Subject: TURMEL: Robin Hood Gaming House Appeal Transcript

From: [email-masked] (John Turmel)
Date: 18 Sep 1996 12:09:14 GMT

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