the majority, stated at p.258 that the first two requirements of the definition, keeping a place and making a gain, were satisfied because "the appellants admitted that they are the proprietors of Corrado Billiards and that they profit from this "undertaking." "Profit from this undertaking" is a broad phrase that does not, unless read down, suggest that profit must be made indirectly from the sale of refreshments but not directly from the playing of the game. Consistent with the principles of statutory interpretation set out by the Supreme court of Canada in R. v. McIntosh, (1995) 1 S.C.R. 686, I see no reason to read down the plain meaning of s.197(1)(a) so as to interpret "gain" to include indirect gains but not direct winnings. DISPOSITION ON CONVICTION APPEAL For the reasons given with respect to issues (1) and (2), I would dismiss the appeal against conviction. The plea of "autrefois acquit" was not available and Wright P.C.J. was not bound by precedent to find that the appellant's version of blackjack was legal. He was also correct in his finding that the "casinos" in question were common gaming houses as being places kept for gain to which persons resorted for the purpose of gaming. ISSUE (3) Whether the sentence was fit. The appellant was given a suspended sentence and three years probation. He was ordered to pay a victim fine surcharge of $2,500 and to perform 200 hours of community service. He was prohibited from patronizing unlicensed gambling establishments and from associating with persons with criminal records. On an application to stay the sentence pending appeal, this court, on September 8, 1995, affirmed the terms of probation with the following variations: the prohibition on patronizing unlicensed gambling establishments was varied to a prohibition on illegal gambling, and the prohibition on associating with persons with criminal records was varied to a prohibition on associating with persons with criminal records was varied to a prohibition on associating with persons with records for gambling. In sentencing the appellant, Wright P.C.J. considered the following aggravating factors: the appellant's related criminal records, his recent 4-month jail sentence for gambling, the size of his proceeds from gambling, the evils of unregulated gambling in general, and the need for general deterrence. He considered the following mitigating factors: the appellant's co-operative attitude during the investigation and trial, his substantial volunteer and community work, his pledge not to set up other casinos, the fact that he is not a dishonest or violent individual, and the fact that this was a test case on the issue whether winnings count as gains under s.197(1)(a) of the Code. In this court, the appellant submits that the issues in this case are novel and his prosecution should be treated as a test case. I think the case is novel. On the other hand, the appellant was treated leniently. An operation of this nature could easily have attracted a custodial term, especially given that the appellant has previously been sentenced to jail for gambling. The sentence imposed by Wright P.C.J. properly reflects the mitigating factors. I am satisfied that the magnitude of the operation justifies the sentence imposed and that Wright P.C.J. committed no error in principle. I would revise the sentence only to the extent of giving effect to the changes to the probation order made by this court on September 8, 1995. Accordingly, I would grant leave to appeal sentence and allow the appeal to this limited extent. Finlayson J.A. Abella J.A.: "I agree." Austin J.A.: "I agree." -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!geac!gts!openstore!demon.uunet.ca!news.uunet.ca!hookup!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Sep 21 12:40:57 1996 Xref: elastic can.general:59298 can.legal:10742 can.politics:92291 Path: elastic!lethe!geac!gts!openstore!demon.uunet.ca!news.uunet.ca!hookup!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.general,carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Supreme Court of Canada Act & Rules Date: 18 Sep 1996 13:52:31 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 198 Sender: bc726@freenet5.carleton.ca (John Turmel) Message-ID: <51ouqv$onm@freenet-news.carleton.ca> NNTP-Posting-Host: freenet5.carleton.ca SUPREME COURT OF CANADA ACT Robin Hood Gaming House Appeal Relevant Sections: Section 40: (1) Subjecto subsection (3), an appeal lies to the Supreme Court from any final judgment of the highest court of final resort in a province where the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court. (2) An application for leave to appeal under this section shall be brought in accordance with paragraph 58(1)(a). (3) No appeal from the judgment of an indictable offence except in respect of a question of law or jurisdiction. Section 43: (1) An application to the Supreme Court for leave to appeal shall be made to the Court in writing and the Court shall (a) grant the application by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in the question, one that ought to be decided by the Supreme Court; (b) dismiss the application if it is clear there is no question involved as described in paragraph (a); and (c) order an oral hearing to determine the application in any other case. Section 58: (1) The following provisions with respect to time periods apply to proceedings in appeals: (a) in the case of an appeal for which leave to appeal is required, the notice of application for leave to appeal and all materials shall be served on all other parties and filed with the Registrar of the Court within 60 days after the date of the judgement appealed from. (2) The months of July and August shall be excluded in the computation of a time period referred to in subsection (1). Sections 60-64 for appeals SUPREME COURT OF CANADA RULES 4. The Court or a judge, or the Registrar when authorized by these rules, may excuse a party from complying with any of the provisions of the rules. 5. The Court or a judge, or the Registrar when authorized by these rules, may at any time extend or abridge the time for doing ay act or taking any proceeding. 12. A party to any proceedings may appear on his own behalf or by counsel. 15.4 A party shall cause his name and address for service to be entered in the court docket kept by the Clerk of Process. 16.1 Service of any document may be made by: (a) personal service (b) registered or certified mail or by courier; (c) facsimile of the document except for documents referred to in Rule 23 [Application for Leave to Appeal], Rule 33 [Case on Appeal], Rule 37 & 41 [Factums]. 16.2 Proof of service shall be verified by: (a) an affidavit of service in Form A; (b) a certificate of service by sheriff or bailiff; (c) an admission of service endorsed by party counsel; (d) an affidavit annexing: (i) a post office receipt or a receipt card bearing the signature of the person served; or (ii) a written admission of service by the person served by facsimile. 21.1 The style of cause shall be set out on the cover page of: (c) an application for leave to appeal; (d) a motion before the Court. STYLE OF CAUSE 21.2 The nbame of the applicant or appellant shall be set out fist with the designation "Applicant" or "Appellant" as the case may be followed by his status in the court of first instance. 21.3 Then shall follow the name of each party against whose interest the proceeding is launched followed by the designation "Respondent" and his status in the court of first instance. 21.5 The description of status in the court of first instance referred to in this Rule shall be in parentheses. 21.6 The status of a party in the Court of Appeal shall not be set out. MOTIONS BEFORE A JUDGE OR REGISTRAR 22.1 All motions before a judge or Registrar shall be brought by notice in writing in accordance with Form B and shall be supported by an affidavit and, when necessary, a concise memorandum setting out the submission in support of the motion. 22.2 There shall be no oral argument unles otherwise directed. 22.3 An application shall serve the motion and supporting material on all other parties and shall file the original and four copies with the Registrar. 22.4 A respondent may respond to the motion by serving and filing with the Registrar a concise memorandum setting out the submissions in response to the motion within 7 clear days after the service of the notice of motion and supporting material. 22.5 An applicant may serve and file with the Registrar a reply to a response within 3 clear days after service of the response. 22.7 The time periods may be extended or abridged by the Registrar. APPLICATION FOR LEAVE 23.1 An application for leave shall consist of the following documents assembled in the following manner and order: (a) a cover page on which shall appear, in the following order, (i) the title "IN THE SUPREME COURT OF CANADA", (ii) the name of the court appealed from, in parentheses, (iii) the complete style of cause as set out in Rule 21, (iv) a statement of the nature of the application and the section of the statute or rule on which the application is based, (v) The names, addresses, telephone numbers and fax numbers for counsels for the parties on the left and their respective agents, if any, on the right; (b) a complete table of contents chronologically indicating the dates of listed materials, including appendices, and the page numbers at which they commence; and (c) the following documents in the following order, namele, (i) a notice of application for leave in Form B.1. (ii) an affidavit in support of the application for leave, if required, (iii) the materials that the party intends to rely on, in chronological order, (iv) all formal judgments and the respective reasons for judgment. (v) a memorandum or argument not exceeding 20 pates in length, unless otherwise ordered by a judge or the Registrar, and signed by the party appearing in person which memorandum shall be divided into 5 parts as follows, namely, Part I: a brief statement of facts, Part II: a concise statement of the points in issue, Part III: a brief statement of argument, Part IV: the nature of the order requested, Part V: a table of authorities arranged alphabetically, together with a reference to the pages in the argument where they are cited, and (vi) copies of the relevant sections of the statutory enactments the party intends to rely on set out as appendices to the application for leave. (2) Paragraphs in Parts I to IV inclusive shall be numbered consecutively. (4) Where materials are reproduced in the appeal book filed with the court appealed from, that appeal book may be filed with the Registrar in lieu of the documents unless otherwise ordered by the Registrar. (5) All materials shall be prepared in accordance with Rule 33 and subsection 39(4), with such modifications as the circumstances require, unless otherwise ordered by the Registrar. (6) The respondent may file with the Registrar a response prepapred in accordance with subsections (1) to (5) with such modifications as the circumstances require. (7) The applicant may file with the Registrar a reply to the respondent's response that does not exceed 5 pates in length, unless otherwise ordered by the Registrar. (8) The color of the application for leave and of the reply shall be grey and that olf the response shall be green. (9) The Applicant shall file 5 copes of the application for leave except that where an appeal book is filed in accordance with subsection (4), 3 copies of the appeal book may be filed. (10) An applicant shall serve and file the application with the Registrar within the time set out in paragraph 58(1)(a) and subsection 58(2) of the Act. (11) The Respondent shall, within 30 days after the Sorry, gotta go. jct: -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada 111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Abolish Interest Rates From elastic!lethe!geac!onramp.ca!news2.insinc.net!news.intranet.ca!news.flora.ottawa.on.ca!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sat Nov 2 16:52:12 1996 Xref: elastic can.general:63234 can.legal:11524 can.politics:100665 Path: elastic!lethe!geac!onramp.ca!news2.insinc.net!news.intranet.ca!news.flora.ottawa.on.ca!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: carleton.public.general,can.politics,can.general,can.legal,ott.general,carleton.alumni,rec.gambling.poker,rec.gambling.misc,alt.gambling Subject: TURMEL: Casino Turmel: Supreme Court of Canada Appeal Date: 1 Nov 1996 08:10:25 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 1058 Sender: bc726@freenet6.carleton.ca (John Turmel) Message-ID: <55cb9h$cst@freenet-news.carleton.ca> NNTP-Posting-Host: freenet6.carleton.ca TURMEL: Casino Turmel: Supreme Court of Canada Appeal Take note that this is not the appeal of the case with all possible arguments made. This is an application for leave to appeal and make those arguments. For that reason, I've concentrated on all the smelly things about the case hoping to show that this is something that should be further looked into. This is not as carefully edited as most of the other documents. There were so many different objectionable points made by so many judges and Crown's that getting it organized into a presentable form was a major project. Here's how I organized it. For several days, I tagged every argument and important statement from my Appeal Factum, the Crown's Appeal Factum, the Appeal hearing whose transcript I only can refer to because I taped it while no one else did, and the Appeal Court's decision. Then I culled out all the tags into a Table of Contents and started moving the arguments around for several days. When it seemed that a structure had been laid out, at midnight on the morning of Oct 31, I started calling in the blocks of text and by the morning, everything had fallen into place. I did a spell check but didn't have the time to proof it in any other way so please expect more than the usual number of errors. I put together a case book with all the judgments and information necessary which was bound into a 235 page Application. I served the Ottawa Crown and got it filed in the Supreme Court of Canada 2 hours before closing. It's funny but it's amazing how many of my legal cases get filed within the last two or three hours before any deadlines. It's almost as if the preparation expands to take all the time available. I mull and mull and then on the last day with no more mulling allowed, I organize the cards in my hand and cast the die. I know this technique leaves one open to catastrophic or inconvenient consequences if an error should be present which debars the case from being filed but I haven't had this happen more than once or twice in 16 years and even when one screws up, one can always apply for an extension of time and having the prepared case in hand ready to be filed is always most persuasive to courts. So, here it is. My final appeal to the highest authority in our land. If this crew finds that nothing needs correcting, at least I'll have the satisfaction of knowing that I fought back to the best of my ability and the highest court in the land had to okay a real abuse of process. ********** IN THE SUPREME COURT OF CANADA (Appeal from the Court of Appeal for the Province of Ontario) Between JOHN C. TURMEL Appellant (Defendant) - and - HER MAJESTY THE QUEEN (Respondent) NOTICE OF APPLICATION FOR LEAVE TO APPEAL TAKE NOTICE that the applicant will apply for leave to this Court pursuant to Section 40 of the Supreme Court of Canada Act to appeal in forma pauperis conviction of the Appellant for keeping a common gaming house upon the questions of law and jurisdiction or such order as this Court may deem appropriate. AND FURTHER TAKE NOTICE that the following documents will be referred to in support of such application for leave: 1988 Feb 23, Bayshore Hotel Raid Information 1989 Apr 03, Bayshore Found-ins acquittal judgment 1989 Apr 07, Bayshore Statement of Agreed Facts 1989 Apr 07, Bayshore Keeper acquittal judgment 1993 Jul 13, Topaz Plaza Raid Information 1993 Nov 26, First Double Jeopardy Judgment 1994 Feb 23, Topaz Statement of Agreed Facts 1994 Feb 25, Second Double Jeopardy Judgment 1994 Mar 23, Third Double Jeopardy Judgment 1994 May 16, Topaz Keeper Conviction 1995 Mar 31, Topaz Keeper Sentencing 1995 Apr 18, Topaz Notice of Appeal 1995 Sep 08, Appeal Keeper Sentence variation 1996 Aug 13, Appeal Keeper Dismissal and such further or other material as counsel may advise and may be permitted. AND FURTHER TAKE NOTICE that the said application for leave shall be made on the following grounds: 1) Conviction is inconsistent with a previous acquittal on the same facts for the same activity. 2) Conviction is contrary to the doctrine of strict interpretation of criminal statutes. 3) Punishment for a novel expanded interpretation of criminal statutes is unjust. Dated at Ottawa on Oct. 31, 1996. For the Appellant: John C. Turmel, B. Eng., 111-1505 Baseline Rd., Ottawa, ON, K2C 3L4, Tel/Fax: 613-723-2739, Email bc726@freenet.carleton.ca TO: THE REGISTRAR OF THIS COURT: AND TO: Ontario Attorney-General Office: Ottawa Courthouse, 161 Elgin St. Ottawa, ON, Tel: 613-239-1200 NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in reply to this application for leave within 30 clear days after service of the application. If no reply is filed in that time, the Registrar will submit this application for leave to the Court for consideration pursuant to section 43 of the Supreme Court Act. SOR/94-748, s.3. ********** IN THE SUPREME COURT OF CANADA (Appeal from the Court of Appeal for the Province of Ontario) Between JOHN C. TURMEL Appellant (Defendant) - and - HER MAJESTY THE QUEEN (Respondent) MEMORANDUM PART I: FACTS 1. On Feb 23 1988, the Ottawa Police raided a game of U-bank Blackjack at the Bayshore Hotel in Ottawa and charged John and Ray Turmel with keeping a common gaming house and keeping a common bookmaking house. Also charged were Tasso Paliovarkas, Gene Lo, and David Booth with being found-ins in the gaming and bookmaking houses. 2. Unlike all other Criminal Code sections where the accused is presumed "Innocent until proven guilty," in the case of Disorderly Houses, - gaming, betting and bawdy houses - there is a reverse onus where the accused is presumed "guilty until proven innocent." If a police officer walks in and finds betting slips, you're guilty until you prove that you weren't a bookmaking house. Reverse onus. If a police officer finds you gambling with a deck of cards, you're guilty until you prove that you were not a gaming house. Reverse onus. 3. On Mar 29 1994 at the trial of found-ins Dave Booth, Gene Lo and Tasso Paliovarkas, John Turmel was the Crown's expert witness in the Mathematics of Gambling and explained how Mutual Exclusivity applied. Players were instructed to admit: "I bet, I called, I played, I banked, no rake-off and no fee, I won, I lost, I tipped with always chips, no GST. 4. Judge Fontana first ascertained under section (a) if Tasso, Gene or David had bought anything? "No GST." Only gambling money came out of our wallets. Then Judge Fontana checked into the gambling under section (b) of gaming house definition and asked: - if they'd been "excluded from being the bank?" No. "We played, we banked" against John or Ray up to half the time. - if they lost any chips to a rake-off?" "No rake-off." - if they lost any chips "to a fee?" "No fee." - if they were at any kind of disadvantage at all? No. "We played, we banked," up to half the time and by the statistical law of "mutual exclusivity," as long as all could bank half the time, it didn't matter whose chips anyone tried to win to guarantee a fair 50:50 game. 4. After the Crown had rested its case, the Defence moved for a directed verdict of acquittal on the grounds that there was no evidence of the presumption that any of the five gaming house definitions had been violated. Judge Fontana reserved his decision to April 3. 5. On Mar 31 1989 at the trial before Judge Lennox of the keepers, John and Ray Turmel, the Crown drafted a Statement of 19 Agreed Facts signed by both parties. After the Crown had rested its case, the Defence moved for a directed verdict of acquittal on the grounds that there was no evidence of the presumption that any of the five gaming house definitions had been violated. Judge Lennox reserved his decision to Apr 8 after the Apr 3 decision of Judge Fontana. 6. On Apr 3 1989, Ontario Provincial Court Judge Fontana granted the motion for a directed verdict of acquittal of Tasso Paliovarkas, Gene Lo and David Booth after listing the evidence and ruling (p9- "- refreshments were available but there was no charge for them, - there was no fee to enter the game, - there was no percentage or rake-off, - a player exercised his right to be dealer.(page9) Common gaming house is defined in five ways. On the evidence alleged by the Crown and accepting the testimony presented on behalf of the Crown by Mr. Turmel, the operation in this occasion clearly does not fall into the first four categories: - a place kept for gain, or for playing games where - the bank is held by one or more but not all players, - there is a rake-off charged, - there is a fee charged. Clearly, none of these four criteria apply. If the operation is to be caught, it must be caught with respect to subsection four.(page 12) The opportunity to be the banker\dealer was available to all players who participated in the game.(page 15) The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section."(page 16) 7. There are only 5 illegal ways for money to leave a found- in's wallet in an illegal common gaming house and Judge Fontana had ruled that none of those 5 illegal flows had taken place playing Blackjack according to Turmel-style house and game rules. The charge of keeping a common bookmaking house was withdrawn because illegal card-playing is a gaming offence, not a bookmaking offence. 8. On April 8, 1989, after being presumed guilty of keeping a common gaming house by the same reverse onus, Judge Lennox found that given Judge Fontana's judgment that there had been no illegal flows from the found-ins wallets, there could be no illegal flows into Turmel's wallet and adopted the reasons of Judge Fontana to direct a verdict of acquittal of this unique uncommon gaming house. 9. The Crown did not appeal and has never chosen to try to overturn those trial acquittals at the appellate court. 10. Being found innocent after facing the reverse onus is far more powerful than remaining innocent after facing the Crown onus. My acquittal brought me back all the way from the black of "presumed guilt" whereas the ordinary acquittal leaves the accused at the white of presumed innocence. I had to use an offensive defence while the usual accused uses a purely defensive defence. 11. On Feb 28 1992 I alerted the police I was moving my Turmel's Games Room to the Baxter Rd. Plaza and expanded to 5 U- bank Blackjack tables and 2 Poker tables with 14 employees. After 8 months, on Nov 14 1992, I alerted the police I was moving to the Topaz Entertainment Plaza on St. Laurent Blvd. in Ottawa with 20 U-Bank Blackjack tables and 7 no-rake-off Poker tables served by 122 staff. As news of such a large uncommon gaming house in a city being being denied its own casino by the Province of Ontario, political pressure mounted to close me down. 12. On Mar 23 1993, after learning the Crown was simply going to re-charge me again rather than file an appeal, I filed an application before Justice Finlayson of the Ontario Court of Appeal to extend the time for the Crown to appeal as the proper route for the Crown to be taking to answer the question with a minimum of inconvenience and possibility of violating gamblers' rights. Judge Finlayson ruled that I could not initiate an application to extend the time for the Crown to appeal as only the Crown could initiate such an appeal from an acquittal. And the Crown did not want to appeal those acquittals. 13. On July 13 1993, with the acquittals of Judges Fontana and Lennox still not overturned, Ottawa Police launched the "Project Robin Hood" raid on Casino Turmel at Topaz Plaza. Added to the common gaming house charge was not only the common bookmaking house charge under Section 201(1) which had been withdrawn in 1989 but also two new bookmaking offences: "being in the business of bookmaking" under section 202(1)(c) and "controlling monies from bookmaking" under Section 202(1)(e). I stood mute at my plea. 14. Though there was no change in the operations of the games, there was a change in the information which the new court was going to hear. Since a judicial ruling on the legality of the found-ins losses had hindered the past prosecution, they solved that problem by not charging any found-ins. While the innocence the winnings was easily seen by Judge Lennox after Judge Fontana had looked into the losses, that innocence was harder to prove when the next judge was only going to looking into the winnings. This is the first instance of the Crown stacking the deck. 15. On Oct. 3, 1993, David Booth was charged with keeping a "2-Man U-Bank Blackjack" game and Gene Lo was once again charged as one of the found-ins playing with him. 16. On Oct 22, Mr. Lo and 3 other found-in accused appointed me as their legal agent to represent them on this summary conviction offense and I was going to get the chance to prove once again that from the found-ins simple point of view, none of the five illegal flows of money came out of their wallets in Turmel-style Blackjack. 17. On Nov 15, 1993, I raised the Canadian double-jeopardy special pleas of Autrefois Acquit, Issue Estoppel and Abuse of Process for John Turmel (formerly-acquitted keeper and currently- charged keeper), David Booth (formerly-acquitted found-in and currently-charged keeper) and Gene Lo (formerly-acquitted found- in and currently-charged found-in) before Ottawa Provincial Court Judge Peter Wright. As the pleas were all based the Lennox and Fontana decisions, the Crown had argued they should be heard together. Another motion sought to quash the bookmaking charges because case law placed playing cards under a gaming, not bookmaking, offence. 18. Judge Wright permitted Gene Lo a statement: "Court: "Mr. Lo, do you have anything you would like to add?" Lo: Yes. I was acquitted of the charge of playing Blackjack, or 21, in 1989 by Judge Fontana. I was playing with John Turmel. And when I was playing at Dave's place, it was the same set of rules, it was the same game that I had before. Being acquitted, I thought that what I was doing was right. And I wasn't breaking any law because the game house had changed. It was the same set of rules, the same set of circumstances. I can be the bank. I had the same advantages that the house has and I was charged again for the same offence. And this is why I am here today, to plead my case, that I shouldn't be charged again for the same thing that I was acquitted on. 19. Judge Wright declined jurisdiction in the cases of Gene Lo and David Booth and reserved his decision. 20. Defence cited in support: R. v. Carrier (1951) 104 C.C.C. p75 Que K.B., R. v. Wright (1965) 45 C.R.38 R. v. Jewitt (1985) 2S.C.R. S.C.C. R. v. Boross (1984) 12 C.C.C. (3d) p480 Alta C.A. R. v. Grdic, (1985) 19 C.C.C. (3d) S.C.C. R. v. Keyowski (1988) 40 C.C.C. (3d) p481 R. v. Rourke (1978) 1 S.C.R. p1021 R. v. Young (1984) 40 C.R. (ed) p289 Connelly v Dir. Public Prosecutions, (1964) AC1254(H.L.) Deserted Wives Maintenance Act (1948) 1W.W.R.680 B.C.PolCt. Montreal v. Rothman Realty (1965) R.L.214, 441C.R.372 21. The Crown argued double jeopardy did not apply because: a) it was a new offence at a new time and new place making the matters different: b) Judge Fontana had not dealt with section (a) which was therefore open to be litigated now; c) the evidence was different. 22. On Nov. 26, 1993, Provincial Court Judge Peter Wright ruled: "Mr. Turmel very emphatically contends that the facts are the same, however the Court must decide these issues on the basis of evidence which is presented in the absence of evidence, I find that the application of Mr. Turmel, although, perhaps, premature, must be denied." 23. The motion to quash the bookmaking charges was also denied. 24. On Feb 7 1994, my motion before Judge Wright to quash the bookmaking charges was put off to the trial. 25. On Feb 24 1994, the Crown withdrew all three bookmaking charges but Judge Wright denied Defence Attorney Matt Sagle's request for costs to cover the needless preparation of defence to those spurious charges. The Crown entered our joint Statement of Agreed Facts identically worded to the 19 Agreed Facts in the 1989 Statement of Agreed Facts. 26. On Feb. 25, after the Crown had presented no evidence of any changes in the operations of the establishment which had not been admitted in both the 1989 and 1994 Statement of Agreed Facts, Defence again raised the double jeopardy pleas on the grounds that the nineteen 1993 Agreed Facts were indeed congruent with the nineteen 1989 Agreed Facts which had resulted in acquittal and no new interpretation of law was allowed other than by the Ontario Court of Appeal. The motion was dismissed by Judge Wright who ruled: "The plea is not founded upon evidence which the court has before it."(page 73) 27. Then I filed a notice of motion for relief sought under the Charter of Rights to remedy violations of the following rights: Section 2: to peaceful assembly and association; Section 6: to gain a livelihood; Section 7: to not suffer double jeopardy; Section 8: to not suffer unreasonable search and seizure; Section 9: to not be arbitrarily detained; Section 11a: to be informed of the specific offence; Section 11d: to be presumed innocent; Section 11h: to not be tried again if finally acquitted; Section 12: to not be subjected to cruel and unusual treatment; Section 15: to be equal before and under the law. The motion was denied. 28. The Crown sought to present evidence of the gambling. Defence objected that the game details had been admitted in the Statement of Agreed Facts whose main purpose was to dispense with evidence of agreed facts and that more evidence on the games would be superfluous. Nevertheless, the Crown was permitted to enter the evidence about the admitted games. 29. The Crown was permitted to enter detailed forensic accounting evidence on the amount of the admitted gambling winnings and amount of the tab even though Defence cited the R. v. James case: "The question of what is keeping it for gain ought not be embarrassed by the amount." 30. The Crown was permitted to enter detailed forensic accounting of the tab expense house losses like rent and refreshments as a proof of gain. Defence argued they were proof of loss and their totals were irrelevant. 31. When the Crown rested its case with no fresh evidence of any change in the operations which had been admitted and no evidence of any vending gains and only evidence of gambling winnings and tab losses, the Defence moved for a directed verdict of acquittal. There was a history of acquittals under (a) if there were no sales and a history of convictions under (a) only if there were sales: R. v. Bampton (1932) 58 C.C.C. p289 R. v. Bertrand (1918) C.C.c. XXXI p2 R. v. Cherry and Long (1924) 42 C.C.C. p137 R. v. DiPietro (1986) 25 C.C.C. (3e) p100 (S.C.C.) R. v. Fong (1923) B.C.R. p238 (B.C.) R. v. Irwin (1982) 1 C.C.C. (3d) p212 (Ont.C.A.) R. v. James (1903) 7 C.C.C. p196 (Ont.C.A.) R. v. Karavasilis (1980) 54 C.C.C. (2d) p530 R. v. Kerim (1963) S.C.R. p125 (S.C.C.) R. v. Lemaire (1929) C.C.C. LI p137 R. v. Ley (1912) 20 C.C.C. p170 (S.C.A.) R. v. O'Meara (1915) 25 C.C.C. p16 (Ont.C.A.) R. v. Pare j(1987) 38 C.C.C. (3e) p97 (S.C.C.) R. v. Radinsky (1929) C.C.C. LII p131 R. v. Riley (1916) 26 C.C.C. p402 (B.C.C.A.) R. v. Sala (1907) C.C.C. XIII p198 R. v. Saunders (1900) C.C.C. III p495 R. v. Sullivan (1930) 53 C.C.C. p243 R. v. Tatti (1965) 4 C.C.C. p268 (Ont.C.A.) R. v. Wong (1922) 40 C.C.C. p311 (B.C.) R. v. Lefrancois (1981) 63 C.C.C. (2d) p380 (Que.C.A.) in particular: "The notion of gain necessarily implies that the amount paid to the vendor must exceed the cost of the items sold." 33. The notion of winning necessarily does not imply an amount paid to a vendor. There are no vendors at the gaming tables. It necessarily implies a pot awarded to the winner. All the cases under (a) dealt with amounts paid, never amounts won. 34. The Defence pointed out that when subsection (a) states "keep for gain to which persons resort for the purpose of playing games," it mentions both the act of "gaining" and the act of "playing" in very same sentence which suggests the legislators intended the distinction between the act of selling for gain and the act of playing for win. Defence pointed out the many clear historical distinctions between gaining under (a) and winning under (b): (a) versus (b) Word "gain" is used Word "play" is used Gain from the house Gain from the game Indirect from game Direct from game From commerce From gambling By sales By skill At the stock room At the card table In currency In chips Registered at cash register Registered at chip tray With GST Without GST Due to presence of game Due to play in game Independent of game Dependent of game 35. The last two distinctions have to do with the words in section (a): "to which persons resort for the purpose of playing games." This indicates that keeping a place for gain to which persons do not resort for gambling is lawful. Such gain is legal before and after people resort thereto for the purpose of playing games and only becomes illegal when persons arrive to gamble. Subsection (a) gain has to be coming out of the house so that the presence of the gamblers increases that gain. 36. There is no case law to show that a professional card- player's lawful winnings from the game has ever been prosecuted as unlawful gain under subsection (a) as OPP constable Young admitted on page 107 of the Mar 20, 1995 transcript: "The argument that was going to be made was gain from the game rather than from gain from the extras that were surrounding the game." "As Turmel pointed out during the trial, there is no case law on that." 37. Instead, the Crown cited Black's Law Dictionary to show that gain should include winnings. Defence argued that the doctrine of strict construction of criminal statutes required the court to adopt the interpretation most favourable to the accused. Ignoring the historical limits set by case law to use the maximal number of definitions in a dictionary is the anti-thesis of strict construction of statutes. 38. On Mar 4 1994, the Crown withdrew the charges against all my found-ins and no new judgments on found-in losses were going to be obtained. 40. On Mar 18 1994, having never pleaded, I again invoked the special plea of issue estoppel which prohibits inconsistent verdicts on the same facts hoping Judge Wright had seen that there was no evidence of any change in the operations given the 1994 Statement of Agreed Facts he was reading was almost word for word identical to the 1989 Statement of Agreed Facts given to Judge Lennox. 41. I argued that Judge Fontana's and Lennox's decisions which had dismissed all five definitions had to have been overturned before a brother judge could be contemplating a different conclusion on a set of facts where there was no fresh evidence of any change. 42. On Mar 23 1994, Judge Wright ruled on page 2: "I can indicate that on a basic level, I have to agree with you that the facts are largely the same in relation to the game: the rules are as you described in an earlier date in court, the structure." "In my view, for issue estoppel to apply, the Court must also be satisfied that the issue is the same or that the issue is substantially the same. Here, it would appear to me that the issue is a fairly narrow one and that issue is the meaning of "gain." It would appear that the issue of gain is not one which has been addressed, at least directly, in the previous cases to which references have been made. And therefore, I find the doctrine is not applicable here." 43. On May 16, 1994, despite no evidence of any change in the operations of the establishment,(Mar 31, 1995 p123), Judge Wright convicted me of keeping a common gaming house under Section (a) ruling: "Reference has been made to the decision of my brother judge, Judge Fontana, in R. v. Booth which decision I have read and agreed with. Were the Crown proceeding under (b), it follows that in accordance with the Booth decision, I would enter an acquittal based on the facts that are before me. The Crown proceeds today on a different definition and that is the definition found under (a)." "There is no evidence of any indirect gain or income whatsoever, only from the business of gambling directly." "If the charge against Mr. Turmel turns on the meaning of the word "gain", does gain include winnings?" "I conclude that gambling income does come within the meaning of (a), and I must conclude that the charge is proven, and there will be a finding of guilty." 44. On Mar 10 1995, Tasso Paliovarkas was charged with being found-in a common gaming house being kept by Ray Turmel in Hull and has appointed John Turmel as his prosecutor agent. 45. On Mar 31, 1995, Justice Wright sentence the Appellant to 3 years probation with the condition not to gamble in any unlicensed establishment after ruling: "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 46. On Sep 8 1995, the Ontario Court of Appeal, unaware that formerly lawful gambling winnings were now to be convicted under a new interpretation of the word "gain," varied that condition ruling: "There's no difference gambling in a licensed premises and gambling in your own house which he's now prevented from doing." "The condition limiting the Appellant to gambling in licensed establishments will be deleted and replaced with the condition that he not participate in any illegal gambling." 47. On Aug 13 1996, the Ontario Court of Appeal sustained the Appellant's conviction which is the subject of this appeal. PART II: POINTS IN ISSUE 48. A) Judges Fontana and Lennox's strict interpretation of section (a) is historically correct and Judge Wright's novel expanded interpretation of section (a) is a usurpation of Parliamentary prerogative by violating the doctrine of strict interpretation of criminal statutes. 49. B) Judge Lennox's decision to apply Judge Fontana's ruling on found-in losses and follow the judgment was correct and Judge Wright's decision to risk a contradictory judgment by trying the same set of facts was a violation of the doctrines of autrefois acquit, issue estoppel and res judicata. 50. C) A fine and supervised penal servitude are uncalled for where a former acquittal precludes criminal intent and where the conviction results from a novel interpretation of a criminal statute. PART III: STATEMENT OF ARGUMENTS: A) GAIN 51. Where Judge Fontana ruled that the premises were "not kept for gain," Judge Wright ruled that the premises were "kept for gain." 52. Where Judge Fontana ruled: The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section."(page 16) 53. Where the Court of Appeal on Sep 8 1995 varied the condition of my probation so that I could make my living by playing cards at home, Justice Labrosse had stated: "There's no difference gambling in a licensed premises and gambling in your own house which he's now prevented from doing." "We're all agreed that the two conditions of probation are too broad in the circumstances of this admittedly unique case. The condition limiting the Appellant to gambling in licensed establishments will be deleted and replace with the condition that he not participate in any illegal gambling."(page 141) 54. Yet, on Mar 20, 1994, Judge Wright stated: "I have addressed that issue and the application that it might have even to a home if kept for the purpose of gain."(page 156) "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 55. Where Judge Fontana ruled that Turmel's winnings were not contemplated by the section, Judge Wright ruled that Turmel's winnings were contemplated in the section. 56. Where Judge Fontana ruled that playing at U-Bank Blackjack with the option of banking half the time is 50:50 fair, Judge Wright has ruled that playing at U-Bank Blackjack is still 57. Where Judge Fontana ruled that evidence of a bank edge when the bank could rotate is irrelevant, Judge Wright allowed such evidence to be entered as relevant. 58. Where Judge Fontana treated Turmel-style Blackjack is neutral like Poker, Judge Wright has treated it as not neutral like Poker. Winnings of $150,000 at Blackjack were objected to but winnings of $250,000 at Poker were not. 59. Where Judge Fontana ruled that not being able to play with anyone but the host was "of no consequence" due to Mutual Exclusivity, Judge Wright ruled that being forced to play only with the host at 50:50 fair game was of consequence. 60. Where Judge Fontana treated Indirect gain versus Direct gain as the significant distinction between sections (a) and (b), Judge Wright ruled that Indirect gain versus Direct gain is not a significant distinction." 61. Where Judge Fontana used a strict interpretation of section (a) to indirect gains from the house based on a history of case law, Judge Wright's expanded the interpretation to direct gains from game based on a dictionary. 62. The syntax of the section also includes an indicator that gaining at commerce was to be held as different from winning at the game. the section reads: "a place kept for gain to which persons resort for the purpose of playing games." 63. By mentioning both gain and playing games in the same sentence, it is submitted that gain is therefore not a product of playing games. 64. The Court of Appeal found that the historical interpretation was too narrow and allowed the expansion to the plain meaning of gain as winnings from the dictionary. 65. Where Judge Fontana dispensed evidence of admitted facts as superfluous, Judge Wright allowed evidence of admissions to be entered. 66. Where Judge Fontana dispensed with accounting of admitted expenses, Judge Wright allowed evidence of these admissions to be entered. 67. Where Judge Fontana dispensed with "How well found-ins played" as irrelevant, Judge Wright allowed evidence of how well they played to be entered. 68. Where Judge Fontana had no interest in "How well Turmel played," Judge Wright allowed evidence of how well I played. 69. Where Judge Fontana had ruled that the accounting of found-ins' losses" was irrelevant, Judge Wright ruled that the accounting of Turmel's winnings was relevant evidence to be entered. 70. Where Judge Fontana had no interest in which banks the found-ins' losses were deposited into, Judge Wright found that which banks Turmel's winnings were deposited to be relevant evidence. 71. The Court of Appeal ruled that the magnitude of my winnings constituted keeping it for gain despite R. v. James: "The question of what is keeping it for gain ought not be embarrassed by the amount." 72. The Court of Appeal in citing R. v. Di Pietro said that the business purpose test which had been applied to the sales of coffee should also be applied to the winning of pots. All the cases cited dealt with sales of refreshments. 73. Repeatedly, the Court stated that the objective of the law was is to restrict business of gambling. Repeatedly, the Appellant pointed out that the legislators had not outlawed the business of gaming like they had outlawed the business of betting. 74. At the appeal, Justice Austin noted: "What you're saying if I understand it is that the first time around, the Crown objective was not to demonstrate that he was running a business. 75. Judge Fontana's objective was to find out if I was running a common gaming house, not a business. 76. All of the evidence had been admitted in the Statement of Agreed Facts. There were no factual disputes. Once Judge Wright had concluded that "there was no evidence of any change in the operations," they were the same facts and new evidence of the same admitted facts was completely superfluous. The Crown noted that the case rested on statutory interpretations and the Defendant had admitted all the elements of the offence. What possible new evidence of the same facts can be relevant? 77. Where a judgment on the same facts from another angle with no confusing and extraneous accounting evidence gave Judge Lennox a binocular perspective, without such a judgment, Judge Wright was limited to a monocular perspective. 78. Where Judge Fontana ruled found-ins had to worry about 5 money flows out of their wallets, Judge Wright has ruled that they have to worry about a sixth illegal flow into mine. 79. With the upcoming Dec 10, 1996 trial of found-in Tasso Paliovarkas will be the opportunity to have the question of found-in losses determine the question of whether players of Turmel-style Blackjack have to worry about a sixth way of spending their money. B) ISSUE (2) DOUBLE JEOPARDY 80. Where Judge Lennox accepted Judge Fontana's ruling that none of the 5 gaming house definitions applied to the same facts, Judge Wright ruled that one of the 5 definitions does apply to the same facts. 81. Where Judge Lennox ruled that he would not hand down an inconsistent or contradictory verdict on the same facts and had to follow Judge Fontana on all five sections, Judge Wright has handed down an inconsistent and contradictory verdict on the same relevant 19 facts after ruling that he ruled that Judge Fontana had not dealt with the proper interpretation of section (a) and he didn't have to follow Fontana on (a). 82. Clearly, Judge Fontana dealt with all five sections and the proper interpretation of gain. 83. In R. v Wright (1965) (1965)3CCC160 affirmed (1963)1CCC254 on page 338 and 339: "The doctrine of issue estoppel springs from the reluctance of the courts to permit inconsistency of verdicts." "There is issue estoppel if it appears that the same point was determined in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. The allegation of the crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding." 84. In Connelly v Dir. Public Prosecutions, [1964]AC1254(H.L.) on page 1259: "The authorities show that the courts have applied the doctrine to cases where a conviction on a second indictment would be inconsistent with acquittal on the first." "As a general rule a judge should stay an indictment when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment or are part of a series of offences of the same or a similar character as the offences charged in the previous indictment." 85. In R. v Grdic, 19CCC3d(SCC) on page 289: "The Crown was not allowed to re-try except if there was fresh evidence... Unless it can be shown the subsequent prosecution is an attempt by Crown to re-try the accused, the preferable policy is to exclude issue estoppel. "If to prove the allegation the Crown is merely tendering the same evidence as that tendered previously, then issue estoppel will survive the attack because the Crown's allegation, is in disguise, but a re-litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." Indeed, another judge is invited to reconsider the same evidence and conclude differently. This can only be done through the appeal process finding reversible error resulting in the ordering of a new trial before a different judge." 86. From the moment it became obvious that the facts were the same as in the other two cases, this court could not have jurisdiction as the Crown was therefore "merely tendering the same evidence as that tendered previously, in disguise, but a re- litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." 87. Indeed, His Honour Judge Wright was put in the position of being invited to reconsider the same evidence and conclude differently which can only be done through the appeal process finding reversible error in Judge Fontana's decision and resulting in the ordering of a new trial before a different judge. 88. The Court of Appeal accepted that there was no double jeopardy because the offences took place at different times and locations; 89. The Court pointed to all the cases which showed that autrefois acquit does not apply to a second criminal act at a different time and place. The Court cited R. v. Riddle, an assault, R. v. Prince, a stabbing, R. v. Kineapple, manslaughter, Van Rassel, robbery. 90. The Court pointed out that the complement of autrefois acquit, autrefois convict, did not protect someone formerly convicted of a criminal act from prosecution for a new criminal act and ruled that autrefois acquit and autrefois convict do not apply to future offences. 91. I had argued that there was a difference between an acquittal or conviction for doing a criminal act and an acquittal for being a criminal behavior when that acquittal has been obtained on the essential basis of the existence or non-existence of a right. 92. I had cited R. v. Carrier where a pamphlet was alleged to be seditious at two different times and places and was judged to be protected by autrefois acquit. 93. In particular, I CITED Montreal v. Rothman Realty where an apartment building had been acquitted of being an illegal rooming house. When that apartment building was charged anew, the judge ruled that since there was no evidence of any change in the operations of the house, the different date of the second charge was not relevant and autrefois acquit applied to an unchanged house. 94. The Court of Appeal concluded that Carrier and Rothman were really more cases of stare decisis than autrefois acquit, that the previous acquittals were merely persuasive and that Judge Wright was not bound to look at section (a) in the same way as Judge Fontana and not bound to acquit. 95. Stare decisis is the doctrine of following precedent usually set by higher courts where the two parties are not the same and David Booth could have certainly argued that the Turmel Keeper acquittal before Judge Lennox was stare decisis for his charge of keeping a gaming house. 96. Yet, autrefois acquit is the plea when the two parties are the same so that Gene Lo could have argued that his previous acquittal as a found-in offered protected against a subsequent conviction for the same activity. 97. In my case, I was acquitted and though my plea of autrefois acquit may sound like a plea of stare decisis, it is actually for not the relief of a verdict of acquittal but relief of a dismissal or stay of prosecution. 98. I leave it to Judge Lachappelle in Montreal v. Rothman Realty LTD (1965)RL214,41CR372 (QUEMunCt) to make my case: "The accused was acquitted of operating a rooming(gaming) house without a permit on a certain date. A second prosecution was commenced before another judge covering a different date in a different year and the accused pleaded autrefois acquit. There had been no structural change in the building (rooming/gaming house) but the prosecution contended that since the offence was a continuing offence it was entitled to lay the second charge. Charge should be dismissed. The accused had already been acquitted of infringing the by-law and the second prosecution constituted an unlawful attempt to revise the judgment previously rendered without following the prescribed remedy of an appeal.] "The city replies that the complaint being for quite a different date and year, the plea autrefois acquit cannot receive any application since, for a continuous infringement, there is a liability to the penalty for each day during which the infringement is continued. At first glance, this argument appears correct. When an infraction is committed, each day constitutes a new infraction and no plea of autrefois acquit can be entertained when a different date is alleged but indeed, the ruling must be entirely different when an acquittal has been obtained on the essential basis of the existence or non-existence of a right. If it is true that no permit is required (it is legal), the date mentioned in any future complaint is irrelevant and would render a plea of autrefois acquit useless and the Defendant would never know any peace and could be tried every day in the year and placed in jeopardy for the identical offence whose merit has been judicially adjudged. It appears from the above-stated considerations that the rules laid down for a plea of autrefois acquit are far from applying entirely in a case of infringement of a by-law. Call it autrefois acquit or res judicata and it would be illegal and against public order to attempt to revise the judgment rendered by one judge before another judge thus making an appeal without following the prescribed remedy set by law. Notwithstanding the fact that a judgment which has finally decided the issue when the basis of the existence of a right has been pleaded as an exception, the City is still allowed to meet such a plea by proving that subsequent modifications have created a new status preventing the judgment so alleged from receiving application. It was admitted that no structural changes had occurred since the last judgment and consequently the court upholds the plea of autrefois acquit and the complaint is dismissed. As to the very merit, the building in question is in fact an apartment house, not a rooming house." 99. The ultimate problem with ignoring the Fontana and Lennox decisions is demonstrated by cited by the court: COURT: "Can we get original 1989 charge?" CROWN: : No." 100. The court ruled: "The final obstacle to the appellant's double jeopardy argument is that there is some ambiguity whether Fontana P.C.J. and Lennox P.C.J. turned their minds directly to the issue whether winnings count as gains within the meaning of s.197(1)(a). This ambiguity must be resolved in favour of the respondent Crown because the principles of "res judicata" and "issue estoppel" apply only when an issue was clearly decided in a previous litigation. 101. The only reason there is ambiguity is that in skipping over the Lennox and Fontana decisions, the transcripts of the evidence leading to their conclusions were not presented to the court of appeal and only the transcript backing up Judge Wright's trial had been presented by the Crown. Only the transcript of the Fontana trial had expert evidence in the Mathematics of Gambling while the transcript of the Wright trial did not. 102. I think it is impossible for the decisions of Judges Lennox and Fontana to have received a hearing equal to that given to the decision of Judge Wright. 103. From the Crown's Factum comes the request that: "Even if the word "gain" is held not to be plainly applicable to the casino's profits, a purposive interpretation of the legislation would point to the inclusion of such profits. It is therefore submitted that it is in the interests of justice that this Court examine and decide authoritatively upon the Appellant's underlying argument that winnings directly from gambling are not gains under s.197(a). 104. It says that even if the law doesn't prohibit his winnings, convict him anyway. And even though the word "gain" is not applicable to this unique casino's winnings, the Court of Appeal did offer a purposive interpretation of the legislation which did include such winnings. C: ISSUE (3) SENTENCE 105. The Appellant submits that the fine and supervised penal servitude imposed are uncalled for where a former acquittal has precluded any criminal intent and where the conviction results from a novel interpretation of a criminal statute. D: ORDER REQUESTED: 106. The Appellant seeks an order overturning the conviction and staying the prosecution on the grounds of autrefois acquit, issue estoppel, res judicata and abuse of process; 107. Or in the alternative, the Appellant seeks an order varying the sentence to time served with an absolute discharge. Dated at Ottawa on Oct. 31, 1996. For the Appellant: John C. Turmel, B. Eng., 111-1505 Baseline Rd., Ottawa, ON, K2C 3L4, Tel/Fax: 613-723-2739, Email bc726@freenet.carleton.ca TO: THE REGISTRAR OF THIS COURT: AND TO: Ontario Attorney-General Office: Ottawa Courthouse, 161 Elgin St. Ottawa, ON, Tel: 613-239-1200 -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada Box 111 Canada K2C 3L4, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Help Abolish Interest Rates by visiting www.u-net.com/gmlets From elastic!lethe!geac!onramp.ca!news2.insinc.net!nntp.prestech.net!news.flora.ottawa.on.ca!news.magmacom.com!n3ott.istar!ott.istar!istar.net!news.achilles.net!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Dec 8 17:04:42 1996 Xref: elastic can.legal:12139 can.politics:108594 Path: elastic!lethe!geac!onramp.ca!news2.insinc.net!nntp.prestech.net!news.flora.ottawa.on.ca!news.magmacom.com!n3ott.istar!ott.istar!istar.net!news.achilles.net!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: rec.gambling.poker,alt.gambling,rec.gambling.misc,can.politics,ott.general,carleton.alumni,can.legal Subject: TURMEL: Supreme Court Crown Memorandum Date: 6 Dec 1996 11:45:31 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 323 Message-ID: <58910r$pa6@freenet-news.carleton.ca> NNTP-Posting-Host: freenet2.carleton.ca X-Given-Sender: bc726@freenet2.carleton.ca (John Turmel) IN THE SUPREME COURT OF CANADA (On application for leave from the Court of Appeal for Ontario) Between: John C. Turmel Applicant/Accused And Her Majesty The Queen Respondent RESPONSE TO THE APPLICATION FOR LEAVE (under s.691(1)(b) of the Criminal Code and S.40(1) of the Supreme Court Act) 1. The Respondent can add little to the cogent reasons provided buy the Court of Appeal in its judgment of Aug. 13 1996 and relies heavily on them for the proposition that no issues of national importance are raised on this application and that leave should not be granted. PART I: STATEMENT OF FACTS: 2. For the purpose of clarity, the Respondent relies on the facts as summarized by the Court of Appeal. A review of the relevant facts can be broken down into three categories relating to: A. the plea of autrefois acquit and res judicata; B. the statutory interpretation of s197(1)(a) of the Criminal Code; C. the sentence. 3. Before conducting this review, it is important to understand the two facets of the definition of "common gaming house" contained in the Criminal Code, R.S.C. 1985, c C046, s.197(1). Subsection 197(1)(a) provides a general definition asserting that a gaming house is a place "kept for gain to which persons resort for the purpose of playing games." Subsection (b) is an alternative definition. Under this definition, the Crown need only prove that gaming was conducted under one of the four rules which render the keeping of a gaming house illegal. These four rules, which give an advantage to the person operating the gaming house, are listed in s.197(1)(b). A common gaming house means a place that is kept or used for the purpose of playing games (i) in which a bank is kept by one or more but not all the players, (ii) in which all or any portion of the bets on or proceeds from a game is paid, directly or indirectly, to the keeper of the place, (iii) in which, directly or indirectly, a fee is charged to or paid by the players for the privilege of playing or participating in a game or using gaming equipment, or (iv) in which the chances of winning are not equally favourable to all persons who play the game including the person, if any, who conducts the game. When invoking s.197(1)(b), the Crown need not prove that the place was kept for gain. All that is required is that one of the rules listed above had been put into practice. A. Facts relevant to autrefois acquit and res judicata 4. The conviction for keeping a common gaming house at issue on this Application was imposed on May 16 1994 by Judge Wright after rejecting the Applicant's plea of autrefois acquit. It related to two gaming operations in Ottawa on Baxter Road and St. Laurent Blvd. The Crown did not argue that any of the rules prohibited by s.197(1)(b) had been used by the Applicant in running his casinos. Instead, it successfully relied on the general definition in s.197(1)(a) requiring proof of "gain." Reasons p12-13,14 [Court of Appeal] 5. Seven years prior to this conviction, on April 3, 1989, four of the Applicant's customers had been acquitted by Judge Fontana of being found in a gambling establishment operated by the Applicant on Carling Avenue. Judge Fontana ruled that the establishment was not a gaming house. Reasons p6-9 [Court of Appeal] 6. A few days later, on April 7, 1989, the Applicant came before Judge Lennox on gaming charges stemming from his operation on Carling Ave. Judge Lennox decided to adopt the reasons of Judge Fontana and acquitted the Applicant. The Crown did not appeal. Reasons p.9-10 [Court of Appeal] 7. In all his gambling establishments, the Applicant offered his customers blackjack games which were played under certain rules. These "Turmel rules" - which included a limited rotation of the role of the bank to the players and excluded any fees to the house - represented an attempt by the Applicant to avoid the four specific elements of s.197(1)(b). Reasons p11-13,27,28 [Court of Appeal] 8. While substantially the same blackjack rules prevailed in all of the operations run by the Applicant, the Respondent takes issue with the references in the Application to "same evidence" being led against him concerning the Carling Avenue operations in 1989 as was led against him in 1996 over the operation of the premises on St. Laurent Blvd. and Baxter Rd. Only the Blackjack rules and the keeper of the premises (the Applicant) remained the same; the evidence led on each location involved a different time-frame and a different location. Reasons p18,20,23 [Court of Appeal] B. Facts relevant to the statutory interpretation of s.197(1)(a) 9. The evidence on whether the establishments at St. Laurent Blvd. and Baxter Rd. were "kept for gain" was led in the form of financial analysis of their operations and statements from the Applicant's employees and undercover police officers. Reasons p26 [Court of Appeal] 10. The St. Laurent location was described as a "full-fledged casino" with around 20 uniformed employees and between 75 and 100 customers in attendance and eventually operated 24 hours a day with a gross monthly income of $600,000. At Baxter Rd., five Blackjack tables were observed in operation and monthly net revenues from this location were as high as $30,000. The Applicant's wage costs for one month were $175,000. His general manager estimated total yearly profits at $1,000,000. Reasons p26-27 [Court of Appeal] 11. Expert evidence was led by the Crown to demonstrate that these revenues came from the Blackjack tables under the "Turmel rules." While these "Turmel rules" may not have infringed s.197(1)(b), they gave the revenue-generating advantage to the house run by the Applicant. First, the rules only provided for a limited rotation of the role of the bank and even this limited rotation was loosely enforced. To even out the house's advantage, the role of the bank would have to go to the players half the time. It did not. Second, under the "Turmel rules" a player could only be bank against the house. The true advantage of being bank is in facing several players at once which allows the bank to collect on the busted hands by going last during each round. Therefore, even under the Turmel rules, the keeper of the game retained his lucrative position. As the Applicant's general manager stated: The casino makes its money from the Blackjack tables. It's what pays the bills. If you take out the Blackjack tables you wouldn't make any money. If you don't make money, the casino wouldn't be here. Reasons p27-28 [Court of Appeal] C. Facts relevant to sentence 12. The Applicant had a related criminal record and had recently been sentenced to four months for keeping a common gaming house. In this case, he was given a suspended sentence with three years probation, 200 hours of community service and a victim surcharge of $2,500. An overly-restrictive probation term concerning the Applicant's ability to gamble was redrafted by the Court of Appeal. Reasons p2,32-33 [Court of Appeal] R. v Turmel [1995] O.J. No. 2683 C.A. PART II: STATEMENT OF POINTS IN ISSUE 13. Does the application of autrefois acquit and res judicata in this case raise an issue of national importance or otherwise merit leave? 14. Does the interpretation of s.197(1)(a) of the Criminal Code raise an issue of national importance or otherwise merit leave? 15. Does the sentence imposed on the Applicant raise an issue of national importance or otherwise merit leave. PART III: ARGUMENT A. Autrefois acquit and res judicata 16. The Court below ruled that the mere fact that the blackjack rules at the casinos were the same at the 1989 trial as were at issue in 1996 did not allow for a plea of autrefois acquit nor raise concerns about res judicata and the rule against multiple convictions. The St. Laurent Blvd. and Baxter Rd. operations were distinct from the earlier one on Carling Ave. and were capable of independently supporting criminal liability. Reasons p18-20 [Court of Appeal] 17. Whatever was said by Judge Fontana in 1989 (and adopted by Judge Lennox a few days later) on the application of s.197(1)(a) to the "Turmel rules" was not clear enough to settle the issue through issue estoppel and make the 1989 acquittal binding on Judge Wright in 1996. Reasons p24-25 [Court of Appeal] R. v. Von Rassel [1996] 1.S.C.R. 225 18. IN reaching this conclusion, the Court below relied on cases from the Supreme Court of Canada. In particular, the Court cited Dickson C.J. in R. v. Prince [1986] 2 S.C.R. 480 at p491: It is elementary that Kienapple does not prohibit a multiplicity of convictions each in respect of a different factual incident. Offenders have always been exposed to criminal liability for each occasion on which they have transgressed the law, and Kienapple does not purport to alter this perfectly sound principle. It is therefore a sine qua non for the operation of the rule against multiple convictions that the offences arise from the same transaction. Reasons p21-22 [Court of Appeal] 19. The "perfectly sound" nature of this principle is evident on the facts of this case. If the Applicant's submission (that Judge Fontana's ruling decides his case because the same "Turmel rules" were still in use the purpose for the 1996 trial) is correct, then the Applicant has been granted a personal, life-long exemption from prosecution no matter where and how many times he operates his private casino under those rules. This would not be a proper outcome, not one fair to other individuals who would not benefit from the same exemption. Reasons p18 [Court of Appeal] 20. Instead of bringing into question the principle that different transactions do not bar subsequent prosecutions and warranting that that principle be revised by the Supreme Court of Canada, the facts of this case merely confirm the principle's wisdom. 21. The authority cited by the Applicant for the contrary proposition was ably distinguished by the Court below. In R. v. Carrier (1951) 104 C.C.C. 75 (Que. K.B.), the King's Bench in Quebec allowed a plea of autrefois acquit to be entered in a relation to a pamphlet allegedly containing false news. The accused had already been acquitted on a seditious libel stemming from the very same pamphlet. In City of Montreal v Rothman Realty (1963) 41 C.R. 372 (Mun Ct.), a municipal court in Montreal dismissed charges of operating a rooming house given a previous acquittal on the same charge relating to the same building. The Court below held that the similarities between the first and second prosecutions in those cases were greater than here and that those cases were simply examples of stare decisis (or judicial comity). Reasons p16-18 [Court of Appeal] 22. Even assuming that the cases cited by the Applicant are in conflict with the present one, neither Carrier nor Rothman Realty, supra, present the type of disagreement amongst appellate courts that is generally a hallmark of an issue of national importance. Further, if this HOnourable Court wishes to revise the law as it relates to judicial comity and res judicata issues, it is submitted that the Court might await to see how other courts of appeal deal with any conflict between the decision here and the cases relied on by the Applicant. 23. The Court of Appeal's treatment of these issues is thorough and comprehensive. As such, it would provide a solid basis for any judgment the Supreme Court of Canada might wish to render on the subject. However, there is nothing controversial in what was said below that would warrant this Court granting leave in the first place. B. The interpretation of "kept for gain" in s. 197(1)(a) 24. The Applicant also raises the issue of the interpretation of the phrase "kept for gain" in s. 197(1)(a). The Applicant characterizes the revenues from his casinos as direct "winnings," the fruit of a skilled gambler and his employee-agents. He argues that the term "gain" does not include "winnings" and is properly restricted to indirect gains from charging of fees or the sale of drinks and food in gambling establishments - practices he deliberately does not engage in. Reasons p28-30 [Court of Appeal] 25. As noted by the Court of Appeal, if the Applicant is right, then gambling provisions of the Criminal Code would not restrict gambling itself but only indirect gains from the sale of food or parking charges. The Court below accordingly declined to read in the term "indirect" next to "gain" as suggested by the Applicant. IN doing so, the Court followed the rule of statutory construction as set out in R. v. MacIntosh, [1995] 1 S.C.R. 686. Reasons p29-30,32 [Court of Appeal] 26. While it is admitted that "gain" in s.197(1)(a) has not been decisively interpreted by the Supreme Court of Canada, two cases from this Honourable Court guided the Court of Appeal's interpretation. In both R. v. Rockert, [1978] 2.S.C.R. 704 and R. v. DiPietro, [1986] 1.S.C.R. 250, the Court suggested that a common gaming house was one conducted for a business purpose or for profit. The Applicant's operation clearly fell within this definition. Therefore, not only is there no case-law in conflict with the statutory interpretation advanced by the Court of Appeal, but the interpretation advanced below is consistent with jurisprudence from this Honourable Court. Reasons p30-32 [Court of Appeal] 27. Even if the Court of Appeal's interpretation was found to be in error, such an error would not raise an issue of national importance. With the widespread legalization of casinos operating under government supervision and open to the public, the role of the gaming provisions of the Criminal Code is likely to become less significant. See for instance: Saskatchewan Gaming Corporation Act S.S. 1994 C S-18.2, s.2(b), 4 Ontario Casino Corporation Act, 1993, S.O. 1993, C.25, s.2(1),5(c),S.8(2) Gaming Control Act. S.N.S. 1994-5, C.4, s.3(b), 10(a), (b) Act respecting the Regie des alcools, des courses et des jeux, R.S.Q. C. R-6.1, s.2, 23(4) C. Sentence 28. The Respondent assumes that the Application with respect to sentence is made under s. 40 of the Supreme Court Act. It is submitted that the Applicant raises no new sentencing principle that might warrant this Honourable Court's attention and might remove the sentence imposed from the ambit of the appellate deference already set out in R. v. C.A.M., [1996] 1 S.C.R. 500. Supreme Court Act R.S.C. 1985, c. s-26, s.40(1) 29. It is also noted that the sentence at issue is not a custodial one, this further lessen any need for this Honourable Court to intervene. The performance of community service of the type ordered in this case will generally not produce undue hardship that might, by itself, raise an issue of national importance. PART IV: ORDER REQUESTED 30. That the application for leave to appeal be dismissed and that leave to appeal be denied. 31. The Respondent does not seek costs. ALL OF WHICH IS RESPECTFULLY SUBMITTED BY: Trevor Shaw Of Counsel for the Respondent Dated this 15th day of November 1996. -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada Box 111 Canada K2C 3L4, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Help Abolish Interest Rates by visiting www.u-net.com/gmlets From elastic!lethe!geac!onramp.ca!news2.insinc.net!nntp.prestech.net!news.flora.ottawa.on.ca!news.magmacom.com!n3ott.istar!ott.istar!istar.net!news.achilles.net!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 Sun Dec 8 17:06:08 1996 Xref: elastic can.legal:12140 can.politics:108595 Path: elastic!lethe!geac!onramp.ca!news2.insinc.net!nntp.prestech.net!news.flora.ottawa.on.ca!news.magmacom.com!n3ott.istar!ott.istar!istar.net!news.achilles.net!cunews!freenet-news.carleton.ca!FreeNet.Carleton.CA!bc726 From: bc726@FreeNet.Carleton.CA (John Turmel) Newsgroups: rec.gambling.poker,alt.gambling,rec.gambling.misc,can.politics,ott.general,carleton.alumni,can.legal Subject: TURMEL: Supreme Court Memorandum Date: 6 Dec 1996 12:06:33 GMT Organization: National Capital Freenet, Ottawa, Canada Lines: 1009 Message-ID: <589289$prp@freenet-news.carleton.ca> NNTP-Posting-Host: freenet2.carleton.ca X-Given-Sender: bc726@freenet2.carleton.ca (John Turmel) [This is my Memorandum to which the previous post provides the Crown's replies to the issues I've raised.] IN THE SUPREME COURT OF CANADA (Appeal from the Court of Appeal for the Province of Ontario) Between JOHN C. TURMEL Appellant (Defendant) - and - HER MAJESTY THE QUEEN (Respondent) MEMORANDUM PART I: FACTS 1. On Feb 23 1988, the Ottawa Police raided a game of U-bank Blackjack at the Bayshore Hotel in Ottawa and charged John and Ray Turmel with keeping a common gaming house and keeping a common bookmaking house. Also charged were Tasso Paliovarkas, Gene Lo, and David Booth with being found-ins in the gaming and bookmaking houses. 2. Unlike all other Criminal Code sections where the accused is presumed "Innocent until proven guilty," in the case of Disorderly Houses, - gaming, betting and bawdy houses - there is a reverse onus where the accused is presumed "guilty until proven innocent." If a police officer walks in and finds betting slips, you're guilty until you prove that you weren't a bookmaking house. Reverse onus. If a police officer finds you gambling with a deck of cards, you're guilty until you prove that you were not a gaming house. Reverse onus. 3. On Mar 29 1994 at the trial of found-ins Dave Booth, Gene Lo and Tasso Paliovarkas, John Turmel was the Crown's expert witness in the Mathematics of Gambling and explained how Mutual Exclusivity applied. Players were instructed to admit: "I bet, I called, I played, I banked, no rake-off and no fee, I won, I lost, I tipped with always chips, no GST. 4. Judge Fontana first ascertained under section (a) if Tasso, Gene or David had bought anything? "No GST." Only gambling money came out of our wallets. Then Judge Fontana checked into the gambling under section (b) of gaming house definition and asked: - if they'd been "excluded from being the bank?" No. "We played, we banked" against John or Ray up to half the time. - if they lost any chips to a rake-off?" "No rake-off." - if they lost any chips "to a fee?" "No fee." - if they were at any kind of disadvantage at all? No. "We played, we banked," up to half the time and by the statistical law of "mutual exclusivity," as long as all could bank half the time, it didn't matter whose chips anyone tried to win to guarantee a fair 50:50 game. 4. After the Crown had rested its case, the Defence moved for a directed verdict of acquittal on the grounds that there was no evidence of the presumption that any of the five gaming house definitions had been violated. Judge Fontana reserved his decision to April 3. 5. On Mar 31 1989 at the trial before Judge Lennox of the keepers, John and Ray Turmel, the Crown drafted a Statement of 19 Agreed Facts signed by both parties. After the Crown had rested its case, the Defence moved for a directed verdict of acquittal on the grounds that there was no evidence of the presumption that any of the five gaming house definitions had been violated. Judge Lennox reserved his decision to Apr 8 after the Apr 3 decision of Judge Fontana. 6. On Apr 3 1989, Ontario Provincial Court Judge Fontana granted the motion for a directed verdict of acquittal of Tasso Paliovarkas, Gene Lo and David Booth after listing the evidence and ruling (p9- "- refreshments were available but there was no charge for them, - there was no fee to enter the game, - there was no percentage or rake-off, - a player exercised his right to be dealer.(page9) Common gaming house is defined in five ways. On the evidence alleged by the Crown and accepting the testimony presented on behalf of the Crown by Mr. Turmel, the operation in this occasion clearly does not fall into the first four categories: - a place kept for gain, or for playing games where - the bank is held by one or more but not all players, - there is a rake-off charged, - there is a fee charged. Clearly, none of these four criteria apply. If the operation is to be caught, it must be caught with respect to subsection four.(page 12) The opportunity to be the banker\dealer was available to all players who participated in the game.(page 15) The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section."(page 16) 7. There are only 5 illegal ways for money to leave a found- in's wallet in an illegal common gaming house and Judge Fontana had ruled that none of those 5 illegal flows had taken place playing Blackjack according to Turmel-style house and game rules. The charge of keeping a common bookmaking house was withdrawn because illegal card-playing is a gaming offence, not a bookmaking offence. 8. On April 8, 1989, after being presumed guilty of keeping a common gaming house by the same reverse onus, Judge Lennox found that given Judge Fontana's judgment that there had been no illegal flows from the found-ins wallets, there could be no illegal flows into Turmel's wallet and adopted the reasons of Judge Fontana to direct a verdict of acquittal of this unique uncommon gaming house. 9. The Crown did not appeal and has never chosen to try to overturn those trial acquittals at the appellate court. 10. Being found innocent after facing the reverse onus is far more powerful than remaining innocent after facing the Crown onus. My acquittal brought me back all the way from the black of "presumed guilt" whereas the ordinary acquittal leaves the accused at the white of presumed innocence. I had to use an offensive defence while the usual accused uses a purely defensive defence. 11. On Feb 28 1992 I alerted the police I was moving my Turmel's Games Room to the Baxter Rd. Plaza and expanded to 5 U- bank Blackjack tables and 2 Poker tables with 14 employees. After 8 months, on Nov 14 1992, I alerted the police I was moving to the Topaz Entertainment Plaza on St. Laurent Blvd. in Ottawa with 20 U-Bank Blackjack tables and 7 no-rake-off Poker tables served by 122 staff. As news of such a large uncommon gaming house in a city being denied its own casino by the Province of Ontario, political pressure mounted to close me down. 12. On Mar 23 1993, after learning the Crown was simply going to re-charge me again rather than file an appeal, I filed an application before Justice Finlayson of the Ontario Court of Appeal to extend the time for the Crown to appeal as the proper route for the Crown to be taking to answer the question with a minimum of inconvenience and possibility of violating gamblers' rights. Judge Finlayson ruled that I could not initiate an application to extend the time for the Crown to appeal as only the Crown could initiate such an appeal from an acquittal. And the Crown did not want to appeal those acquittals. 13. On July 13 1993, with the acquittals of Judges Fontana and Lennox still not overturned, Ottawa Police launched the "Project Robin Hood" raid on Casino Turmel at Topaz Plaza. Added to the common gaming house charge was not only the common bookmaking house charge under Section 201(1) which had been withdrawn in 1989 but also two new bookmaking offences: "being in the business of bookmaking" under section 202(1)(c) and "controlling monies from bookmaking" under Section 202(1)(e). I stood mute at my plea. 14. Though there was no change in the operations of the games, there was a change in the information which the new court was going to hear. Since a judicial ruling on the legality of the found-ins losses had hindered the past prosecution, they solved that problem by not charging any found-ins. While the innocence the winnings was easily seen by Judge Lennox after Judge Fontana had looked into the losses, that innocence was harder to prove when the next judge was only going to looking into the winnings. This is the first instance of the Crown stacking the deck. 15. On Oct. 3, 1993, David Booth was charged with keeping a "2-Man U-Bank Blackjack" game and Gene Lo was once again charged as one of the found-ins playing with him. 16. On Oct 22, Mr. Lo and 3 other found-in accused appointed me as their legal agent to represent them on this summary conviction offense and I was going to get the chance to prove once again that from the found-ins simple point of view, none of the five illegal flows of money came out of their wallets in Turmel-style Blackjack. 17. On Nov 15, 1993, I raised the Canadian double-jeopardy special pleas of Autrefois Acquit, Issue Estoppel and Abuse of Process for John Turmel (formerly-acquitted keeper and currently- charged keeper), David Booth (formerly-acquitted found-in and currently-charged keeper) and Gene Lo (formerly-acquitted found- in and currently-charged found-in) before Ottawa Provincial Court Judge Peter Wright. As the pleas were all based on the Lennox and Fontana decisions, the Crown had argued they should be heard together. Another motion sought to quash the bookmaking charges because case law placed playing cards under a gaming, not bookmaking, offence. 18. Judge Wright permitted Gene Lo a statement: "Court: "Mr. Lo, do you have anything you would like to add?" Lo: Yes. I was acquitted of the charge of playing Blackjack, or 21, in 1989 by Judge Fontana. I was playing with John Turmel. And when I was playing at Dave's place, it was the same set of rules, it was the same game that I had before. Being acquitted, I thought that what I was doing was right. And I wasn't breaking any law because the game house had changed. It was the same set of rules, the same set of circumstances. I can be the bank. I had the same advantages that the house has and I was charged again for the same offence. And this is why I am here today, to plead my case, that I shouldn't be charged again for the same thing that I was acquitted on. 19. Judge Wright declined jurisdiction in the cases of Gene Lo and David Booth and reserved his decision. 20. Defence cited in support: R. v. Carrier (1951) 104 C.C.C. p75 Que K.B., R. v. Wright (1965) 45 C.R.38 R. v. Jewitt (1985) 2S.C.R. S.C.C. R. v. Boross (1984) 12 C.C.C. (3d) p480 Alta C.A. R. v. Grdic, (1985) 19 C.C.C. (3d) S.C.C. R. v. Keyowski (1988) 40 C.C.C. (3d) p481 R. v. Rourke (1978) 1 S.C.R. p1021 R. v. Young (1984) 40 C.R. (ed) p289 Connelly v Dir. Public Prosecutions, (1964) AC1254(H.L.) Deserted Wives Maintenance Act (1948) 1W.W.R.680 B.C.PolCt. Montreal v. Rothman Realty (1965) R.L.214, 441C.R.372 21. The Crown argued double jeopardy did not apply because: a) it was a new offence at a new time and new place making the matters different: b) Judge Fontana had not dealt with section (a) which was therefore open to be litigated now; c) the evidence was different. 22. On Nov. 26, 1993, Provincial Court Judge Peter Wright ruled: "Mr. Turmel very emphatically contends that the facts are the same, however the Court must decide these issues on the basis of evidence which is presented in the absence of evidence, I find that the application of Mr. Turmel, although, perhaps, premature, must be denied." 23. The motion to quash the bookmaking charges was also denied. 24. On Feb 7 1994, my motion before Judge Wright to quash the bookmaking charges was put off to the trial. 25. On Feb 24 1994, the Crown withdrew all three bookmaking charges but Judge Wright denied Defence Attorney Matt Sagle's request for costs to cover the needless preparation of defence to those spurious charges. The Crown entered our joint Statement of Agreed Facts identically worded to the 19 Agreed Facts in the 1989 Statement of Agreed Facts. 26. On Feb. 25, after the Crown had presented no evidence of any changes in the operations of the establishment which had not been admitted in both the 1989 and 1994 Statement of Agreed Facts, Defence again raised the double jeopardy pleas on the grounds that the nineteen 1993 Agreed Facts were indeed congruent with the nineteen 1989 Agreed Facts which had resulted in acquittal and no new interpretation of law was allowed other than by the Ontario Court of Appeal. The motion was dismissed by Judge Wright who ruled: "The plea is not founded upon evidence which the court has before it."(page 73) 27. Then I filed a notice of motion for relief sought under the Charter of Rights to remedy violations of the following rights: Section 2: to peaceful assembly and association; Section 6: to gain a livelihood; Section 7: to not suffer double jeopardy; Section 8: to not suffer unreasonable search and seizure; Section 9: to not be arbitrarily detained; Section 11a: to be informed of the specific offence; Section 11d: to be presumed innocent; Section 11h: to not be tried again if finally acquitted; Section 12: to not be subjected to cruel and unusual treatment; Section 15: to be equal before and under the law. The motion was denied. 28. The Crown sought to present evidence of the gambling. Defence objected that the game details had been admitted in the Statement of Agreed Facts whose main purpose was to dispense with evidence of agreed facts and that more evidence on the games would be superfluous. Nevertheless, the Crown was permitted to enter the evidence about the admitted games. 29. The Crown was permitted to enter detailed forensic accounting evidence on the amount of the admitted gambling winnings and amount of the tab even though Defence cited the R. v. James case: "The question of what is keeping it for gain ought not be embarrassed by the amount." 30. The Crown was permitted to enter detailed forensic accounting of the tab expense house losses like rent and refreshments as a proof of gain. Defence argued they were proof of loss and their totals were irrelevant. 31. When the Crown rested its case with no fresh evidence of any change in the operations which had been admitted and no evidence of any vending gains and only evidence of gambling winnings and tab losses, the Defence moved for a directed verdict of acquittal. There was a history of acquittals under (a) if there were no sales and a history of convictions under (a) only if there were sales: R. v. Bampton (1932) 58 C.C.C. p289 R. v. Bertrand (1918) C.C.c. XXXI p2 R. v. Cherry and Long (1924) 42 C.C.C. p137 R. v. DiPietro (1986) 25 C.C.C. (3e) p100 (S.C.C.) R. v. Fong (1923) B.C.R. p238 (B.C.) R. v. Irwin (1982) 1 C.C.C. (3d) p212 (Ont.C.A.) R. v. James (1903) 7 C.C.C. p196 (Ont.C.A.) R. v. Karavasilis (1980) 54 C.C.C. (2d) p530 R. v. Kerim (1963) S.C.R. p125 (S.C.C.) R. v. Lemaire (1929) C.C.C. LI p137 R. v. Ley (1912) 20 C.C.C. p170 (S.C.A.) R. v. O'Meara (1915) 25 C.C.C. p16 (Ont.C.A.) R. v. Pare j(1987) 38 C.C.C. (3e) p97 (S.C.C.) R. v. Radinsky (1929) C.C.C. LII p131 R. v. Riley (1916) 26 C.C.C. p402 (B.C.C.A.) R. v. Sala (1907) C.C.C. XIII p198 R. v. Saunders (1900) C.C.C. III p495 R. v. Sullivan (1930) 53 C.C.C. p243 R. v. Tatti (1965) 4 C.C.C. p268 (Ont.C.A.) R. v. Wong (1922) 40 C.C.C. p311 (B.C.) R. v. Lefrancois (1981) 63 C.C.C. (2d) p380 (Que.C.A.) in particular: "The notion of gain necessarily implies that the amount paid to the vendor must exceed the cost of the items sold." 33. The notion of winning necessarily does not imply an amount paid to a vendor. There are no vendors at the gaming tables. It necessarily implies a pot awarded to the winner. All the cases under (a) dealt with amounts paid, never amounts won. 34. The Defence pointed out that when subsection (a) states "keep for gain to which persons resort for the purpose of playing games," it mentions both the act of "gaining" and the act of "playing" in very same sentence which suggests the legislators intended the distinction between the act of selling for gain and the act of playing for win. Defence pointed out the many clear historical distinctions between gaining under (a) and winning under (b): (a) versus (b) Word "gain" is used Word "play" is used Gain from the house Gain from the game Indirect from game Direct from game From commerce From gambling By sales By skill At the stock room At the card table In currency In chips Registered at cash register Registered at chip tray With GST Without GST Due to presence of game Due to play in game Independent of game Dependent of game 35. The last two distinctions have to do with the words in section (a): "to which persons resort for the purpose of playing games." This indicates that keeping a place for gain to which persons do not resort for gambling is lawful. Such gain is legal before and after people resort thereto for the purpose of playing games and only becomes illegal when persons arrive to gamble. Subsection (a) gain has to be coming out of the house so that the presence of the gamblers increases that gain. 36. There is no case law to show that a professional card- player's lawful winnings from the game has ever been prosecuted as unlawful gain under subsection (a) as OPP constable Young admitted on page 107 of the Mar 20, 1995 transcript: "The argument that was going to be made was gain from the game rather than from gain from the extras that were surrounding the game." "As Turmel pointed out during the trial, there is no case law on that." 37. Instead, the Crown cited Black's Law Dictionary to show that gain should include winnings. Defence argued that the doctrine of strict construction of criminal statutes required the court to adopt the interpretation most favourable to the accused. Ignoring the historical limits set by case law to use the maximal number of definitions in a dictionary is the anti-thesis of strict construction of statutes. 38. On Mar 4 1994, the Crown withdrew the charges against all my found-ins and no new judgments on found-in losses were going to be obtained. 40. On Mar 18 1994, having never pleaded, I again invoked the special plea of issue estoppel which prohibits inconsistent verdicts on the same facts hoping Judge Wright had seen that there was no evidence of any change in the operations given the 1994 Statement of Agreed Facts he was reading was almost word for word identical to the 1989 Statement of Agreed Facts given to Judge Lennox. 41. I argued that Judge Fontana's and Lennox's decisions which had dismissed all five definitions had to have been overturned before a brother judge could be contemplating a different conclusion on a set of facts where there was no fresh evidence of any change. 42. On Mar 23 1994, Judge Wright ruled on page 2: "I can indicate that on a basic level, I have to agree with you that the facts are largely the same in relation to the game: the rules are as you described in an earlier date in court, the structure." "In my view, for issue estoppel to apply, the Court must also be satisfied that the issue is the same or that the issue is substantially the same. Here, it would appear to me that the issue is a fairly narrow one and that issue is the meaning of "gain." It would appear that the issue of gain is not one which has been addressed, at least directly, in the previous cases to which references have been made. And therefore, I find the doctrine is not applicable here." 43. On May 16, 1994, despite no evidence of any change in the operations of the establishment,(Mar 31, 1995 p123), Judge Wright convicted me of keeping a common gaming house under Section (a) ruling: "Reference has been made to the decision of my brother judge, Judge Fontana, in R. v. Booth which decision I have read and agreed with. Were the Crown proceeding under (b), it follows that in accordance with the Booth decision, I would enter an acquittal based on the facts that are before me. The Crown proceeds today on a different definition and that is the definition found under (a)." "There is no evidence of any indirect gain or income whatsoever, only from the business of gambling directly." "If the charge against Mr. Turmel turns on the meaning of the word "gain", does gain include winnings?" "I conclude that gambling income does come within the meaning of (a), and I must conclude that the charge is proven, and there will be a finding of guilty." 44. On Mar 10 1995, Tasso Paliovarkas was charged with being found-in a common gaming house being kept by Ray Turmel in Hull and has appointed John Turmel as his prosecutor agent. 45. On Mar 31, 1995, Justice Wright sentence the Appellant to 3 years probation with the condition not to gamble in any unlicensed establishment after ruling: "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 46. On Sep 8 1995, the Ontario Court of Appeal, unaware that formerly lawful gambling winnings were now to be convicted under a new interpretation of the word "gain," varied that condition ruling: "There's no difference gambling in a licensed premises and gambling in your own house which he's now prevented from doing." "The condition limiting the Appellant to gambling in licensed establishments will be deleted and replaced with the condition that he not participate in any illegal gambling." 47. On Aug 13 1996, the Ontario Court of Appeal sustained the Appellant's conviction which is the subject of this appeal. PART II: POINTS IN ISSUE 48. A) Judges Fontana and Lennox's strict interpretation of section (a) is historically correct and Judge Wright's novel expanded interpretation of section (a) is a usurpation of Parliamentary prerogative by violating the doctrine of strict interpretation of criminal statutes. 49. B) Judge Lennox's decision to apply Judge Fontana's ruling on found-in losses and follow the judgment was correct and Judge Wright's decision to risk a contradictory judgment by trying the same set of facts was a violation of the doctrines of autrefois acquit, issue estoppel and res judicata. 50. C) A fine and supervised penal servitude are uncalled for where a former acquittal precludes criminal intent and where the conviction results from a novel interpretation of a criminal statute. PART III: STATEMENT OF ARGUMENTS: A) GAIN 51. Where Judge Fontana ruled that the premises were "not kept for gain," Judge Wright ruled that the premises were "kept for gain." 52. Where Judge Fontana ruled: The advantage that is derived to an individual by reason of his own skill and in playing the game, in no way confers an unfair advantage as contemplated by the section."(page 16) 53. Where the Court of Appeal on Sep 8 1995 varied the condition of my probation so that I could make my living by playing cards at home, Justice Labrosse had stated: "There's no difference gambling in a licensed premises and gambling in your own house which he's now prevented from doing." "We're all agreed that the two conditions of probation are too broad in the circumstances of this admittedly unique case. The condition limiting the Appellant to gambling in licensed establishments will be deleted and replace with the condition that he not participate in any illegal gambling."(page 141) 54. Yet, on Mar 20, 1994, Judge Wright stated: "I have addressed that issue and the application that it might have even to a home if kept for the purpose of gain."(page 156) "If you're making a living by playing cards at home, then your home becomes a place which is kept" for illegal gain. 55. Where Judge Fontana ruled that Turmel's winnings were not contemplated by the section, Judge Wright ruled that Turmel's winnings were contemplated in the section. 56. Where Judge Fontana ruled that playing at U-Bank Blackjack with the option of banking half the time is 50:50 fair, Judge Wright has ruled that playing at U-Bank Blackjack is still 57. Where Judge Fontana ruled that evidence of a bank edge when the bank could rotate is irrelevant, Judge Wright allowed such evidence to be entered as relevant. 58. Where Judge Fontana treated Turmel-style Blackjack is neutral like Poker, Judge Wright has treated it as not neutral like Poker. Winnings of $150,000 at Blackjack were objected to but winnings of $250,000 at Poker were not. 59. Where Judge Fontana ruled that not being able to play with anyone but the host was "of no consequence" due to Mutual Exclusivity, Judge Wright ruled that being forced to play only with the host at 50:50 fair game was of consequence. 60. Where Judge Fontana treated Indirect gain versus Direct gain as the significant distinction between sections (a) and (b), Judge Wright ruled that Indirect gain versus Direct gain is not a significant distinction." 61. Where Judge Fontana used a strict interpretation of section (a) to indirect gains from the house based on a history of case law, Judge Wright's expanded the interpretation to direct gains from game based on a dictionary. 62. The syntax of the section also includes an indicator that gaining at commerce was to be held as different from winning at the game. the section reads: "a place kept for gain to which persons resort for the purpose of playing games." 63. By mentioning both gain and playing games in the same sentence, it is submitted that gain is therefore not a product of playing games. 64. The Court of Appeal found that the historical interpretation was too narrow and allowed the expansion to the plain meaning of gain as winnings from the dictionary. 65. Where Judge Fontana dispensed evidence of admitted facts as superfluous, Judge Wright allowed evidence of admissions to be entered. 66. Where Judge Fontana dispensed with accounting of admitted expenses, Judge Wright allowed evidence of these admissions to be entered. 67. Where Judge Fontana dispensed with "How well found-ins played" as irrelevant, Judge Wright allowed evidence of how well they played to be entered. 68. Where Judge Fontana had no interest in "How well Turmel played," Judge Wright allowed evidence of how well I played. 69. Where Judge Fontana had ruled that the accounting of found-ins' losses" was irrelevant, Judge Wright ruled that the accounting of Turmel's winnings was relevant evidence to be entered. 70. Where Judge Fontana had no interest in which banks the found-ins' losses were deposited into, Judge Wright found that which banks Turmel's winnings were deposited to be relevant evidence. 71. The Court of Appeal ruled that the magnitude of my winnings constituted keeping it for gain despite R. v. James: "The question of what is keeping it for gain ought not be embarrassed by the amount." 72. The Court of Appeal in citing R. v. Di Pietro said that the business purpose test which had been applied to the sales of coffee should also be applied to the winning of pots. All the cases cited dealt with sales of refreshments. 73. Repeatedly, the Court stated that the objective of the law was is to restrict business of gambling. Repeatedly, the Appellant pointed out that the legislators had not outlawed the business of gaming like they had outlawed the business of betting. 74. At the appeal, Justice Austin noted: "What you're saying if I understand it is that the first time around, the Crown objective was not to demonstrate that he was running a business. 75. Judge Fontana's objective was to find out if I was running a common gaming house, not a business. 76. All of the evidence had been admitted in the Statement of Agreed Facts. There were no factual disputes. Once Judge Wright had concluded that "there was no evidence of any change in the operations," they were the same facts and new evidence of the same admitted facts was completely superfluous. The Crown noted that the case rested on statutory interpretations and the Defendant had admitted all the elements of the offence. What possible new evidence of the same facts can be relevant? 77. Where a judgment on the same facts from another angle with no confusing and extraneous accounting evidence gave Judge Lennox a binocular perspective, without such a judgment, Judge Wright was limited to a monocular perspective. 78. Where Judge Fontana ruled found-ins had to worry about 5 money flows out of their wallets, Judge Wright has ruled that they have to worry about a sixth illegal flow into mine. 79. With the upcoming Dec 10, 1996 trial of found-in Tasso Paliovarkas will be the opportunity to have the question of found-in losses determine the question of whether players of Turmel-style Blackjack have to worry about a sixth way of spending their money. B) ISSUE (2) DOUBLE JEOPARDY 80. Where Judge Lennox accepted Judge Fontana's ruling that none of the 5 gaming house definitions applied to the same facts, Judge Wright ruled that one of the 5 definitions does apply to the same facts. 81. Where Judge Lennox ruled that he would not hand down an inconsistent or contradictory verdict on the same facts and had to follow Judge Fontana on all five sections, Judge Wright has handed down an inconsistent and contradictory verdict on the same relevant 19 facts after ruling that he ruled that Judge Fontana had not dealt with the proper interpretation of section (a) and he didn't have to follow Fontana on (a). 82. Clearly, Judge Fontana dealt with all five sections and the proper interpretation of gain. 83. In R. v Wright (1965) (1965)3CCC160 affirmed (1963)1CCC254 on page 338 and 339: "The doctrine of issue estoppel springs from the reluctance of the courts to permit inconsistency of verdicts." "There is issue estoppel if it appears that the same point was determined in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. The allegation of the crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding." 84. In Connelly v Dir. Public Prosecutions, [1964]AC1254(H.L.) on page 1259: "The authorities show that the courts have applied the doctrine to cases where a conviction on a second indictment would be inconsistent with acquittal on the first." "As a general rule a judge should stay an indictment when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment or are part of a series of offences of the same or a similar character as the offences charged in the previous indictment." 85. In R. v Grdic, 19CCC3d(SCC) on page 289: "The Crown was not allowed to re-try except if there was fresh evidence... Unless it can be shown the subsequent prosecution is an attempt by Crown to re-try the accused, the preferable policy is to exclude issue estoppel. "If to prove the allegation the Crown is merely tendering the same evidence as that tendered previously, then issue estoppel will survive the attack because the Crown's allegation, is in disguise, but a re-litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." Indeed, another judge is invited to reconsider the same evidence and conclude differently. This can only be done through the appeal process finding reversible error resulting in the ordering of a new trial before a different judge." 86. From the moment it became obvious that the facts were the same as in the other two cases, this court could not have jurisdiction as the Crown was therefore "merely tendering the same evidence as that tendered previously, in disguise, but a re- litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within." 87. Indeed, His Honour Judge Wright was put in the position of being invited to reconsider the same evidence and conclude differently which can only be done through the appeal process finding reversible error in Judge Fontana's decision and resulting in the ordering of a new trial before a different judge. 88. The Court of Appeal accepted that there was no double jeopardy because the offences took place at different times and locations; 89. The Court pointed to all the cases which showed that autrefois acquit does not apply to a second criminal act at a different time and place. The Court cited R. v. Riddle, an assault, R. v. Prince, a stabbing, R. v. Kineapple, manslaughter, Van Rassel, robbery. 90. The Court pointed out that the complement of autrefois acquit, autrefois convict, did not protect someone formerly convicted of a criminal act from prosecution for a new criminal act and ruled that autrefois acquit and autrefois convict do not apply to future offences. 91. I had argued that there was a difference between an acquittal or conviction for doing a criminal act and an acquittal for being a criminal behavior when that acquittal has been obtained on the essential basis of the existence or non-existence of a right. 92. I had cited R. v. Carrier where a pamphlet was alleged to be seditious at two different times and places and was judged to be protected by autrefois acquit. 93. In particular, I CITED Montreal v. Rothman Realty where an apartment building had been acquitted of being an illegal rooming house. When that apartment building was charged anew, the judge ruled that since there was no evidence of any change in the operations of the house, the different date of the second charge was not relevant and autrefois acquit applied to an unchanged house. 94. The Court of Appeal concluded that Carrier and Rothman were really more cases of stare decisis than autrefois acquit, that the previous acquittals were merely persuasive and that Judge Wright was not bound to look at section (a) in the same way as Judge Fontana and not bound to acquit. 95. Stare decisis is the doctrine of following precedent usually set by higher courts where the two parties are not the same and David Booth could have certainly argued that the Turmel Keeper acquittal before Judge Lennox was stare decisis for his charge of keeping a gaming house. 96. Yet, autrefois acquit is the plea when the two parties are the same so that Gene Lo could have argued that his previous acquittal as a found-in offered protected against a subsequent conviction for the same activity. 97. In my case, I was acquitted and though my plea of autrefois acquit may sound like a plea of stare decisis, it is actually for not the relief of a verdict of acquittal but relief of a dismissal or stay of prosecution. 98. I leave it to Judge Lachappelle in Montreal v. Rothman Realty LTD (1965)RL214,41CR372 (QUEMunCt) to make my case: "The accused was acquitted of operating a rooming(gaming) house without a permit on a certain date. A second prosecution was commenced before another judge covering a different date in a different year and the accused pleaded autrefois acquit. There had been no structural change in the building (rooming/gaming house) but the prosecution contended that since the offence was a continuing offence it was entitled to lay the second charge. Charge should be dismissed. The accused had already been acquitted of infringing the by-law and the second prosecution constituted an unlawful attempt to revise the judgment previously rendered without following the prescribed remedy of an appeal.] "The city replies that the complaint being for quite a different date and year, the plea autrefois acquit cannot receive any application since, for a continuous infringement, there is a liability to the penalty for each day during which the infringement is continued. At first glance, this argument appears correct. When an infraction is committed, each day constitutes a new infraction and no plea of autrefois acquit can be entertained when a different date is alleged but indeed, the ruling must be entirely different when an acquittal has been obtained on the essential basis of the existence or non-existence of a right. If it is true that no permit is required (it is legal), the date mentioned in any future complaint is irrelevant and would render a plea of autrefois acquit useless and the Defendant would never know any peace and could be tried every day in the year and placed in jeopardy for the identical offence whose merit has been judicially adjudged. It appears from the above-stated considerations that the rules laid down for a plea of autrefois acquit are far from applying entirely in a case of infringement of a by-law. Call it autrefois acquit or res judicata and it would be illegal and against public order to attempt to revise the judgment rendered by one judge before another judge thus making an appeal without following the prescribed remedy set by law. Notwithstanding the fact that a judgment which has finally decided the issue when the basis of the existence of a right has been pleaded as an exception, the City is still allowed to meet such a plea by proving that subsequent modifications have created a new status preventing the judgment so alleged from receiving application. It was admitted that no structural changes had occurred since the last judgment and consequently the court upholds the plea of autrefois acquit and the complaint is dismissed. As to the very merit, the building in question is in fact an apartment house, not a rooming house." 99. The ultimate problem with ignoring the Fontana and Lennox decisions is demonstrated by cited by the court: COURT: "Can we get original 1989 charge?" CROWN: : No." 100. The court ruled: "The final obstacle to the appellant's double jeopardy argument is that there is some ambiguity whether Fontana P.C.J. and Lennox P.C.J. turned their minds directly to the issue whether winnings count as gains within the meaning of s.197(1)(a). This ambiguity must be resolved in favour of the respondent Crown because the principles of "res judicata" and "issue estoppel" apply only when an issue was clearly decided in a previous litigation. 101. The only reason there is ambiguity is that in skipping over the Lennox and Fontana decisions, the transcripts of the evidence leading to their conclusions were not presented to the court of appeal and only the transcript backing up Judge Wright's trial had been presented by the Crown. Only the transcript of the Fontana trial had expert evidence in the Mathematics of Gambling while the transcript of the Wright trial did not. 102. I think it is impossible for the decisions of Judges Lennox and Fontana to have received a hearing equal to that given to the decision of Judge Wright. 103. From the Crown's Factum comes the request that: "Even if the word "gain" is held not to be plainly applicable to the casino's profits, a purposive interpretation of the legislation would point to the inclusion of such profits. It is therefore submitted that it is in the interests of justice that this Court examine and decide authoritatively upon the Appellant's underlying argument that winnings directly from gambling are not gains under s.197(a). 104. It says that even if the law doesn't prohibit his winnings, convict him anyway. And even though the word "gain" is not applicable to this unique casino's winnings, the Court of Appeal did offer a purposive interpretation of the legislation which did include such winnings. C: ISSUE (3) SENTENCE 105. The Appellant submits that the fine and supervised penal servitude imposed are uncalled for where a former acquittal has precluded any criminal intent and where the conviction results from a novel interpretation of a criminal statute. D: ORDER REQUESTED: 106. The Appellant seeks an order overturning the conviction and staying the prosecution on the grounds of autrefois acquit, issue estoppel, res judicata and abuse of process; 107. Or in the alternative, the Appellant seeks an order varying the sentence to time served with an absolute discharge. Dated at Ottawa on Oct. 31, 1996. For the Appellant: John C. Turmel, B. Eng., 111-1505 Baseline Rd., Ottawa, ON, K2C 3L4, Tel/Fax: 613-723-2739, Email bc726@freenet.carleton.ca TO: THE REGISTRAR OF THIS COURT: AND TO: Ontario Attorney-General Office: Ottawa Courthouse, 161 Elgin St. Ottawa, ON, Tel: 613-239-1200 IN THE SUPREME COURT OF CANADA (Appeal from the) (Court of Appeal) (for the Province of Ontario) Between JOHN C. TURMEL Appellant (Defendant) - and - HER MAJESTY THE QUEEN (Respondent) MEMORANDUM For the Appellant: John C. Turmel, B. Eng., 111-1505 Baseline Rd., Ottawa, ON, K2C 3L4, Tel/Fax: 613-723-2739, Email bc726@freenet.carleton.ca -- John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada Box 111 Canada K2C 3L4, Tel/Fax:613-723-2739 All TURMEL topics to newsgroup: can.politics Help Abolish Interest Rates by visiting www.u-net.com/gmlets