Subject: TURMEL: Robin Hood Gaming House Crown Factum Analysis

From: [email-masked] (John Turmel)
Date: 18 Sep 1996 11:47:41 GMT

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
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