Subject: TURMEL: Repost: Robin Hood Gaming House Appeal Judgment

From: [email-masked] (John Turmel)
Date: 18 Sep 1996 13:48:14 GMT

Appeal No. C21516
 
                     COURT OF APPEAL FOR ONTARIO
 
                  FINLAYSON, ABELLA and AUSTIN JJ.A.
 
Between:                           )
                                   )
HER MAJESTY THE QUEEN              )    John C. Turmel
                                   )    in person
                    Respondent     )
-and-                              )
                                   )    Trevor Shaw
JOHN C. TURMEL                     )    for the respondent
                                   )
                    Appellant      )    Heard: May 27, 1996
                                   )
                                   )
 
                         REASONS FOR JUDGMENT
 
FINLAYSON J.A.:
     On May 16, 1994, His Honour Judge Peter Wright of the Ontario 
Court of Justice (Provincial division) convicted the appellant, 
following his plea of "autrefois acquit," of keeping a common gaming 
house contrary to s.201(1) of the Criminal Code. On March 31, 1995, 
the appellant received a suspended sentence and a three year term of 
probation. The terms of the probation required inter alia that he 
perform 200 hours of community service, that he not communicate with 
any person known to him to have a criminal record with exceptions to 
be set out in writing by a probation officer, and that he not be found 
in any place where there is gambling with cards or dice for money 
except an establishment licensed for that purpose. The appellant was 
also ordered to pay a victim fine surcharge of $2,500 within 24 
months. He appeals both conviction and sentence.
     
APPLICABLE PROVISIONS OF THE CRIMINAL CODE
 
(A) PROVISIONS RELATING TO GAMING AND BETTING
 
     201. (1) Every one who keeps a common gaming house or common 
betting house is guilty of an indictable offence and liable to 
imprisonment for a term not exceeding two years.
     (2) Every one who
          (a) is found, without lawful excuse, in a common gaming 
house or common betting house, or
          (b) as owner, landlord, lessor, occupier or agent, knowingly 
permits a place to be let or used for the purposes of a common gaming 
house or common betting house,
     is guilty of an offence punishable on summary conviction. 
 
     197. (1) In this part 
"common gaming house" means a place that is
     (a) kept for gain to which persons resort for the purpose of 
playing games, or
     (b) kept or used for the purpose of playing games
          (i) in which a bank is kept by one or more but not all of 
the players,
          (ii) in which all or any portion of the bets on or proceeds 
from a game is paid, directly or indirectly, to the keeper of the 
place,
          (iii) in which, directly or indirectly, a fee is charged to 
or paid by the players for the privilege of playing or participating 
in a game or using gaming equipment, or
          (iv) in which the chances of winning are not equally 
favourable to all persons who play the game, including the person, if 
any, who conducts the game. 
 
(b) PROVISIONS RELATING TO SPECIAL PLEAS
 
     607. (1) An accused may plead the special pleas of
               (a) autrefois acquit,
               (b) autrefois convict, and
               (c) pardon.
          (3) The pleas of autrefois acquit, autrefois convict and 
pardon shall be disposed of by the judge without a jury before the 
accused is called on to plead further. 
 
     609. (1) Where an issue on a plea of autrefois acquit or 
autrefois convict to a count is tried and it appears
          (a) that the matter on which the accused was given in charge 
on the former trial is the same in whole or in part as that on which 
it is proposed to give him in charge, and,
          (b) that on the former trial, if all proper amendments had 
been made that might then have been made, he might have been convicted 
of all the offences of which he may be convicted on the count to which 
the plea of autrefois acquit or autrefois convict is pleaded,
          the judge shall give judgment discharging the accused in 
respect of that count. 
 
ISSUES
 
     There are three issues in this appeal:
     (1) Whether the common law doctrine of double jeopardy, 
encompassing the special plea of autrefois acquit, was available to 
the appellant, either on the basis that a prior acquittal converted 
the appellant's operation of a gaming house into res judicata, or on 
the basis of the common law plea of issue estoppel.
     (2) Whether the appellant's winnings from the game of blackjack 
constitute a "gain" within the meaning of s.197(1)(a) of the Code.
     (3) Whether the sentence was fit.
     A detailed analysis of the proceedings before Wright P.C.J., and 
related proceedings, is necessary to understand the arguments on the 
first two issues. 
 
OVERVIEW OF THE PROCEEDINGS
 
     The appellant was charged on July 21, 1993 with keeping a common 
gaming house contrary to s.201(1) of the Code, at two locations in 
Ottawa, one on Baxter Rd. (Turmel's Games Room) and the other on St. 
Laurent (Casino Turmel). The appellant's defence was that he had been 
acquitted on April 7, 1989, of keeping a similar gaming operation at 
the Bayshore Hotel on Carling Avenue in Ottawa.
     With respect to the Carling Avenue premises, in addition to 
charges being laid against the appellant for keeping a common gaming 
house contrary to s.201(1) of the Code, charges were laid against four 
other individuals for being found in a common gaming house contrary to 
s.201(2) of the Code. At the trial of the alleged "found-ins" before 
His Honour Judge Fontana of the Ontario Court of Justice (Provincial 
Division), the appellant testified for the Crown as to the manner of 
operation of the game of blackjack. Fontana P.C.J. found that the 
Carling Avenue establishment was not a "common gaming house" within 
the meaning of s.197(1) of the Code and acquitted the four accused (R. 
v. Booth April 3, 1989, unreported Ont. Ct. (Prov. Div.)). A few days 
later, the appellant was tried before His Honour Judge Lennox of the 
Ontario Court (Provincial division) on the charge of keeping the 
Carling Avenue gaming house contrary to s.20191). Relying on the 
finding of Fontana P.c.J. at the trial of the "found-ins" that the 
Carling Avenue casino was not a "common gaming house" within the 
meaning s.197(1), Lennox P.C.J. acquitted the appellant of keeping the 
Carling Avenue casino (r. v. Turmel April, 1989, unreported Ont. Ct. 
(Prov. Div.)). The Crown did not appeal the acquittal in either case. 
     As noted earlier, in July, 1993, the Crown laid the instant 
charges against the appellant for keeping the gaming houses at St. 
Laurent Boulevard and Baxter Road. On the basis of his acquittal by 
Lennox P.C.J. on the Carling Avenue charge, the appellant entered a 
plea of autrefois acquit. The plea was struck by Wright P.C.J. and a 
plea of not guilty was entered on the appellant's behalf. On May 16, 
1994, the appellant was convicted by Wright P.C.J. of keeping common 
gaming houses at Baxter Road and St. laurent Boulevard contrary to 
s.201(1) of the Code. It is from this conviction that the appellant 
appeals. 
 
PROCEEDINGS BEFORE FONTANA P.C.J.
 
     In the proceedings before Fontana P.C.J., entitled R. v. Booth, 
supra, four accused were charged with two counts each, the first count 
being that they were, without lawful excuse, in a common gaming house 
contrary to s.201(2)(a) of the Code and the second count being that 
they were, without lawful excuse, in a common betting house, also 
contrary to s.201(2)(a) of the Code. The four accused were found in 
the Bayshore Hotel on Carling Avenue in Ottawa, in a room rented by 
the appellant, where blackjack was played. 
 
     Fontana P.C.J. described the Bayshore Hotel premises on Carling 
Avenue and the mechanics of how blackjack was played there: 
          "The room in question was equipped with a certain minimal 
amount of gambling apparatus for the playing of cards, including decks 
of cards, a semi-circular green felt table, a shoe. Posters were 
prominently displayed in the room setting out the rules of the game. 
Mr. Turmel described the game as, "Atlantic Twenty-one" and throughout 
the course of evidence, the examination and cross-examination, 
reference was also made to the term "Black Jack". 
          There were additional general rules which are, in my 
opinion, of consequence in this case, the first being that anyone 
could be the bank at any time. And attendant upon that, a player who 
wished to enter the game must be the bank at least once before 
playing, and that, presumably, was so the individual would know how to 
be the banker and deal from the shoe in order to exercise right and 
opportunity to be the banker at any time... As Mr. Turmel indicated in 
his testimony, any player could be the banker all night as far as he 
was concerned...
          Refreshments were available but there was no charge for 
them... There was no fee to enter the game... There was no percentage 
or "rake-off" by the house on the wagering that occurred... if a 
player exercised his right to be a dealer, then that person played 
against him, that is Mr. Turmel, and not against the other players at 
the table. Those other players would then go to another game which 
would be played with an agent of Mr. Turmel at another table or 
perhaps play among themselves. Having regard to the criteria and the 
definition set out in the definition section, I do not consider this 
to be a consequential element in determining the lawfulness or the 
unlawfulness of the game."
 
     The Defence in Booth brought a motion for a directed verdict. 
Fontana P.C.J. granted the motion, and the charges were dismissed. In 
dismissing the charges, Fontana P.C.J. stated that s.197(1) of the 
Code defines "common gaming house" in five ways. In s.197(1)(a), 
"common gaming house" is defined as "a place that is kept for gain to 
which persons resort for the purpose of playing games." In 
s.197(1)(b), "common gaming house" is defined in four other ways 
according to the mechanics of how the game is played. Fontana P.C.J. 
found as follows:
          "On the evidence alleged by the Crown, and accepting the 
testimony presented on behalf of the Crown by Mr. Turmel, the 
operation in this occasion clearly does not fall into the first four 
categories. That is: a place kept for gain or for playing games where 
the bank is kept by one or more but not all of the players; where 
there is a rake-off to the house as is mentioned in subsection two; or 
where there is a fee charged. Clearly, none of those first four 
criteria apply. If the operation on this occasion is to be caught, it 
must be caught with respect to sub-subsection four which I quote:
          "Kept or used for purposes of playing games in which the 
chances of winning are not equally favourable to all persons who play 
the game, including the person, if any, who conducts the game.""
 
     Fontana P.C.J. identified the main issue in Booth to be whether 
the chances of winning the game were equally favourable to all 
players. He decided that, on the mechanics of the game as played at 
the Bayshore Hotel on Carling Avenue, the chances of winning were 
equally favourable to all players:
          "While there was a small advantage to the banker\dealer, 
nevertheless that opportunity to be the banker \dealer was available 
to all players who participated in the game...
     The advantage that is derived to an individual by reason of his 
own skill and in playing the game, in no way confers an unfair 
advantage as contemplated by the Section."
 
     The appellant is a skilled gambler who has made large winnings at 
all of his casinos. The issue before Wright P.C.J. at the appellant's 
trial on the Baxter Road and St. Laurent Boulevard charges was whether 
winnings count as "gains" within the meaning of s.197(1)(a). The 
appellant argues that Fontana P.C.J. considered this issue at the 
trial of the found-ins when he stated that "the Carling Avenue 
operation... clearly does not fall into the first four categories. 
That is: a place kept for gain..." This passage is the basis for the 
appellant's submission that the principles of autrefois acquit, res 
judicata, and issue estoppel were applicable at his trial before 
Wright P.C.J.; he argues that Wright P.C.J. was bound to acquit him 
because the issue whether winnings are gains was decided in his favour 
by Fontana P.C.J. and later by Lennox P.C.J. who adopted the reasons 
of Fontana P.C.J. 
 
PROCEEDINGS BEFORE LENNOX P.C.J.   
 
     In the proceedings before Lennox P.C.J., entitled R. v. Turmel, 
supra, the appellant was acquitted of keeping a common gaming house at 
the Bayshore Hotel on Carling Avenue contrary to s.201(1) of the Code. 
Lennox P.C.J. explained the relationship between the Booth case and 
the case before him as follows:
          "My brother Judge Fontana, a short time before I commenced 
that trial, heard a charge of being a found-in or found-ins in a 
common gaming house at the same address between the same dates...
          I understand that it is common ground that the evidence 
called in the course of that proceeding for all practical purposes are 
identical to the present matter and that any argument that would have 
been advanced in this matter, was already advanced before His Honour 
Judge Fontana... I am aware of the decision of Judge Fontana and of 
its result." 
 
     Lennox P.C.J. in Turmel adopted the reasons of Fontana P.C.J. in 
Booth with respect to the issue whether the Carling Avenue premises 
constituted a gaming house within the meaning of s.197(1):
          "In Judge Fontana's decision, essentially, as I understand 

Lãÿ(êit is that there was no evidence that there was, in fact, a gaming 
house being kept on the premises.
          I would have difficulty, because of that finding, in 
rendering what would essentially be a contradictory verdict on what I 
understand to be, basically, the same facts. 
          I would propose, without further specific consideration, in 
view of the necessity, in my view, of avoiding contradictory decisions 
on the same matter on the same evidence, to follow the Ruling of Judge 
Fontana.
         In my view, it would be an error on my part at this point in 
time to consider delivering a contradictory verdict on what amounts to 
an argument at law, that being a complete absence of evidence. In 
those circumstances... I propose, simply, to adopt the reasons, for 
the purposes of this trial, of Judge Fontana and the result."
 
     Accordingly, Lennox P.C.J. allowed the defence motion for a 
directed verdict and the charges against Turmel were dismissed.
 
PROCEEDINGS BEFORE WRIGHT P.C.J. 
 
     The proceedings before Wright P.C.J. are the subject matter of 
this appeal. Wright P.C.J. described the gambling operations at the 
St. Laurent Boulevard and Baxter Road locations as follow:
          "Mr. Turmel had purchased and owned professional game 
playing tables at both premises. Food and non-alcoholic beverages were 
served to the patrons free of charge. The public was invited to attend 
at both premises for the purpose of playing blackjack with Mr. Turmel 
and his employees or poker with Mr. Turmel and other patrons. Mr. 
Turmel and his employees would act as cashiers.
          The Casino Turmel and Turmel's Games Room were attended for 
the purpose of playing games such as blackjack and poker, and the 
court was further advised that there was no fee required to enter the 
premises. A patron could buy into a game at two hundred dollars. Games 
were played with poker chips which were sold by cashiers in 
denominations of two dollars fifty cents to five hundred dollars. If a 
player chose to become dealer/banker for blackjack, the player would 
leave the table if there were more than one player present, or stay at 
the table and all the other players would leave the table. This player 
would then become the dealer/banker against Mr. Turmel or one of his 
employees. Patrons were not allowed to bank against other patrons...
          It is indicated that the premises were operated as a 
professional organized playing venue with all the paraphernalia such 
as blackjack tables, poker tables, chairs, playing tables, playing 
chips, cards, card dealing shoes, food, beverage, that there were 
monitors for taking cash and playing chips, a doorman, as well as 
camera and surveillance equipment...
          The operation [at the St. Laurent location] was much bigger 
than at Baxter Road, a full-fledged casino with many employees, two 
games of blackjack and "hold 'em", a type of poker. He [an undercover 
police officer] estimated that there were seventy-five to one hundred 
people in attendance." 
 
     The main issue before Wright P.C.J. was the proper interpretation 
of the definition of "common gaming house" in s.197(1)(a) as "a place 
kept for gain." The blackjack rules at St. Laurent Boulevard and 
Baxter Road were designed to ensure the game fell outside the 
definitions of "common gaming house" in s.197(1)(b); no player was 
prohibited from keeping the bank, no portion of the bets on or 
proceeds from the games were paid to the appellant, no fee was charged 
for the privilege of playing, and the odds of winning, assuming equal 
skill among players, were equally favourable to all. The parties 
agreed that the Crown had to prove that the Baxter Road and/or St. 
Laurent Boulevard premises were "kept for gain" within the meaning of 
s.197(1)(a).
 
     Wright P.C.J. proceeded on the premise that Fontana P.C.J. and 
Lennox P.C.J. decided whether the Carling Avenue casino was a "common 
gaming house" by considering s.197(1)(b), but not s.197(1)(a). Wright 
P.C.J. stated:
          "Were the Crown proceeding under s.(b), I would find that it 
has not been established beyond a reasonable doubt that there was a 
bank kept by one or more but not all the players or in which the 
chances of winning were not equally favourable to all, given the 
signs, rules and equal opportunity to be banker/dealer, or that the 
accused has been shown to fall under any of the other headings as set 
out under (b)... 
          Were the Crown proceeding under (b), it follows that in 
accordance with the Booth decision, I would enter an acquittal based 
on the facts that are before me.
          The Crown proceeds today on a different definition and that 
is the definition found under (a) which provides that a "common gaming 
house" means a place that is kept for gain to which persons resort for 
the purpose of playing games. If the charge against Mr. Turmel turns 
on the meaning of the word "gain", does gain include winnings?"
 
     The Appellant Turmel assumes that by not charging players for 
food or drinks, or for the privilege of gambling, he kept his 
operations outside the s.197(1)(a) definition of common gaming house 
as a place kept for gain. He states in his factum on appeal:
          "As long as I didn't violate one of the four (b) definitions 
in the subset [i.e. s.197(1)(b)] of illegal ways of winning chips out 
of the games by taking a rake-off from pots, charging a fee to play, 
excluding anyone from being the banker or having some advantage others 
did not have "and as long as we didn't violate the (a) definition by 
playing where someone's cash register was gaining money, I was never 
perturbed when the police came in to my private halls to check out my 
games..." [Emphasis added.] 
 
     It is not disputed that the appellant is an exceptionally skilled 
professional gambler who supported his establishments and paid his 
employees out of his large winnings. Because he is exceptionally 
skilled, the rule prohibiting players from banking against anyone but 
him or an employee of his helped him make large winnings. But he 
argues his winnings are not "gains" within the meaning of s.197(1)(a) 
because he earned them by skill, the odds being equally favourable to 
all players. 
 
     However, Wright P.C.J. interpreted "gain" in s.197(1)(a) to 
include winnings:
          "I conclude that this was a business, a commercial activity 
on a large scale. There is no evidence of any indirect gain or income 
whatsoever, only from the business of gambling directly.
          There is no other reason for the places to have been kept 
other than to produce income. I conclude that gambling income does 
come within the meaning of (a), and I must conclude that the charge is 
proven, and there will be a finding of guilty."
 
     The appellant argues that his gambling operations at St. Laurent 
Boulevard and Baxter Road were the same as his operation at Carling 
Avenue impugned in the earlier decisions of "Booth" and "Turmel." He 
contends that with no evidence of any change in the gambling 
operations, Wright P.C.J. was precluded from convicting him by 
interpreting the word "gain" in s.197(1)(a) of the Code differently 
than did Fontana P.C.J. and Lennox P.C.J. 
 
     In rejecting the appellant's argument that the principle of "res 
judicata" applied to bar him from interpreting "gain" differently than 
did Lennox P.C.J. and Fontana P.C.J., Wright P.C.J. held as follow:
          "In relation to the argument of res judicata raised on the 
last day, I am satisfied that the defence cannot succeed. Whatever the 
determination with respect to the meaning of "kept for gain", I am 
satisfied that it is a distinct issue and question of law from the 
issues which were raised in the previous cases in R. v. Booth and R. 
v. Turmel, Ottawa. Further, in respect of R. v. Booth, the parties are 
not the same persons." 
 
ANALYSIS
 
     ISSUE (1) Whether the common law doctrine of double jeopardy, 
encompassing the special plea of autrefois acquit, was available to 
the appellant, either on the basis that a prior acquittal converted 
the appellant's operation of a gaming house into "res judicata," or on 
the basis of the common plea of issue estoppel.
 
     The meaning of the plea of "autrefois acquit" is explained by 
Dickson J. for the Supreme Court of Canada in R. v. Riddle (1980) 
S.C.R. 380 at p385: 
          "One of the fundamental rules of the criminal law is 
expressed in the maxim, nemo debet bis vexari pro una et eadam causa, 
no person shall be placed in jeopardy twice for the same matter. By 
the special plea of "autrefois acquit," founded upon that maxim, the 
accused says simply that he has been previously acquitted of the 
offence with which he is now charged; that offence is res judicata, 
i.e. it has passed into a matter adjudged. A second prosecution is, 
therefore, not open. In the case at bar, the respondent says that the 
assault alleged in the first information has become converted into res 
judicata or judgment. 
          The classic statement of the principle is found in Hawkins' 
Pleas of the Crown (1726), Bk. II, c.35, p368:
               "That a man shall not be brought into danger of his 
life for one and the same offence more than once. From whence it is 
generally taken, by all the Books, as an undoubted consequence, that 
where a man is once found "not guilty" on an indictment or appeal free 
from error, and well commenced before any court which hath 
jurisdiction of the cuase, he may by the common law in all cases 
whatsoever plead such acquittal in bar of any subsequent indictment or 
appeal for the same crime. 
          In short, when a criminal charge has been once adjudicated 
by a court having jurisdiction, the adjudication is final and will be 
an answer to a later information founded on the same ground of 
complaint." 
 
     The appellant relies on two decisions to argue that the plea of 
"autrefois acquit" is available to him: R. v. Carrier (1951), 104 
C.C.C. 75(Q.K.B.) and City of Montreal v. Rothman Realty Ltd (1963), 
41 C.R. 372 (Mtl. Mun Ct.). In "Carrier," the appellant appealed his 
conviction of publishing false news contrary to s.136 of the Code on 
the grounds that he had previously been acquitted of publishing a 
seditious libel contrary to s.134 of the Code. The court, in 
overturning the conviction on the principle of "autrefois acquit," 
found that although the appellant was charged with two different 
offences, because the impugned pamphlet was the same in both cases, 
the outcome of the seditious libel case was determinative for the 
purpose of deciding the false news case. The court stated at p.84:
          "In the first indictment it was said: "The document contains 
a seditious libel and in the second it is said: "The document is of a 
nature to occasion injury or mischief to the public interest." This 
second charge forms part of what the Code calls "seditious offences." 
Nowhere does the Code define what is understood by the words "whereby 
injury or mischief is occasioned to any public interest." But read in 
the context the Court believes that if this document was not seditious 
it could not have the effect of causing, criminally, such injury or 
mischief to the established authority.
 
     The court held that the applicability of the principle of 
"autrefois acquit" depends on whether the first matter on which the 
appellant was arraigned was the same, in whole or in part, as the 
second matter on which it is proposed to prosecute him. If, by making 
the necessary amendments to the indictment, the accused could have 
been convicted of the second charge, the principle applies and no 
prosecution should lie.
 
     The appellant argues that in "Carrier," the impugned pamphlet was 
the same on both indictments. The indictment in the seditious libel 
case could have included the false news charge: only the charge and 
the date and location changed. In the case on appeal, the charge 
before Wright P.C.J. was the same as the charge before Lennox P.C.J., 
as in "Carrier," the date and location had changed. The appellant 
submits that the "Carrier" case should be taken to mean that changes 
in the date and location of an offence are insignificant, therefore, 
Wright P.C.J. should have applied the principle of "autrefois acquit." 
 
     However, in "Carrier," the content of the pamphlet was the most 
important part of the both cases; Drouin J. of the Quebec Court of 
King's Bench applied the principle of "autrefois acquit" because the 
pamphlet in the false news case was identical to the pamphlet in the 
seditious libel case. Similarly, in "City of Montreal v. Rothman 
Realty," supra, Lachapelle Mun.Ct.J. dismissed the charge of operating 
a rooming house on the grounds that the accused had previously been 
acquitted of the same charge in relation to the very same building. 
The appellant relies on "Carrier" and "City of Montreal" as precedents 
for his plea of "autrefois acquit," but, on principle, these two cases 
are better reconciled as applications of the doctrine of "stare 
decisis." 
 
     In the case under appeal, while it is true that the blackjack 
rules at the Baxter Road and St. Laurent Boulevard casinos appear to 
have been much the same as the blackjack rules at the Bayshore Hotel 
on Carling Avenue, it is clear from the reasons of Wright P.C.J. that 
the features of the premises at Baxter Road and St. Laurent Boulevard, 
including their size and location and the scope of the gaming 
operations as a whole, were important considerations in his conclusion 
that the premises constituted places "kept for gain." The appellant 
argues that Fontana P.C.J.'s finding that the Carling Avenue casino 
was not a "common gaming house" constituted a finding that blackjack, 
wherever played in accordance with the rules testified to by the 
appellant, will survive scrutiny under s.197(1) of the Code. While not 
expressing himself in these terms, the appellant apparently treats the 
judgment of Fontana P.C.J. as a judgment "in rem" converted into a 
judgment "in personam" when adopted by Lennox P.C.J. The appellant 
submits that he can never be prosecuted for an offence arising out of 
the playing of blackjack as long as it is played in accordance with 
the "Turmel rules," on the grounds that his version of blackjack has 
been found not to contravene the Code. He arrives at this conclusion 
by arguing that Fontana P.C.J., in acquitting the found-ins in R. v. 
Booth, vindicated the appellant's version of the game; that Lennox 
P.C.J., in adopting Fontana P.C.J.'s judgment acquitted the appellant 
because his version of blackjack did not constitute his premises a 
common gaming house. Accordingly, he submits, Wright P.C.J. erred in 
distinguishing the appellant's earlier acquittal by Lennox P.C.J. on 
the basis that the Crown introduced evidence not proffered in the 
earlier proceedings. 
 
     But that the Carling Avenue premises were not kept for gain is 
not determinative of whether the St. Laurent Boulevard or Baxter Road 
premises were kept for gain, even if the rules of blackjack were the 
same at all three casinos. That the findings of Fontana P.C.J. and 
Lennox P.C.J. might be "persuasive" before Wright P.C.J. does not mean 
those findings justify the special plea of "autrefois acquit." In my 
view, the appellant's argument confuses "autrefois acquit" with the 
doctrine of "stare decisis" whereby Wright P.C.J.'s deliberations were 
constrained, but only to the extent he felt bound by judicial comity, 
to interpret the meaning of "gain" in s.197(1)(a) in the same manner 
as his colleagues Fontana P.C.J. and Lennox P.C.J. The plea of 
"autrefois acquit" was not applicable in the proceedings before Wright 
P.C.J., even accepting the appellant's assertion that Lennox P.C.J., 
in acquitting the appellant of the Carling Avenue gaming house charge, 
decided the issue whether winnings count as gains under s.197(1)(a). 
Wright P.C.J. was entitled to reconsider that issue on new evidence 
because pursuant to s.609(1)(a) of the Code, for the appellant's plea 
to succeed, "the matter on which he was given in charge" before Lennox 
P.C.J. must have been "the same in whole or in part" as the matter on 
which he was given in charge before Wright P.C.J. 
 
     The  only evidence on our record is that the blackjack rules were 
largely the same at Carling Avenue, Baxter Road, and St. Laurent 
Boulevard. The appellant argues that this identity of rules grounds 
the plea of "autrefois acquit;" he argues that since blackjack was 
played the same way at all three premises, the acquittal with respect 
to one of the premises is determinative of his innocence of keeping a 
common gaming house at the other two premises. But if, despite the 
identity of the blackjack rules, the "matter" in the three cases is 
not the same, in whole or in part, within the meaning of s.609(1)(a), 
then the appellant's plea must fail. The appellant was not on trial 
before Fontana P.C.J. and he cannot rely upon that judgment "per se." 
He must rely upon the adoption of that judgment by Lennox P.C.J. to 
argue that the matter of his guilt on the charge of keeping a common 
gaming house at the Carling Avenue premises was the same as the matter 
before Wright P.C.J. of his guilt on the same charge at the Baxter 
Road and St. Laurent Boulevard premises. But on authority, the 
"matter" before Lennox P.C.J. was not the same as that before Wright 
P.C.J. because the matters involved different factual transactions. 
 
     Ewaschuk, in "Criminal Pleadings and Practice in Canada," 2d ed. 
(Aurora, Ontario: Canada Law Book, 1996) suggests at p.14-13 that two 
matters are the same within the meaning of s.609(1)(a) only when they 
arise from a single factual transaction:
          "Questions for determination on the special plea of 
"autrefois acquit" or "autrefois convict" are:
               (a) whether the accused has previously been finally 
convicted or acquitted "on the same factual transaction;" [Emphasis 
added.]"
 
     The "same factual transaction" means not two transactions having 
identical facts, but one transaction giving rise to multiple charges. 
For example, in R. v. Prince, (1986) 2 S.C.R. 480, the respondent was 
convicted of causing bodily harm to a pregnant woman by stabbing her 
in the abdomen. The respondent was later charged with manslaughter in 
respect of the child, who died after a premature birth. The respondent 
moved for a stay of the manslaughter proceedings on the basis of the 
principle of R. v. Kienapple, (1975) 1 S.C.R. 729. According to the 
"Kienapple" principle, an accused may not be prosecuted for two more 
more substantially similar offences if the offences arise from the 
same cause or matter. The issue in Prince was whether the Kienapple 
principle applied to bar the manslaughter proceedings. Dickson C.J. 
stated in "Prince," at p.491:
          "It is elementary that "Kienapple" does not prohibit a 
multiplicity of convictions, each in respect of a different factual 
incident. `Offenders have always been exposed to criminal liability 
for each occasions on which they have transgressed the law, and 
"Kienapple" does not purport to alter this perfectly sound principle. 
It is therefore a "sine qua non" for the operation of the rule against 
multiple convictions that the offences arise from the same 
transaction. [Emphasis added.]"
 
     Consistent with this statement, Martin  Friedland states as 
follows in "Double Jeopardy (Oxford: Clarendon Press, 1969) at p.213:
          "Most courts agree that multiple convictions and punishments 
for violating the "same" statutory provision are permissible when each 
is brought about by a different physical act." 
 
     In "Canadian Criminal Procedure, 4th ed. (Aurora, Ontario: Canada 
Law Book, 1984), Salhany states, at p.252, that a plea of "autrefois 
acquit" is grounded, not in the similarity of the facts giving rise to 
multiple prosecutions, but in the similarity of the offences, arising 
out of a single transaction, on which an accused is prosecuted:
          "It is provided under section 537(1) [now s.609(1)] that if 
the "matter" of the earlier charge is the same in whole or in part as 
the later charge, and if the accused might have been convicted of all 
offences on the earlier charge (assuming that all proper amendments 
had been made that could have been made) of which he may be convicted 
on the later charge, a plea of "autrefois convict" or "autrefois 
acquit" is applicable. `The term "matter" here refers to offences and 
not the facts. Accordingly, the true test is whether the two charges 
relate to offences which are similar and not whether the facts in both 
cases are similar.' [Emphasis added.]"
 
     What is clear, in my view, is that multiple prosecutions under 
the same statutory provision are permitted if each prosecution arises 
from a different physical act. An accused can be charged twice, for 
the same offence, if the charges arise from separate transactions. 
What is equally clear is that if an accused is convicted with respect 
to the first transaction, he or she cannot plead "autrefois convict" 
when charged with the second. What should be equally clear on 
principle is that if an accused is acquitted with respect to the first 
transaction, he or she cannot plead "autrefois acquit" when charged 
with the second. If the appellant Turmel had been convicted by Wright 
P.C.J. on the Baxter Road and St. Laurent Boulevard charges `before ' 
being tried by Lennox P.C.J. on the Carling Avenue charges, an 
argument before Lennox P.C.J. of "autrefois convict" would surely have 
failed, since accused persons are answerable to society for each 
occasions on which they transgress the law. Since a prior conviction 
could not ground an argument of "autrefois convict" on a later trial 
of the same charge arising from a new transgression, neither should a 
prior acquittal ground an argument of "autrefois acquit" on a later 
trial of the same charge arising from a new transaction. The pleas of 
"autrefois acquit" and "autrefois convict" should be treated as 
symmetrical; both pleas require that the previous verdict arise from 
the same transaction on which it is later purported to try the 
accused. 
 
     I have not found an authority in which the principle of double 
jeopardy is expressed in these terms but on principle, it appears to 
me that the pleas of "autrefois acquit" and "autrefois convict" are 
the two sides of the double jeopardy coin. Both an acquittal and a 
conviction terminate the proceedings, and subject to remedies on 
appeal, each verdict is final and binding as between the citizen and 
the state. But the verdicts cover transactions past, not future. They 
do not preclude, "per se," other prosecutions. The acquitted citizen 
is in no better position than a convicted one if he or she should 
later break the law.  This does not mean an accused is without remedy 
if he or she feels a prosecution following an acquittal amounts to 
harassment. As I have indicated, the court may rely on "stare decisis" 
to grant relief and, in a proper case, the remedy of a stay for abuse 
of process is available both at common law and under the Canadian 
Charter of Rights and Freedoms. 
 
     The final obstacle to the appellant's double jeopardy argument is 
that there is some ambiguity whether Fontana P.C.J. and Lennox P.C.J. 
turned their minds directly to the issue whether winnings count as 
gains within the meaning of s.197(1)(a). This ambiguity must be 
resolved in favour of the respondent Crown because the principles of 
"res judicata" and "issue estoppel" apply only when an issue was 
clearly decided in a previous litigation. In R. v. Van Rassel, (1990) 
1 S.C.R. 225, the Supreme Court of Canada rejected the respondent's 
argument of issue estoppel, at p.238-239:
          "The rule that a court should not rule on an issue that has 
already been decided by another court is a fundamental principle of 
our system of justice. The fact that a matter has already been the 
subject of a judicial decision may raise an estoppel against the party 
seeming to relitigate the matter. This is the principle of issue 
estoppel, and it too is related to the principle of "res judicata." 
Issue estoppel is recognized in Canadian criminal law: Gushue v. Queen 
(1980) 1 S.C.R. 798. 
          The respondent suggests that issue estoppel could not apply 
with respect to a foreign criminal judgment since the parties involved 
are not the same. It will not be necessary to decide this point since 
it is well established that the principle applies only in 
circumstances where it is clear from the facts that the question has 
already been decided. Laskin C.J. wrote in "Gushue," at 807:
               "I am of opinion that the question of issue estoppel in 
respect of the robbery conviction is put to rest by the following 
statement, which I adopt, in Friedland, Double Jeopardy j(1969), at 
p.134: 
                    "The possibility or even the probability that the 
jury found in the accused's favour on a particular issue is not 
enough. A finding on the relevant issue must be the only rational 
explanation of the verdict of the jury.""
          Similarly, Salhany in "Canadian Criminal Procedures, supra, 
states at p.255:
               "Before issue estoppel can apply, the court must be 
satisfied that the issue sought to be estopped has been clearly and 
unequivocally decided by the court in the first proceeding as a 
fundamental step in the logic of the decision."" 
 
ISSUE (2)      Whether the winnings from the game of blackjack 
constitute "gain" within the meaning of s.197(1)(a) of the Code. 
 
ADDITIONAL FACTS RESPECTING THIS ISSUE
 
     During the period covered in the information, the appellant kept 
the alleged gaming houses at Baxter Road and St. Laurent Boulevard. 
The scale of the gambling operations at these locations necessitated 
the employment of dealers, cashiers,and runners. At the St. Laurent 
Boulevard operations, which an undercover officer described as "a 
full-fledged casino,"  18 to 20 uniformed employees were observed 
serving an estimated 75 to 100 customers. At the Baxter Road location, 
the officer saw seven blackjack tables, five of which were observed in 
operation at one time. The appellant admitted having 100 employees and 
monthly wage costs of $175,000 in January of 1993. Business was so 
good that eventually, the St. Laurent location casino operated 24 
hours a day. 
 
     The appellant made expenditures on advertising in print and by 
mail; on free bus transportation of patrons from Montreal, on the 
provision of free food and drink; and on video surveillance equipment. 
In an 18-day period covered by a police audit, over $26,000 was spent 
on promotions and $5,800 on food provided free to customers. The rent 
at the Baxter site was $500 per week and at St. Laurent Boulevard 
$2,500 per week. 
 
     The appellant earned impressive revenues. In October 1992, the 
appellant stated that his net revenue from the Baxter operation was 
$20,000 to $30,000 per month. For January 1993,the appellant claimed 
gross revenues from his Ottawa casino of $600,000. He made between 
$350,000 and $450,000 per year from gambling. 
 
     In his statement to police, the appellant's former general 
manager, Donald Cribbie, described the bonuses he received as a 
percentage of the casino profits. He conservatively estimated yearly 
profits of the combined operation at $1,000,000. A forensic audit over 
an 18-day period confirmed that weekly earnings after salary expenses 
were close to $25,000. 
 
     The appellant's rules for blackjack provided that the role of the 
"bank" would be rotated to the players. Expert evidence was led that 
there is an "edge" associated with being the bank because hands that 
"go bust" [over 21] are forfeited to the bank and because the bank 
always plays last. While the player does have certain options not 
available to the bank, such as insurance and doubling down, the party 
holding the bank still has a theoretical edge of .88 percent -- 
assuming players are using the optimum strategy. In practice, given 
the varied level of skill among players, the average industry "drop" 
in favour of the house is 15 percent. Only if each can be the bank 
half of the time is the edge shared equally between the house and the 
players. 
 
     The evidence was that the bank did not rotate form the house to 
the players in an equal manner, but only in a restricted manner that 
did not confer on the customers the full advantages that go with being 
the bank: the players could only be the bank against one player, 
namely the house (Mr. Turmel or one of his employees), not  against a 
number of other players, which deprived the players of an advantage 
normally associated with being the bank: Turmel's rules obliged each 
player to be the bank only once in the evening, not fifty percent of 
the  time; and the rules in question were only loosely enforced and 
the undercover officer who took the stand only infrequently observed a 
customer being the bank. 
 
     Given the volume of gambling at issue in this case, the edge in 
practice retained by the house helped create substantial revenues for 
the appellant. Between $1,500 and $24,000 an hour was being wagered at 
the appellant's tables. Donald Cribbie stated:
          "The casino makes its money from the blackjack tables. It's 
what pays the bills. If you take out the blackjack tables you wouldn't 
make money. If you don't make money the casino wouldn't be there." 
 
ANALYSIS:
 
     The appellant took no issue with any of the above evidence. 
Indeed he proclaimed in this court that he was running the games to 
make "winnings," as he preferred to style his gains. While the 
evidence and the argument focused on the game of blackjack, the 
appellant readily conceded that he made money from all the card games 
played at his casinos. He was successful in consistently winning 
because he was an exceptional card player and, he argued, his 
"winnings" did not constitute "gains" under s.197(1)(a) of the Code. 
In his submission, so long as the operation of his casinos avoided the 
four pitfalls of the s.197(1)(b), he was committing no offence by 
being a winner because the Code proscribes indirect gains but not 
direct gains from the playing of the games themselves. He likened his 
operations to a situation where a person invites friends over for a 
game of poker, provides refreshments (free), and ends up with most of 
the pots. 
 
     I agree with the Crown that the appellant's interpretation of 
s.197(1)(a) is much too narrow. It contemplates reading into 
s.197(1)(a) the word "indirect" to modify "gain." It would exclude 
"profit" from these business operations called casinos. It is quite 
true that almost all the published judgments deal with convictions 
respecting infractions of the four subsections of s.197(1)(b), but as 
the Crown points out, this is because historically that is the 
simplest method of prosecuting a keeper of a gaming house. I cannot 
accept that an operation of the magnitude of that described in the 
evidence before us does not constitute keeping a common gaming house 
for gain. If the appellant's argument is valid, prosecutions could 
only succeed under s.197(1)(b) where that specified conduct can be 
identified. The appellant's comparison between his operations and 
friendly poker games is of little assistance. There comes a point 
where a game ceases to be friendly and becomes commercial gambling, an 
activity prohibited by Parliament. I agree with the following 
statement from the factum of the Crown: 
          "By restricting s.197(a) to indirect gains only, the gaming 
provisions of the Code would read down to mere prohibitions on casinos 
charging for drinks or parking. This would be contrary to the clear 
objective of the provision which is to restrict commercial gaming 
itself." 
 
     This statement appears to be supported by authority, limited as 
it is on this specific point. In Rocker et al, v. Queen, (1978) 2 
S.C.R. 704 the trial judge convicted the appellants of unlawfully 
keeping a common gaming house contrary to s.201(1) of the Code. The 
Ontario Court of Appeal dismissed the appellant's appeal. The issue 
before the Supreme Court of Canada was whether the term "common gaming  
house" in s.179 of the Code could be interpreted to permit a 
conviction where the premises in question were used for gaming on only 
one occasion. 
 
     The majority of the Supreme Court reversed the Court of Appeal 
and overturned the convictions, holding in part that a business 
purpose  test should not be imported into s.197(1)(b) of the Code 
because a business purpose test was already contained in s.179(1)(a). 
Estey J., writing for the majority, made clear that the test whether a 
place is "kept for gain" is a business purpose test. He stated at 
p.707:
          "It is reasonable, in my opinion, to import a business 
purpose test into the second definition in the face of the express 
words employed by Parliament in the immediately preceding portion of 
gain. that requirement has for many years been interpreted loosely  as 
"kept for business purposes"..."
 
     Estey J.'s insistence that s. 197(1)(a) contains a business 
purpose test suggests that a place is "kept for gain" within the 
meaning of the section when the place is run as a commercial 
enterprise for profit. There is no distinction drawn in the Code or in 
the analysis of Estey J. between profit made indirectly form sales and 
profit made directly from winnings. 
 
     The appellants in DiPietro v. Queen, (1986) 1 S.C.R. 250 were 
convicted of keeping a common gaming house contrary to s.201 of the 
Code. The appellants owned an establishment called "Corrado Billiards" 
where pool and cards were played and refreshments were sold. 
Customarily, the loser of the Italian card game of "scalaforti" would 
purchase coffee for the other players. The Ontario Court of Appeal 
dismissed the appellants' appeal from conviction. The Supreme Court 
reversed the Court of Appeal and overturned the convictions, holding 
that wagering, or the chance to win or lose money or money's-worth, 
was a necessary element of the offence of gaming, but the custom 
whereby the loser bought the winner's refreshments did not satisfy the 
wagering requirement. 
 
     Referring to the definition of common gaming house, Lamer J. for 
the majority, stated at p.258 that the first two requirements of the 
definition, keeping a place and making a gain, were satisfied because 
"the appellants admitted that they are the proprietors of Corrado 
Billiards and that they profit from this "undertaking." "Profit from 
this undertaking" is a broad phrase that does not, unless read down, 
suggest that profit must be made indirectly from the sale of 
refreshments but not directly from the playing of the game. 
 
     Consistent with the principles of statutory interpretation set 
out by the Supreme court of Canada in R. v. McIntosh, (1995) 1 S.C.R. 
686, I see no reason to read down the plain meaning of s.197(1)(a) so 
as to interpret "gain" to include indirect gains but not direct 
winnings. 
 
DISPOSITION ON CONVICTION APPEAL
 
     For the reasons given with respect to issues (1) and (2), I would 
dismiss the appeal against conviction. The plea of "autrefois acquit" 
was not available and Wright P.C.J. was not bound by precedent to find 
that the appellant's version of blackjack was legal. He was also 
correct in his finding that the "casinos" in question were common 
gaming houses as being places kept for gain to which persons resorted 
for the purpose of gaming. 
 
ISSUE (3) Whether the sentence was fit.
 
     The appellant was given a suspended sentence and three years 
probation. He was ordered to pay a victim fine surcharge of $2,500 and 
to perform 200 hours of community service. He was prohibited from 
patronizing unlicensed gambling establishments and from associating 
with persons with criminal records. 
 
     On an application to stay the sentence pending appeal, this 
court, on September 8, 1995, affirmed the terms of probation with the 
following variations: the prohibition on patronizing unlicensed 
gambling establishments was varied to a prohibition on illegal 
gambling, and the prohibition on associating with persons with 
criminal records was varied to a prohibition on associating with 
persons with criminal records was varied to a prohibition on 
associating with persons with records for gambling. 
 
     In sentencing the appellant, Wright P.C.J. considered the 
following aggravating factors: the appellant's related criminal 
records, his recent 4-month jail sentence for gambling, the size of 
his proceeds from gambling, the evils of unregulated gambling in 
general, and the need for general deterrence. He considered the 
following mitigating factors: the appellant's co-operative attitude 
during the investigation and trial, his substantial volunteer and 
community work, his pledge not to set up other casinos, the fact that 
he is not a dishonest or violent individual, and the fact that this 
was a test case on the issue whether winnings count as gains under 
s.197(1)(a) of the Code. 
 
     In this court, the appellant submits that the issues in this case 
are novel and his prosecution should be treated as a test case. I 
think the case is novel. On the other hand, the appellant was treated 
leniently. An operation of this nature could easily have attracted a 
custodial term, especially given that the appellant has previously 
been sentenced to jail for gambling. The sentence imposed by Wright 
P.C.J. properly reflects the mitigating factors. I am satisfied that 
the magnitude of the operation justifies the sentence imposed and that 
Wright P.C.J. committed no error in principle. I would revise the 
sentence only to the extent of giving effect to the changes to the 
probation order made by this court on September 8, 1995. 
 
     Accordingly, I would grant leave to appeal sentence and allow the 
appeal to this limited extent. 
 
Finlayson J.A.
Abella J.A.: "I agree." 
Austin J.A.: "I agree." 
 
--
John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada
111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739
All TURMEL topics to newsgroup: can.politics
Abolish Interest Rates