Subject: TURMEL: Supreme Court Crown Memorandum

From: [email-masked] (John Turmel)
Date: 6 Dec 1996 11:45:31 GMT

IN THE SUPREME COURT OF CANADA
 (On application for leave from the Court of Appeal for Ontario)
 
Between:
 
                         John C. Turmel
                                                Applicant/Accused
 
                               And 
 
                      Her Majesty The Queen
                                                       Respondent

              RESPONSE TO THE APPLICATION FOR LEAVE 
             (under s.691(1)(b) of the Criminal Code 
              and S.40(1) of the Supreme Court Act)
 
1. The Respondent can add little to the cogent reasons provided buy 
the Court of Appeal in its judgment of Aug. 13 1996 and relies heavily 
on them for the proposition that no issues of national importance are 
raised on this application and that leave should not be granted.
 
PART I:
STATEMENT OF FACTS: 
 
2. For the purpose of clarity, the Respondent relies on the facts as 
summarized by the Court of Appeal. A review of the relevant facts can 
be broken down into three categories relating to:
A. the plea of autrefois acquit and res judicata;
B. the statutory interpretation of s197(1)(a) of the Criminal Code;
C. the sentence.
 
3. Before conducting this review, it is important to understand the 
two facets of the definition of "common gaming  house" contained in 
the Criminal Code, R.S.C. 1985, c C046, s.197(1). Subsection 197(1)(a) 
provides a general definition asserting that a gaming house is a place 
"kept for gain to which persons resort for the purpose of playing 
games." Subsection (b) is an alternative definition. Under this 
definition, the Crown need only prove that gaming was conducted under 
one of the four rules which render the keeping of a gaming house 
illegal. These four rules, which give an advantage to the person  
operating the gaming house, are listed in s.197(1)(b). A common gaming 
house means a place that is kept or used for the purpose of playing 
games
(i) in which a bank is kept by one or more but not all the players,
(ii) in which all or any portion of the bets on or proceeds from a 
game is paid, directly or indirectly, to the keeper of the place,
(iii) in which, directly or indirectly, a fee is charged to or paid 
by the players for the privilege of playing or participating in a game 
or using gaming equipment, or
(iv) in which the chances of winning are not equally favourable to all 
persons who play the game including the person, if any, who conducts 
the game. 
 
When invoking s.197(1)(b), the Crown need not prove that the place was 
kept for gain. All that is required is that one of the rules listed 
above had been put into practice.
 
A. Facts relevant to autrefois acquit and res judicata
 
4. The conviction for keeping a common gaming house at issue on this 
Application was imposed on May 16 1994 by Judge Wright after rejecting 
the Applicant's plea of autrefois acquit. It related to two gaming 
operations in Ottawa on Baxter Road and St. Laurent Blvd. The Crown 
did not argue that any of the rules prohibited by s.197(1)(b) had been 
used by the Applicant in running his casinos. Instead, it successfully 
relied on the general definition in s.197(1)(a) requiring proof of 
"gain." 
Reasons p12-13,14  [Court of Appeal]
 
5. Seven years prior to this conviction, on April 3, 1989, four of the 
Applicant's customers had been acquitted by Judge Fontana of being 
found in a gambling establishment operated by the Applicant on Carling 
Avenue. Judge Fontana ruled that the establishment was not a gaming 
house. 
Reasons p6-9  [Court of Appeal] 
 
6. A few days later, on April 7, 1989, the Applicant came before Judge 
Lennox on gaming charges stemming from his operation on Carling Ave. 
Judge Lennox decided to adopt the reasons of Judge Fontana and 
acquitted the Applicant. The Crown did not appeal. 
Reasons p.9-10 [Court of Appeal]
 
7. In all his gambling establishments, the Applicant offered his 
customers blackjack games which were played under certain rules. These 
"Turmel rules" - which included a limited rotation of the role of the 
bank to the players and excluded any fees to the house - represented 
an attempt by the Applicant to avoid the four specific elements of 
s.197(1)(b).
Reasons p11-13,27,28 [Court of Appeal]
 
8. While substantially the same blackjack rules prevailed in all of 
the operations run by the Applicant, the Respondent takes issue with 
the references in the Application to "same evidence" being led against 
him concerning the Carling Avenue operations in 1989 as was led 
against him in 1996 over the operation of the premises on St. Laurent 
Blvd. and Baxter Rd. Only the Blackjack rules and the keeper of the 
premises (the Applicant) remained the same; the evidence led on each 
location involved a different time-frame and a different location. 
Reasons p18,20,23  [Court of Appeal] 
 
B. Facts relevant to the statutory interpretation of s.197(1)(a)
 
9. The evidence on whether the establishments at St. Laurent Blvd. and 
Baxter Rd. were "kept for gain" was led in the form of financial 
analysis of their operations and statements from the Applicant's 
employees and undercover police officers.
Reasons p26  [Court of Appeal]
 
10. The St. Laurent location was described as a "full-fledged casino" 
with around 20 uniformed employees and between 75 and 100 customers in 
attendance and eventually operated 24 hours a day with a gross monthly 
income of $600,000. At Baxter Rd., five Blackjack tables were observed 
in operation and monthly net revenues from this location were as high 
as $30,000. The Applicant's wage costs for one month were $175,000. 
His general manager estimated total yearly profits at $1,000,000. 
Reasons p26-27  [Court of Appeal]
 
11. Expert evidence was led by the Crown to demonstrate that these 
revenues came from the Blackjack tables under the "Turmel rules." 
While these "Turmel rules" may not have infringed s.197(1)(b), they 
gave the revenue-generating advantage to the house run by the 
Applicant. First, the rules only provided for a limited rotation of 
the role of the bank and even this limited rotation was loosely 
enforced. To even out the house's advantage, the role of the bank 
would have to go to the players half the time. It did not. Second, 
under the "Turmel rules" a player could only be bank against the 
house. The true advantage of being bank is in facing several players 
at once which allows the bank to collect on the busted hands by going 
last during each round. Therefore, even under the Turmel rules, the 
keeper of the game retained his lucrative position. As the Applicant's 
general manager stated: 
     The casino makes its money from the Blackjack tables. It's what 
pays the bills. If you take out the Blackjack tables you wouldn't make 
any money. If you don't make money, the casino wouldn't be here. 
Reasons p27-28  [Court of Appeal] 
 
C. Facts relevant to sentence
 
12. The Applicant had a related criminal record and had recently been 
sentenced to four months for keeping a common gaming house. In this 
case, he was given a suspended sentence with three years probation, 
200 hours of community service and a victim surcharge of $2,500. An 
overly-restrictive probation term concerning the Applicant's ability 
to gamble was redrafted by the Court of Appeal. 
Reasons p2,32-33 [Court of Appeal]
R. v Turmel [1995] O.J. No. 2683 C.A.
 
PART II: 
STATEMENT OF POINTS IN ISSUE
 
13. Does the application of autrefois acquit and res judicata in this 
case raise an issue of national importance or otherwise merit leave?
 
14. Does the interpretation of s.197(1)(a) of the Criminal Code raise 
an issue of national importance or otherwise merit leave?
 
15. Does the sentence imposed on the Applicant raise an issue of 
national importance or otherwise merit leave. 
 
PART III:
ARGUMENT 
 
A. Autrefois acquit and res judicata
 
16. The Court below ruled that the mere fact that the blackjack rules 
at the casinos were the same at the 1989 trial as were at issue in 
1996 did not allow for a plea of autrefois acquit nor raise concerns 
about res judicata and the rule against multiple convictions. The St. 
Laurent Blvd. and Baxter Rd. operations were distinct from the earlier 
one on Carling Ave. and were capable of independently supporting 
criminal liability. 
Reasons p18-20  [Court of Appeal]
 
17. Whatever was said by Judge Fontana in 1989 (and adopted by Judge 
Lennox a few days later) on the application of s.197(1)(a) to the 
"Turmel rules" was not clear enough to settle the issue through issue 
estoppel and make the 1989 acquittal binding on Judge Wright in 1996. 
Reasons p24-25 [Court of Appeal]
R. v. Von Rassel [1996] 1.S.C.R. 225
 
18. IN reaching this conclusion, the Court below relied on cases from 
the Supreme Court of Canada. In particular, the Court cited Dickson 
C.J. in R. v. Prince [1986] 2 S.C.R. 480 at p491:
     It is elementary that Kienapple does not prohibit a multiplicity 
of convictions each in respect of a different factual incident. 
Offenders have always been exposed to criminal liability for each 
occasion on which they have transgressed the law, and Kienapple does 
not purport to alter this perfectly sound principle. It is therefore a 
sine qua non for the operation of the rule against multiple 
convictions that the offences arise from the same transaction. 
Reasons p21-22  [Court of Appeal]
 
19. The "perfectly sound" nature of this principle is evident on the 
facts of this case. If the Applicant's submission (that Judge 
Fontana's ruling decides his case because the same "Turmel rules" were 
still in use the purpose for the 1996 trial) is correct, then the 
Applicant has been granted a personal, life-long exemption from 
prosecution no matter where and how many times he operates his private 
casino under those rules. This would not be a proper outcome, not one 
fair to other individuals who would not benefit from the same 
exemption.
Reasons p18  [Court of Appeal]
 
20. Instead of bringing into question the principle that different 
transactions do not bar subsequent prosecutions and warranting that 
that principle be revised by the Supreme Court of Canada, the facts of 
this case merely confirm the principle's wisdom. 
 
21. The authority cited by the Applicant for the contrary proposition 
was ably distinguished by the Court below. In R. v. Carrier (1951) 104 
C.C.C. 75 (Que. K.B.), the King's Bench in Quebec allowed a plea of 
autrefois acquit to be entered in a relation to a pamphlet allegedly 
containing false news. The accused had already been acquitted on a 
seditious libel stemming from the very same pamphlet. In City of 
Montreal v Rothman Realty (1963) 41 C.R. 372 (Mun Ct.), a municipal 
court in Montreal dismissed charges of operating a rooming house given 
a previous acquittal on the same charge relating to the same building. 
The Court below held that the similarities between the first and 
second prosecutions in those cases were greater than here and that 
those cases were simply examples of stare decisis (or judicial 
comity). 
Reasons p16-18  [Court of Appeal]
 
22. Even assuming that the cases cited by the Applicant are in 
conflict with the present one, neither Carrier nor Rothman Realty, 
supra, present the type of disagreement amongst appellate courts that 
is generally a hallmark of an issue of national importance. Further, 
if this HOnourable Court wishes to revise the law as it relates to 
judicial comity and res judicata issues, it is submitted that the 
Court might await to see how other courts of appeal deal with any 
conflict between the decision here and the cases relied on by the 
Applicant. 
 
23. The Court of Appeal's treatment of these issues is thorough and 
comprehensive. As such, it would provide a solid basis for any 
judgment the Supreme Court of Canada might wish to render on the 
subject. However, there is nothing controversial in what was said 
below that would warrant this Court granting leave in the first place.
 
B. The interpretation of "kept for gain" in s. 197(1)(a)
 
24. The Applicant also raises the issue of the interpretation of the 
phrase "kept for gain" in s. 197(1)(a). The Applicant characterizes 
the revenues from his casinos as direct "winnings," the fruit of a 
skilled gambler and his employee-agents. He argues that the term 
"gain" does not include "winnings" and is properly restricted to 
indirect gains from charging of fees or the sale of drinks and food in 
gambling establishments - practices he deliberately does not engage 
in. 
Reasons p28-30  [Court of Appeal]
 
25. As noted by the Court of Appeal, if the Applicant is right, then 
gambling provisions of the Criminal Code would not restrict gambling 
itself but only indirect gains from the sale of food or parking 
charges. The Court below accordingly declined to read in the term 
"indirect" next to "gain" as suggested by the Applicant. IN doing so, 
the Court followed the rule of statutory construction as set out in R. 
v. MacIntosh, [1995] 1 S.C.R. 686. 
Reasons p29-30,32  [Court of Appeal]
 
26. While it is admitted that "gain" in s.197(1)(a) has not been 
decisively interpreted by the Supreme Court of Canada, two cases from 
this Honourable Court guided the Court of Appeal's interpretation. In
both R. v. Rockert, [1978] 2.S.C.R. 704 and R. v. DiPietro, [1986] 
1.S.C.R. 250, the Court suggested that a common gaming house was one 
conducted for a business purpose or for profit. The Applicant's 
operation clearly fell within this definition. Therefore, not only is 
there no case-law in conflict with the statutory interpretation 
advanced by the Court of Appeal, but the interpretation advanced below 
is consistent with jurisprudence from this Honourable Court.
Reasons p30-32  [Court of Appeal]
 
27. Even if the Court of Appeal's interpretation was found to be in 
error, such an error would not raise an issue of national importance. 
With the widespread legalization of casinos operating under government 
supervision and open to the public, the role of the gaming provisions 
of the Criminal Code is likely to become less significant. 
See for instance:
Saskatchewan Gaming Corporation Act S.S. 1994 C S-18.2, s.2(b), 4 
Ontario Casino Corporation Act, 1993, S.O. 1993, C.25, 
s.2(1),5(c),S.8(2)
Gaming Control Act. S.N.S. 1994-5, C.4, s.3(b), 10(a), (b)
Act respecting the Regie des alcools, des courses et des jeux, R.S.Q. 
C. R-6.1, s.2, 23(4)
 
C. Sentence
 
28. The Respondent assumes that the Application with respect to 
sentence is made under s. 40 of the Supreme Court Act. It is submitted 
that the Applicant raises no new sentencing principle that might 
warrant this Honourable Court's attention and might remove the 
sentence imposed from the ambit of the appellate deference already set 
out in R. v. C.A.M., [1996] 1 S.C.R. 500. 
Supreme Court Act R.S.C. 1985, c. s-26, s.40(1)
 
29. It is also noted that the sentence at issue is not a custodial 
one, this further lessen any need for this Honourable Court to 
intervene. The performance of community service of the type ordered in 
this case will generally not produce undue hardship that might, by 
itself, raise an issue of national importance. 
 
PART IV: 
ORDER REQUESTED
 
30. That the application for leave to appeal be dismissed and that 
leave to appeal be denied.
 
31. The Respondent does not seek costs.
 
ALL OF WHICH IS RESPECTFULLY SUBMITTED BY:
 
Trevor Shaw
Of Counsel for the Respondent
Dated this 15th day of November 1996.
 
--
John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada
Box 111 Canada K2C 3L4, Tel/Fax:613-723-2739
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