Subject: TURMEL: Robin Hood Gaming House Appeal Analysis

From: [email-masked] (John Turmel)
Date: 18 Sep 1996 13:31:33 GMT

TURMEL: "Project Robin Hood" Casino Turmel Appeal Analysis
 
     This is the case of a card room acquitted of being a gaming house 
and with no change in the operations, was charged once again with the 
safe offence.

     I'm going to comment on some of the more revealing comments from 
the Casino Turmel appeal:
 
:
:                       ONTARIO COURT OF APPEAL
:                  Justices Finlayson, Abella, Austin
:              R. v. Turmel, keeping common gaming house 
:For the Appellant: John Turmel 
:For the Crown: Trevor Shaw
:
     I explained that as a professional card player for 22 years who 
had had my game acquitted by Judges Fontana and Lennox of being 
illegal in 1989. The Crown did not appeal. I set up larger and larger 
games and was hoping to make a million a year just playing Poker. 
     I mentioned that upon finding out that police were just going to 
re-raid me anyway, rather than suffer physical imprisonment anew, I 
applied to the Ontario Court of Appeal to grant an extension of time 
for the Crown to file an appeal of my acquittal. Presiding Justice 
Finlayson explained I couldn't start the Crown's appeal against my 
acquittal, I could only start an appeal against a conviction. And the 
Crown did not want to appeal Judges Fontana and Lennox because they 
had already made plans to shut me down and re-try the same charges. 
Three months later, they raided again. 
 
:     ABELLA: Let me stop you for a moment, Mr. Turmel. I just want 
:be clear that the place that was raided in 1993 was exactly the place 
:and operation that resulted in your acquittal in 1989? 
:     TURMEL: Well, it was a different location. But the judge himself 
:said there was no evidence of any change in the operations at all. 
:
     Here, I should have also mentioned that the two Statements of 
19 Agreed Facts were identically worded and why I would have been so 
stupid as to change anything?  
 
:     ABELLA: The only change was location?
:     TURMEL: That. And time. It was a different year. 
:     ABELLA: Right.
:     TURMEL: And of course, you'll note in the Crown's factum, the 
:only argument they use against my getting the protection of issue 
:estoppel, autrefois acquit and res judicata is that they were different 
:times and places. Everything else was the same. 
 
      I mentioned that you can expect to lose half a bet an hour to me 
whether you're playing Poker or Blackjack but all the judges ruled you 
were losing it to me fairly and legally. 
     I asked: 
 
:     So, two issues, whether or not the second judge's conviction 
:was correct and the first judge's acquittal wrong, or vice versa. 
:     And whether the second judge had any right to hear the same 
:evidence at second time at all. 
 
     Since I knew they could have no evidence of anything new as I had 
not been so stupid as to change anything, I was offering the Crown a 
chance to appeal. But they needed to shut me down while we were 
fighting and appealing my acquittals meant I'd be open and with 
Fontana's decision in my quiver and they'd be on the defensive. They 
chose to ignore the autrefois acquit, res judicata and issue estoppel 
protections supposedly afforded by my previous acquittal to gain the 
offensive by throwing me in jail again and approaching the Court of 
Appeal with the Wright transcript while the Fontana transcript was not 
on the agenda. 
 
:     And if you'll note on Point 23 of the Crown's factum, they say 
:that: Even if we have no right to be here on issue estoppel, res judicata 
:and autrefois acquit, even if everything had been dealt with by Judge 
:Fontana so that we have no right to do it a second time, do it anyway. 
 
     I parsed Judge Fontana's ruling to show that he did not fail to 
rule on section (a) but had actually ruled on it four times. 
     After the break, I continued that Fontana had dealt with 5 
sections and pointed out how even Judge Wright had initially though 
so. 
     I pointed out all jurisprudence had section (a) dealing with 
indirect gains and section (b) with direct gains from the games and 
that it was the court who was making this a test case.
     I pointed out my judge said making a living playing cards at home 
was now keeping my home for gain and pointed out that Justice Labrosse 
had said:
:     There's no difference between playing your home and playing in 
:a licensed establishment." 
     Judge Austin pointed out that it was not part of the endorsement 
but I noted that he had said it. 
     Finally, I asked for some mercy on the sentencing conditions on 
this Crown test case if they don't grant my appeal. 
 
:     FINLAYSON: Why were you running this game?
:     TURMEL: Absolutely, to make winnings, not gainings. 
     I should have mentioned that I was spending the winnings so much 
on helping the poor that the police had called the raid "Project Robin 
Hood."
     I seemed to have difficulty getting the court to see the 
difference keeping the place for win and keeping the place for gain 
and luckily I have brought along my chart. 
 
:CHART: 
:                                  /\
:                                /    \
:                              /        \
:                            /   PLACE    \
:                          / KEPT FOR GAIN  \
:                        /      TO WHICH      \
:                      /   PERSONS RESORT FOR   \
:                     |       THE PURPOSE OF     |
:                     |                          |
:                     |      --------------      |
:                     |      |            |      |
:                     |      |  GAMBLING  |      |
:                     |      |   TABLE    |      |
:                     |--------------------------|
:$ Valet Parking                                      Video Games $
:                              + G.S.T. 
:$ Entry Fee                                              Photos $
:
:$ Coat-check         Drink $             Food $           Smoke $
:
     I pointed out that gain was possible without the game being there 
and only became illegal when the game arrived. I pointed out that win 
was not possible without the game being there and only became illegal 
when gain was being derived indirectly by the house. 
     I hope they can make the distinction between the gain out of 
keeping the house and the win out of keeping the game. 
     I stressed that Judge Wright had stated that there was no 
evidence of any change in the operations and that he had no right to 
be considering the same facts again. 
     I had to explain to Judge Austin that not being able to bank the 
others didn't matter to the fairness of the game with me.
 
:CROWN TREVOR SHAW:
:     SHAW: Thank you. I think Mr. Turmel's submission is correct. 
:The rules of Blackjack may not have changed from case to case. The 
:fact is it's very important the way the rules were carried out. And 
:so it's not just a technical objection to the res judicata point that 
:there were different times and different locations. It's also that 
:the evidence led was different. There was undercover evidence led 
:to point out the real nature of the rotation of the bank. 
     Again, this is arguing that there was something wrong with the 
rotation of the bank even though Judges Fontana, Lennox and Wright 
found that the opportunity to rotate had been sufficient. 
     The fact is that both cases had the same Statement of 19 Agreed 
Facts and as the Crown admitted, there were no facts in dispute. If 
there were no facts in dispute, why was there all this evidence of 
facts already admitted? 
 
:And there 
:was both accounting and undercover evidence led concerning the volume 
:of transactions and most of this evidence concerned the game of Blackjack, 
:simply because the Poker itself, with no rake-off, would be neutral. 
:
     As I keep pointing out, a judge once said "the notion of gain 
should not be embarrassed by the amount." Here again we have the Crown 
getting into the amount.
     That the Crown called the million a year I expected to win at 
Poker was neutral and wasn't part of the objection of the Crown fails 
to take into account that all three judges have already ruled that the 
50:50 U-may-bank rule made the million I expected to win at the 
Blackjack neutral too. 
     That is the Crown's main thesis: The Poker winnings were neutral 
and not subject to the section but the Blackjack winnings were not 
neutral because of the bank rotation and were subject to the section.
 
:     And so for the Appellant to be before you and say that this judgment 
:makes illegal Poker games at home, I don't think is the point because 
:the evidence that was led clearly that it was the Appellant's dominant 
:position as bank at Blackjack games that brought in revenues. 
     You cannot say that it was the dominant position as the bank that 
gave me my hourly half-a-bet winning rate over most players at 
Blackjack. It is the fact I am a card counter and most players are 
not. And the Appellant's dominant skill at Poker brought in hourly 
half-a-bet revenues too. 
 
:And 
:it was from Blackjack that the Appellant was able to at the end of 
:his day to net approximately a thousand dollars a day from the operation 
:of these casinos. 
     And it was from the Blackjack that the Appellant was able to at 
the end of his day to net approximately two thousand dollars a day 
from the play at the $25/$50 Poker game.
 
:     Also I think if you're thinking about the person having the week- 
:end game of Poker, you should also ask yourself whether you'd be having 
:that in a large locale that was at a weekly rent of $2,500? Would 
:you have over 100 employees working for you? Whether you as the holder 
:of that game in your living room would be operating with a large number 
:of agents in the running of it? 
     Others might not need large staff and space but if providing 
tables and staff for six other poker tables helps me keep my high-
stakes table full, there is good reason for me to provide free cards 
for large groups of people. 
 
:     And I think that all that information is legally significant 
:when you look at whether it was kept for gain or not. And while there 
:is perhaps not a case right on point, I'll be taking you later to 
:Supreme Court jurisprudence, on the business nature of this undertaking. 
:But at this point, I just want to bring to the facts that make this 
:case distinctive. 
:     With respect to the Res Judicata counter-point, I think that 
:if you look at the portions of Justice Fontana's ruling, he's quite 
:correct that he says he takes the view that there is no, in this case, 
:no basis for the first definition, which is definition (a) kept for 
:gain.
:
     CROWN ADMITS FONTANA DID SECTION (A)!
 
:     However, at Tab 6 page 7, I'd explain how there is any hope that 
:res judicata might apply. This is a case involving people found in 
:the casino, which is a separate offence. And a few days later, Mr. 
:Turmel's case came before a different judge, Justice Lennox, who in 
:the name of "comite," it's transcribed as "comedy" but it's really 
:comity, decided to follow the ruling that had been given earlier and 
:that's how arguably the same parties are involved even though in this 
:case location and time and type of police investigation were different. 
:
     And the fact that Justice Lennox did follow the Fontana decision 
based on the same facts and made the same ruling. Judge Lennox's 
ruling on my facts of the same gaming house was identical to the 
found-ins facts of the same gaming house. The Crown has no right to 
impugn the acquittal by Judge Lennox as lacking consideration of the 
facts. 
     Judge Lennox was looking into whether the winnings of the keeper 
were a violation of the gaming house laws. Judge Fontana was looking 
into whether the losings of the found-ins were a violation of the 
gaming house laws. It can only have been of benefit to Judge Lennox to 
have Judge Fontana rule on the losings before making his decision on 
the keeper's winnings. 
     In the present case, no found-ins were charged and Judge Wright 
was not going to have the benefit of any judgment on the found-ins 
losings and would just solely from the point of view of the keeper's 
winnings. 
 
:     At page 7, Justice Fontana refers to the five ways of proving 
:
     AGAIN, THE CROWN ADMITS FONTANA DID MENTION ALL FIVE WAYS     
 
:a common gaming house. And notice the (a), (b) and (b) has four components. 
:He then says:
:     "On the evidence alleged by the Crown and accepting the testimony 
:presented on behalf of the Crown by Mr. Turmel," who was an expert 
:Crown witness in that case, "the operation in this occasion clearly 
:does not fall into the first four categories. That is a place kept 
:for gain or for playing games where the bank is kept ..." and he lists 
:out simply the provisions.. refer to the definitions of 197(1) where 
:common gaming house is defined. And it mentions being defined in 5 
:ways. That you only get 5 ways if you include (a) in there. 
:
     THAT'S RIGHT. FONTANA INCLUDED (A) TO GET 5 WAYS
 
:     And so, I'm in agreement that that section is mentioned. 
:
     So the Crown had no right to charge me a second time. Why didn't 
he give up? 
 
:However, as Justice Wright in this case found, that's not a binding 
:rule. 
:
     No. That's not what Judge Wright said. He said that Judge Fontana 
had not done (a) and that's why he could be trying me on (a). 
 
;It's 
:an obiter comment on a provision that a judge finds inapplicable. 
:
     It's not a mere comment. Judge Fontana did cite it four times. 
 
:And I think it would be stretching notions of autrefois acquit and 
:res judicata to say that on the basis of those mentions, particularly 
:when the judge finds another basis for liability, that the Appellant 
:then has an "in rem" declaration that he can take to any situation 
:and confront any police investigation and then go on and say that 
:because of these comments by Judge Fontana, you no longer can prosecute. 
:
     That's exactly what I'm saying. Once Judge Fontana rules that I'm 
not violating any of the 5 gaming house definitions, I did take that 
as an "in rem" declaration that I could take to any situation and 
confront any police investigation and then go on and say that because 
of these comments in the ruling of Judge Fontana, you can no longer 
prosecute. Once a judge has ruled that my activity is not breaking the 
law, you can no longer prosecute. That's what this is all about. 
Otherwise, an acquittal would be no protection at all. 
 
:     ABELLA: So you're saying ... that even though he mentions sections 
:(a) and (b), notwithstanding his reference to those sections, the 
:equivalent isn't based on what sections? It's open to another judge 
:to say that there's no autrefois acquit?
:
     I'm glad to hear Justice Abella accept that "he mentions sections 
(a) and (b)." 
 
:     SHAW: No. I'm saying that if you look at the judgment as a whole, 
:the evidence that you relied on were the rules. 
:
     That's not complete. The evidence relied on were the rules and 
the admitted facts that there were refreshments but there was no 
charge for them. 
 
:And I agree that those 
:rules on a piece of paper remained constant throughout the cases and 
:I don't think that given that, in fact, we have different evidence 
:here and a quote, relies a quote in which he mentions the "for-gain" 
:provision not applying is prefaced by "on the evidence alleged by 
:the Crown." I don't think that you can take that assertion and plug 
:it into every situation in which Mr. Turmel may be, with the same 
:rules, running a casino. 
:
     The whole point is that you can take that assertion and plug 
itinto every situation in which I'd be in, with the same rules, 
running a casino. Why would I change a successful formula?  
 
:     ABELLA: How would the rules of res judicata be applied to a 
:situation like this where someone who behaves in a certain way is 
:brought before the court because of that behavior? Is acquitted? At 
:what point would that person be entitled to rely on that court in a 
:subsequent charge in the same factual set of circumstances? 
:
     Great question. How many times do I have to be acquitted before I 
can rely on the acquittal in a subsequent charge? This lady seems to 
be aware of the double-jeopardy implications. 
 
:     SHAW: I think that is an entirely legitimate point and the Appellant's 
:first of two cases, both which I've included in the Book of Authorities, 
:Rothman Realty in the Quebec Municipal Court and the other is Carrier 
:out of the Quebec King's Bench Court sitting as a single judge.
:
     Rothman's and Carrier are my two perfect cases for autrefois 
acquit. (Autrefois acquit is French for "formerly acquitted." I wonder 
if this is some kind of reverse strategy where the Crown makes my 
"entirely legitimate point" for me and then somehow argues against it. 
 
:     In the Rothman case, there's a rooming house that's being operated 
:in a certain way contrary to municipal by-laws it is alleged and there 
:is, two years prior to the charge that was at issue in Rothman, there 
:had been an acquittal in the same house, the very same house is again 
:charged and it is admitted in judgment that no facts had changed. 
:An admission that I am now making before you. My admission is only 
:that the rules have remained continuous. 
:
     He didn't put this very well. It was actually an apartment house 
charged and acquitted of being a rooming house and charged two years 
later with again being an illegal rooming house though there had been 
no evidence of any change in the operations. Autrefois acquit applied
 
:     And in the Carrier case, it was a seditious libel case in which 
:the same pamphlet again was and in those cases, there is an identity 
:of the evidence before the court. 
:
     This one is hardly explained but it's the pamphlet charged and 
acquitted with being acquitted and later charged with being seditious 
again. It was a different offence on a different date at a different 
place but the court ruled autrefois acquit applied. 
     In my case the Crown is arguing that autrefois acquit doesn't 
apply because it's a different date and place and they produced both 
decisions where it was ruled that date and place were irrelevant. 
 
:In this case, there's not an identity. 
:There is in fact a different Crown theory that is exclusively section 
:(a) in this case 
:
     As if the fact that they're concentrating totally on (a) this 
time when the last time they spent time on both (a) and (b) makes a 
difference? 
 
:and there is a different investigation. In this case, 
:there was extensive accounting evidence and undercover evidence that 
:was led about the way in which the Blackjack was played out.
:
     So they base their new charge on evidence of facts that have been 
admitted and accounting of results that are irrelevant. 
 
:     ABELLA: Tell me, why doesn't the Rothman case apply? Is it because 
:you did it better the second time? And you did more research the second 
:time? Is that..
:
     It is a good question. Technically, the rules say that if the 
Fontana decision is a mistake, then some sort of appeal of it must be 
made. But if the Fontana decision is right, then only changes in 
legislation may be made. 
 
:     SHAW: No. It's not better. It's simply different in the fact 
:that in the initial cases, the allegations were not made that this 
:was a commercial operation. 
:
     Incorrect. The Bayshore Hotel game was admitted as a professional 
operation. The Statements of Agreed Facts were identical so only the 
Crown's interpretation has changed. 
 
:And that the heart of the "for gain" provision 
:has to be a business operation and here you have before you the type 
:of accounting evidence that is required to prove that. And it was 
:simply not adduced. 
;
     They're trying to make the business of gaming the crime even 
though professional gamblers have been in the business of gaming for 
years and they've have not outlawed the business of gaming like they 
outlawed the business of betting. 
 
:     ABELLA: So you're saying? "we're trying him again but this time 
:we want to come at him from a different way." Is that allowed?
:
     That's the whole point of all these double-jeopardy pleas. It is 
not allowed and you can fight it with autrefois acquit (formerly 
acquitted), issue estoppel (stop arguing, its' been decided) and res 
judicata (the matter has been decided.)
 
:     SHAW: If he keeps committing the offence. I think that it's open 
:to someone to come at it again. 
:
     That's the whole point of these pleas based on acquittals. I'm 
don't keep committing the offence when it's been judged not to be an 
offence. 
     This is unfair. They take offence at what has developed and 
choose to ignore that the activity has been adjudged not to violate 
any of the five sections of the gaming house laws. 
     
:I mean, to take an egregious example, 
:if someone keeps robbing a bank and uses the same way way to rob banks.
:
     Unfair example. He's talking about a crime of doing something 
where date and place are very relevant to the autrefois acquit. We're 
talking about the crime of being something where date and place are 
irrelevant. 
 
:     ABELLA: How would someone who's been acquitted of, let's take 
:the Rothman case, offering a rooming house without a permit. The subsequent 
:charge was dismissed because the court said he did not xxxx a certificate. 
:It was a different fact situation. They said:
:     "nonetheless, the court ruled you can't come back two years 
:later." You're saying you can come back two years later, if you get a 
:better accountant to show a set of records? You can never rely on 
:acquittal. 
:
:     SHAW: No. You can rely on acquittal but you can't rely on, if 
:you continue that behavior, the police not investigating other aspects 
:of your behavior and then coming to court and charging you for those 
:other aspects. 
:
     You can rely on the acquittal but you cannot rely on it if you 
continue that acquitted behaviour. It assumes that one of the aspects 
has been left unchecked by the first court. This has been the issue of 
previous debate and everybody now agrees that Fontana did deal with 
all five aspects of what is a gaming house.
 
:And the other aspects in this case are, not only the 
:accounting information but the undercover evidence as to the true 
:rotation of the bank in Mr. Turmel's operations. 
:
     Here he's back to the rotation of the bank not realizing that 
every judge has so far ruled that the fair opportunity provided was 
sufficient.  
 
:     So it's not just an improvement of the case, it's actually taking 
:a different approach, too. 
:
     Actually, it happens to be the identical approach in 1989. The 
issue was whether two man rotation where I could play with everyone 
and everyone could only play with me was fair. Judge Fontana spent 
most of his time on this question and ruled that with 50:50 chance to 
the bank, how many people I was fliping coins with had no effect on 
your chances at flipping coins with me. 
 
:The approach that's been taken in most 
:of the cases and why this case is novel is simply to go on under the 
:very easy (b) definition in which the proof of it is simply on the 
:rules of the game. And Mr. Turmel is content to litigate that because 
:he has rules of the game that may fall outside the four prohibited 
:rules of (b). 
:
     So even though he keeps inferring that there was something wrong 
with the bank rotation, section (b1) and (b4), here he admits that my 
rules fall outside of the rules of (b). 
     This is what's unique about my case. The Crown admits that my 
winnings don't violate illegal (b) gambling activities while 
continuing to infer I had an unfair banking edge which has been 
repeatedly denied.  
     Now I find myself explaining the bank rotation to the court which 
I shouldn't have to be doing. 
 
:And it takes a lot more effort under (a) to prove a 
:"kept for gain" because you have to look at the operation as a whole. 
:
     No. You don't have to look at the gambling operation at all since 
gain is derived indirectly from sales by the house. All this 
accounting of direct winnings out of the game have nothing to do with 
any indirect gain from sales out of keeping the house. 
     Another point of confusion. They must figure that if they do a 
major accounting of the winnings, that will somehow infer 
commerciality without realizing that commerciality of direct gambling 
is not the crime, it's commerciality of indirect gain from sales 
around the gambling that's the crime. Because I chose to keep good 
books and pay my taxes is no reason to infer that the stigma of 
commercial indirect gain should apply to direct win out of the game. 
     And the court warned that it does not take a lot of effort to 
prove indirect gain. Just show a sales slip and do not embarass the 
notion of gain by discussion of the amount. 
 
:The fact that (b) provides an easy method of Crown proof I don't think 
:exempts you from a different approach. The "kept for "gain. A different 
:standard of liability. 
:     ABELLA: Can we get our hands on the original charge, Mr. Shaw? 
:     SHAW: Yes. Appeal book, page 35. 
:     ABELLA: Is this the 89 charge? 
:     SHAW: No. We do not have the 89 charge. 
:
     Isn't that fascinating. Here I've always said that the Crown had 
no right to be by-passing the Fontana appeal and the judge notes that 
it's really the most important thing that we need. 
     Instead of our being before the court with a transcript of an 
acquittal, the Crown has left that transcript behind and has 
approached the Court of Appeal with the transcript of a later 
conviction.
     The fact that the Justice asked for the 1989 charge signifies 
that it is the Fontana trial transcript that should have been under 
their consideration first and they have managed to skip over him 
completely. 
 
:     TURMEL: It is identically worded. 
:     AUSTIN: What you're saying if I understand it is that the first 
:time around, they didn't charge, the Crown objective was not to demonstrate 
:that he was running a business. 
:
     Since the business of gaming is not a crime, no, the Crown 
objective as not to demonstrate that I was running a business. It was 
to demonstrate that I was running a gaming house. 
 
:     SHAW: It was. The evidence, if you looked at the trial judge's 
:findings of fact, the evidence was led on the effect of the rules. 
:And those that is because it is essentially liability on the grounds 
:of (b). And so you'll find throughout the findings of fact, extensive 
:discussion of the rules. 
:
     And he keeps forgetting Judge Fontana's consideration of evidence 
of no refreshment sales. This was clearly not evidence related to the 
(b) gaming, it had to be related only to the remaining (a) gain. Sure, 
he spent most of his time on the rules and mutual exclusivity but it 
does not detract from his having spent time on the evidence of 
indirect gain and his finding that there was none. Even Judge Wright 
ruled that there was no indirect gain though he was not considering 
direct win as possible indirect gain. 
 
:     If I can be of assistance, if one were to take the view that 
:there was issue estoppel, I think that you'd be granting a kind of 
:"in rem" declaration that would prevent police from investigating 
:further activities of Mr. Turmel and finding out if, in fact, there 
:was evidence of related criminal activity? 
:
     If there is issue estoppel, I should be granted a kind of "in 
rem" declaration that would protect me freom police investigations 
as long as I don't change anything. I don't mind the police 
investigating to their heart's content. Our doors were always open. If 
they find evidence of criminal activity, I should be charged. But if 
they only find evidence of the same activity, yes, I should have the 
"in rem" protection to play without threat of state interference. 
 
:     FINLAYSON: Is it a fact that the other counts listed
:     SHAW: The other counts were withdrawn in that they involved betting 
:and it was agreed that this was not betting, it was gaming. 
:
     That's what got these clowns, sorry, Crowns, in this obvious 
double-jeopardy difficulty in the first place. 
     In 1988, it was Ottawa Crown Attorney Curt Flanagan who chose to 
charge my card game with being both a gaming house and a betting 
house. Case law says that if you influence the result, like cards, 
it's gaming but if you don't, like horse racing, it's betting. You 
don't book bets with cards. 
     Only after the gaming house charge had been thrown out did the 
Crown withdraw the betting house charge  
     In 1993, when they were desperately looking for some new way to 
charge me, Flanagan chose to inflate the indictment with two new 
bookmaking charges, "being in the business of betting" and "controlling 
monies from betting" added to the improper "keeping a betting house" 
and the proper but previously-decided "keeping a gaming house." 
     I couldn't use autrefois acquit, issue estoppel and res judicata 
on the three bookmaking counts and right up until the day of the 
trial, it looked like the court was going to be dealing with four 
counts even though I had made motion after motion trying to quash the 
betting house charges on the grounds that there was only card playing 
going on. Then on the day before the trial, the Crown announced that 
they were giving up and withdrawing all three of the betting house 
charges and going only on the gaming house charge. 
     I thought this was a strategic win on my part since their goal 
had to be to confuse the judge into believing there was something new 
being alleged. But we were now we're left with a perfect autrefois 
acquit. 
     The 1993 charges of keeping a gaming house were identical to the 
1988 charges. 
     The 1993 19 Agreed Facts were identical to the 1988 19 Facts. 
     The congruence was overwhelming. When the second judge looks at 
the Agreed Facts and admits that there is no evidence of change from 
1988, he has no right to be coming to a different conclusion. 
 
:     SHAW: I don't think that just because a certain pattern of behavior 
:is adopted that in one case may result in a provincial judgment in 
:an Appellant's favor that it is not open to a different fact situation 
:
     He's saying that there might be different fact situations even if 
a certain pattern of behavior is adopted. There can't be a different 
fact situation if a certain pattern of behavior is adopted and not 
changed. This is an elementary error. Once a pattern is set, you can't 
say that it's open to a different fact situation. 
 
:in a different location with a different police investigation, not 
:necessarily a better investigation with better evidence but different 
:evidence. 
:
     Different evidence of the same admitted factual situation. 
 
:To say that the individual can no longer be prosecuted... 
:
     Yes. To say that my acquittal means that I can no longer be 
prosecuted if I don't change my behavior. 
 
:If there's no unfairness in that the person is again allowed to defend 
:on the new basis of liability that is alleged against that person..
:
     It's all fair because I can still redefend myself. Ignoring that 
they skipped over Fontana's judgment into the higher court, it would 
seem that I should be grateful to be allowed to redefend myself even 
though the court is considering not the transcript of the trial of my 
acquittal but the transcript of the trial of my next conviction. 
 
     FINLAYSON: AUSTIN: This rooming house case. xxxxx an attempt 
:to prosecute the same rooming house?  
:     SHAW: Exactly, and it was admitted there was no change. 
:
     And the court ruled that you couldn't charge that rooming house a 
second time. You had to leave it alone until something changed, 
including legislation. 
 
:     ???: I have some difficulty with the concept of the acquitted 
:of keeping a common gaming house on xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
:     SHAW: I would have some trouble with that if the second prosecution 
:was also on the basis of the rules, the evidence introduced was simply 
:of the rules and that the rules had remained the same. 
:
     Again, he's making the assumption that no evidence of indirect 
gain was led despite Fontana's looking into refreshment sales. 
 
:Where it's 
:a distinct ground of liability, namely the running a business, and 
:you say that the earlier location was simply infringing the prohibitions 
:on certain Blackjack rules, in the second location which is, in effect, 
:run as an enterprise, and you lead expert evidence and accounting 
:evidence and undercover evidence. 
:
     The charge of being in the business of betting was withdrawn and 
the charge of being in the business of gaming was not laid because 
there is no charge for being in the business of gaming. So evidence of 
my running my business of gaming has nothing to do with my running a 
business for indirect gain. 
 
:I have difficulty in seeing how 
:the earlier case grants you an exemption from prosecution that, I 
:take it, as long as he would maintain his rules would be good for 
:all time and all places.  
:
     That's right. The earlier case, as long as it remains not 
overturned, should grant me an exemption from prosecution that, as  
long as I would maintain my rules, would be good for all time and all 
places.
 
:     FINLAYSON: xxxxx criminal charges against Mr. Turmel. xxxx have 
:to say "Well I xxxxx
:     SHAW: It's particularly worrisome given that there are only four 
:days between the two and one can only speculate whether the transcript 
:would have been available that quickly. Furthermore, 
:     FINLAYSON: This strikes me as the beginning of a xxxx of a different 
:xxx 
:     SHAW: I would agree and it's particularly critical on this issue 
:because it's only through Judge Lennox that you can get to Judge Fontana 
:because you'd have to operate a major operation in the law to say 
:that the case between Her Majesty and Booth created res judicata, 
:issue estoppel and autrefois acquit against Mr. Turmel unless you 
:accept the somewhat tenuous link that Judge Lennox's reasons provide 
:back to the Booth case.
:
     Again the Crown is inferring that the Fontana decision should not 
apply to me simply because it was followed by my Judge Lennox. Both 
judges saw the same evidence, judge Fontana looking at the found-ins 
losings and Judge Lennox looking at my winnings. When Fontana ruled 
that the losings weren't illegal, Lennox had to rule that the winnings 
were not either. 
     By not charging any found-ins in 1993, the Crown has prevented 
any consideration of the legality of the found-ins losings in their 
deliberations on the keepers winnings. They couldn't have another 
judge ruling "no illegal losses over here" when they needed a judge to 
rule "Turmel made illegal wins over here." 
     So the found-ins losings angle has been omitted until this week 
due to a fascinating stroke of fortune. 
     You might remember in my Factum where I mentioned how Gene Lo had 
been charged with being found-in a game where Dave Booth had been 
charged with keeping. Gene Lo and Tasso Paliovarkas had been found-ins 
at the Bayshore Hotel and been acquitted. Gene Lo could argue 
autrefois acquit. I represented Gene and 8 other found-ins but the 
Crown eventually gave up and withdrew the charges before they could 
get to court. 
     Guess who should have recently been busted at Blackjack game 
where they were scrupulously following Turmel-style rules to the point 
where each player banked at least once every shoe? Tasso Paliovarkas 
was charged with being a found-in at a game hosted by Ray Turmel who 
was also acquitted at the Bayshore game and could plead autrefois
acquit. 
     On Tuesday June 4, he fired his lawyer and appointed me agent for 
his Defence and I'm going to show him how to plead his autrefois 
acquit right to the top. Now there is going to be a chance to look at 
whether any of the losings at Turmel-style Blackjack or Poker are 
illegal again to help determine whether any of the winnings are 
illegal too. 
     There'll be no confusing accounting evidence as they try to prove 
that there was a gaming house. They're going to have to stick to the 
five sections and show that he was somehow victimized. And of course, 
without volumes of immaterial evidence, the issues will remain very 
clear. 
     So I'll soon post the Tasso case results as the Quebec courts 
provide audio-tape copies of their proceedings! 
  
:     FINLAYSON: xxxxx
:     SHAW: That's part of the problem if you go down the res judicata 
:route is that you freeze in stone some pretty early and preliminary 
:judgments and you'd have them stop the Court of Appeal from looking 
:at the merits of this case on the definition, the statutory interpretation 
:of "kept for gain," simply on those grounds. 
:
     The Crown wants the Court of Appeal go to into the new 
interpretation even if they're here on the wrong transcript. 
 
:     In effect, what you would be doing is, we would never get to 
:them, at least with Mr. Turmel because if you granted on res judicata 
:grounds, he could never be prosecuted provided he maintained the same 
:rules. 
:
     Again, that's what I expect my acquittal to mean as long as I 
don't change anything in the operations of my games. 
 
:And that's exactly the sort of abstract approach to the case, 
:to simply look at the rules and say they've been vetted by a provincial 
:judge before, therefore they can no longer be questioned, it leaves 
:the Crown without a remedy in this case, but more seriously, I think 
:it means that the issue is never going to be tested. 
:
     The Crown is now pleading that it is being left with no remedy 
when it turned down the right remedy of a Fontana appeal when it was 
offered. And they can still appeal the Fontana decision any time they 
want though I don't know how the Court of Appeal could get it into its 
jurisdiction until the Crown files an appeal.
     That's the problem here. The Crown has found a way of overturning 
Fontana's decision without dealing with Fontana's decision. 
 
:     I would like to make two points on this question of calxxxx, 
:an initial motion motion brought before Judge Wright to have the issue 
:decided. He concluded that at the preliminary stage of a pre-trial 
:motion, he would not rule on the res judicata point and when the trial 
:was over, he does return to that point and considers anew after having 
:heard all of the evidence in the case and if you go to his reasons 
:for judgment at page 28 of the Appeal Book, you'll see why he considers 
:that he is not bound by the earlier judgments and in particular, raises 
:the point that Justice Finlayson raised that Booth involves different 
:parties. 
:
     Again, this is a silly reason. Fontana's decision was 
for the found-in Booth and Lennox's decision was for the keeper 
Turmel. To say that because Judge Fontana wrote the decision on the 
same facts that Judge Lennox's adoption of the same reasons for 
acquittal somehow weakens the acquittal for keeping. Judge Lennox saw 
exactly the same 19 Agreed Facts which Judge Wright did and his 
judgment does have bearing on the contrary decision Judge Wright made 
on that same Statement of 19 Agreed Facts. 
     Not Judge Fontana. The Crown wrote the Statement of Agreed Facts 
for the Lennox case after the Fontana case had been heard and reserved 
on. Judge Fontana is not the judge who saw the 19 Agreed Facts Judge 
Wright saw. Judge Lennox did. Judge Fontana dealt with the found-ins 
losings and did not deal with the keeper's winnings. Judge Lennox did 
just as Judge Wright did. 
 
:     I think that given in particular that this case rests on statutory 
:interpretations and I'm now turning to that part of the argument but 
:
     That's my whole point. Nothing changed but the interpretation of 
the statute. And that should have been done by way of appealing 
Fontana, not by charging me again. 
 
:I think that it's relevant the transition from the other issue to 
:be wary of entrenching, by res judicata ruling, an issue of statutory 
:interpretation which this court is equally well-equipped as any other 
:court to consider. And to somehow hold that earlier ruling by Judge 
:Fontana in a different case at a different time with different facts 
:than provided here. Particularly since it's a matter that I can say 
:that had not been directly decided in the prior case. 
:
     Be wary of entrenching Fontana's ruling? Fontana's ruling isn't 
even before the court to be entrenched. If the Crown had done it 
right, it could be arguing not to entrench the Fontana decision but 
since they've conveniently found a way to leave it behind, it gets to 
argue not to entrench the Fontana decision which isn't even under 
appeal. 
 
:     I suggested in my Factum why that is the case. Why in most of 
:the prosecutions under section (a), it's always been indirect gains 
:which has being looked at. You'd get parking and drinks, mostly drinks 
:in bars and establishments, especially bars which attract customers 
:also run a table of card games. 
:
     After the number of times that I've repeated that section (b) 
deals with illegal wins from the game while section (a) deals with 
illegal gains from the house, they keep acting mystified why section 
(a) only deals with indirect gains for the house and not direct gains 
out of the game 
 
:     I simply suggest that the reason there's been no case to date 
:on this point 
:
     Imagine. No case to date on charging gainings which were not 
indirect. 
 
:is that most gaming games are secreted away and it's 
:much easier to prove, as the volume of evidence in this case shows, 
:it's much easier to prove an indirect gain such as the sale of a drink 
:than to prove the betting handle and percentage theoretical and industry- 
:wide gains, games and the actually playing of it, it takes a longer 
:energy to do that and that's what's been done in this case. 
:
     But all the evidence they've accumulated is an embarassing non-
essential to the elements of the charge. What's hard about determining 
sales or a rake-off or fee or bank exclusion or game edge? 
 
:     I think that as an initial starting point, you have to look at 
:the plain words of the section and I think "kept for gain to which 
:persons resort for the purpose of playing games" cannot, on any plain 
:reading of it, but apply to this situation. 
:
     Not kept for illegal gain to which persons resort and kept for 
legal gain when persons do not resort but kept for win to which 
persons resort for the purpose of playing games. 
 
:Everybody knew that Mr. 
:Turmel was involved in this for making a profit. In fact, 
:     FINLAYSON: He admits it. 
:     SHAW: And so I can't see how those aren't gains. 
:
     If you refuse to call profits at the table winnings, then of 
course, he can't see how those aren't gains. But they're not the type 
of gains defined in the case law. 
 
:I think that 
:the distinction made between winnings later in the later sections 
:gains here. They are synonymous as the dictionary suggests. 
:
     So even though there's no case law where gain includes winnings, 
since the dictionary does, the court should now do so too. 
 
:I think 
:that that distinction is too fine a one to be supported on the plainxxx 
:in the xxxxthe dockxx. In particular, we even looked at the French 
:version of that section which says, "un local tenu pour fins de gain:" 
:and then the section in English says "the winnings" "les chances de 
:gagner." And so it's the same term that's used in both subsections 
:of the French version. 
:
     And that's because the French word for "gain" is "gain" and the 
French word for "win" is "gain" also. Quebec courts regularly confuse 
winning with gaining and now the Crown wants to refer to the French to 
try to confuse this court in believing that there is no distinction 
between winning and gaining in English too. Case law begs to differ. 
 
:     FINLAYSON: winning     table  
:     SHAW: If you kept it in a business-like manner, they would be 
:infringing the section. 
:
     Professional gamblers have been making a living playing cards and 
keeping good tax records for years. Again, the business of gaming is 
not a crime and running your game in a business like manner is not an 
element of whether the game is a gaming house. It certaily is not 
relevant to whether a found-in was a victim. 
 
:If you hired employees and rented premises, 
:you would be keeping it for gain. 
:
     No. If you hired employees and rented premises, you would be 
keeping it for loss. If you also win a million a year, those expenses 
can be against winnings or gainings but are not gainings themselves.  
 
:I don't know what else to call the 
:sum of $600,000 a month that the Appellant has admitted to gaining 
:in the course of the operation of the casino. 
:
     I made no admission of any monthly gain. I didn't count it. 
Robin Hood just spent it as fast as it came in. Without counting it. I 
have no idea if I was grossing that much or if that included the 
payroll and employee tips which were not mine but I did pay well and 
did spent it all. 
 
:     And if I can take you to what Supreme Court jurisprudence there 
:is on this point, tab 4, the DiPietro case, and that's a classic where 
:the refreshments were sold and there's a card game going on on the 
:side and ultimately it's dismissed because there's been no wagering, 
:no proof of money being exchanged. However, there is reference made 
:page 258 to the sections we're interested in. 
:     You'll see a sidebar passage, you'll see that the constituent 
:elements of the offence are keeping a place for gain and then the 
:two other requirements which were admitted to in this case. 
:
     And once again, the constituent element is keeping the place for 
gain from sales of coffee and then the two other admissions in this 
case. It's not being in the business of gaming, it's being in the 
business of coffee-selling. 
 
:The first two elements of the offence were present as the Appellants 
:admitted that they are the proprietors of the Colorado Billiards and 
:that they profit from this undertaking. You have the same admissions 
:here but you have an admission of an enormous profit of the Appellant 
:and that he was the keeper of Casino Turmel. 
:
     No, they were profiting from indirect coffee sales while I was 
profiting from direct gambling winnings. 
 
:     And if I can take you to another Supreme Court case at Tab 3, 
:it's a case involving (b) definitions but the court distinguishes 
:and defines the (b) sections in contradistinction to the (a) section. 
:And this is the "business-purpose" test I was bringing to your attention 
:earlier. Page 707 You have to take the contextual approach to the 
:provisions: 
:     "It is unreasonable in my opinion to import the business purpose 
:test into the second definition in the face of the express words employed 
:by Parliament."
:
     And the business purpose test they're always talking about is the 
test for the business of indirect sales, never for the business of 
gaming directly. 
 
:      In the immediately preceding portion of the definition which 
:imports the closely-related notion of "gain." That requirement has 
:for many years been interpreted loosely as "kept for business purposes." 
:
     No. Gain has always been interpreted strictly as "kept for gain" 
whether as a business or not though businesses most often profit 
indirectly from the presence of a game. 
 
:And so the Supreme Court, albeit in obiter, is looking at how to define 
:(b) and to do that, looks at the way that (a) is to be interpreted. 
:And it says the key to looking at it is to look at whether it's kept 
:for business. 
:
     No. It looks at whether it's kept for gain out of indirect sales, 
business or not. 
 
:And that the notion that's most closely related to this 
:purpose are the gains that are made. And to say that there was not 
:a business in this case, that the reason that Mr. Turmel had so many 
:Blackjack tables going on, the reason that the bank was not rotated 
:in an equal fashion to the players, to say that that is not kept for 
:gain, is not a business, flies in the face of the facts. 
:
     The facts have always stated that John Turmel was a professional 
gambler in the business of legal gaming and to say that that is not 
kept for gain but for win, is a business, is the fact. 
 
:The reason 
:that there were so many Blackjack tables was that they were drawing 
:a profit. He had a theoretical edge as the bank at 0.88%. The expert 
:evidence led was that the industry average, because people don't all 
:play at an optimum theoretical level, was a 15% drop. So for every 
:dollar bet at the tables, there was 15 cents that went to the house. 
:
     And I had a half-a-bet per person at my Poker table edge which 
the Crown says is neutral. Why should my half a bet win at a fair game 
of Poker be neutral and legal and my half-a-bet win at a fair game of 
Blackjack be non-neutral and illegal? 
 
:     Now it's true he did rotate it and if you rotated it to a player, 
:he could only bank against another player. And so the advantage that 
:goes with being the bank facing several bets at once was diminished 
:when you were a player and wanted to be the bank. 
:
     Failing to grasp that not being able flip coins with the others 
while I can does not detract from the fairness of your flip according 
to Mutual Exclusivity, they will repeat this issue of not being able 
to play with others even though Judges Fontana, Lennox and Wright all 
said that it was the 50:50 coin that mattered, not who you could or 
couldn't play with. 
 
:You could only do 
:it one hand at a time. And while the edge would have been the same, 
:the fact that you could not have the advantage of betting against 
:multiple hands meant that you couldn't draw a profit. 
:
     "While the edge would have been the same" whether you were 
flipping coins with me or ten others, the Crown thinks that when you 
could not flip with ten others, it meant you couldn't take advantage. 
Again, failing to grasp Mutual Exclusivity, advantage is a function of 
the coins and not the number of people one can play with. 
 
:And the Appellant 
:was very jealous of the way those rules were exercised to keep the 
:bank the predominant portion of the time in his control because that's 
:how he made profits. 
:
     Wrong. I actually made more when I was the player than the 
dealer/banker at the Blackjack tables. Many of my agents had been 
taught to count cards too. Keeping the bank was not the prime 
consideration since I had a much higher expectation over an opponent 
when he banked me than the expected .0088 edge when I banked him. 
 
:Like any other businessman, he looked at his 
:business, he said "where can I make the most money and if he could 
:make the most money off retaining the bank at Blackjack. 
:
     Where I could make the most money, as banker or player, is not 
the issue. I looked at my business and saw that I could make money 
playing either way and could thus permit a "U-Bank" table which the 
Crown expert admits is unique in casino history. There is a valid 
reason for this unique custom of providing a U-Bank table. 
 
:     And all I can refer you to if you're looking at earlier cases 
:involving Mr. Turmel, there's a Quebec Court decision in Hull which 
:is also in my Book of Authorities at Tab 8.
:     FINLAYSON: I think that "kept for business purposes" solves the 
:problem of how the Poker game or Blackjack game is xxxxx
:
     If the judge is going to rule that playing Poker poker is not the 
crime but playing Poker as a business is a crime, that would be 
changing the law that that's a function of Parliament, not the courts. 
 
:   SHAW: Exactly. I don't think that that sort of situation is going 
:to kept for gain particularly if you're looking at the "business purpose" 
:test that the Supreme Court has applied. 
:
     And again, the test the Supreme Court applied was about the 
business of selling coffee with money , not winning pots with chips. 
 
:And I also make the point 
:earlier that Poker in itself is not profit-generating activity if 
:there is no rake-off and that's why the evidence in this case played 
:itself off on the Blackjack.
:
     Again, he harps on the Blackjack winnings not being as neutral as 
the Poker winnings which is false. The point is that the Two-man U-
Bank Blackjack is just as neutral as the Poker. But in fact, they're 
both winning half-bet per hour winning activity. 
 
:    This was very similar, the Quebec case I'm referring you to, 
:and I accept the Appellant's translation of it without accepting his 
:editorial notes, in which it was virtually the same evidence that 
:was led. In the Hull case, there was evidence of more modest gains 
:in that there were monthly revenues of around a $100,000 that were 
:produced. And there was the same undercover evidence that was led 
:in this case, namely that the bank did not rotate in an equal manner. 
:And in effect, what the judge in this case concluded in convicting 
:Mr. Turmel, it's unclear whether it was under (a) or (b), in convicting 
:him said that this was a mere stratagem to get around the law. 
:
     As he noted, it's unclear whether the conviction was under (a) or 
(b) because we were in one-word country where they used the same word 
under both (a) and (b) and the court refused to order particulars like 
they do in Ontario of which sections the Crown is going under. 
 
     FINLAYSON: Is this a provincial court judge? 
:     SHAW: This is a, yes, the equivalent of a Provincial Court judge. 
:But I think that the provincial court judge pleads into a Supreme 
:Court jurisprudence which is on point. 
:     Also if I could take you to the Ontario Court of Appeal case 
:at Tab 5 which is Irwin, which also in passing deals with whether 
:direct gains are included. Irwin is a case where there was a tavern 
:where they played Blackjack.. 
:     FINLAYSON: In Quebec, he's acquitted by this judge?
:     SHAW: No. He was convicted in Hull. This was after the Ontario 
:acquittals, the one acquittal for Mr. Turmel and the acquittal for 
:Mr. Booth. He opened up a similar venue in Hull in which, it's actually 
:much closer on the facts to this case in that we had undercover evidence 
:about the rotation of the bank and furthermore, we had evidence of 
:the type of gains that were being made in the business- like venture, 
:not the more sort of theoretical to the rules that applied to section 
:(b) or not that is found in the earlier cases. It resulted in conviction 
:though I'm not relying on it for res judicata. 
:
     The Crown can't rely on it for res judicata because not only was 
the Quebec court hampered by only one word to define the two 
activities under discussion here but it was not focused on any 
particular section either. 
 
     FINLAYSON: I understand that xxx
:     SHAW: Yes, I'm sorry. Irwin was at Tab 5. This is an Ontario 
:Court of Appeal case written by Justice Goodman. It was a tavern in 
:which there were Blackjack games arranged and there's no fee charge 
:for entering. However, there were prizes that were to be allocated 
:and in the end, it ends in acquittal, because none of the the prizes 
:were delivered. The owner very prudently said he would not deliver 
:any prizes to the winners of the Blackjack games until he ascertained 
:whether or not it was legally possible for him to do that. 
:     In this case before you, the Appellant's xxx he did advise the 
:Ottawa Police of his activities. The Ottawa police at no point conceded 
:that what he was doing was legal and they said that they would investigate 
:and that if he broke the law, they would charge him. In the Irwin 
:case, there was no money so it resulted in acquittal. But at page 
:217, it will show you that common sense interpretation, direct gain 
:must be included in the provision, it says:
:     "It is common ground between the parties that the tavern business 
:increased during the time in which the Blackjack game operated and 
:that the proprietors of the tavern received at least an indirect gain 
:as a result of the games.."
:     There was evidence of everyone buying drinks.
:     ".. if not a direct gain."
 
     Once again, Irwin was in danger because of his business sales and 
not for his direct gain. I only relied on Irwin as another case of 
indirect sales being judged under (a). 
 
:     I think in a similar vein, if I can take you to Tab 9, a Quebec 
:Court of Appeal case page 4, there again, there was in a drinking 
:establishment there were card games that were set up and you had to 
:pay extra money to get pay your drinks if you were at the card tables. 
:Probably that would be indirect gain in those cases. The Quebec Court 
:of Appeal judgment of Juge Beauregard says:
:     "Il n'est pas necessaire que le gain qu'espere faire l'exploitant 
:provienne du jeu lui-meme." 
:     "It is not necessary that the gain that the merchant wants comes 
:from the game itself." 
:
     Of course not. Section (a) is there to handle just that kind of 
gain that does not come from the game itself. 
 
:But I think that throughout the jurisprudence, 
:you'll find an assumption that while indirect gains are sufficient, 
:direct gains would be even better proof of liability under the section.
:
     No. Direct gains are better proof under the section. They are 
only proof under subsection (b) while indirect gains are sufficient 
only under subsection (a). 
 
:     So I disagree with the Appellant in the way he characterizes 
:jurisprudence that only indirect gains are caught since throughout 
:the cases, there's always a mention that indirect gains will do, and 
:of course, if you don't have direct gains. 
:
     That's not how the jurisprudence works. It's not that indirect 
gains will do if you don't have direct wins. It's that indirect gains 
will do whether you have direct wins or not. Indirect gains are one of 
the five ways to be a gaming house and are not connected in any way to 
whether there are any illegal direct gains or not. 
 
:     And that, to come back to my original submissions on the point, 
:flows from the wording of the section itself and would require, in 
:order to give the Appellant his appeal, would require you to read 
:in "kept for indirect gain" into the provision. 
:
     Actually, that would be exactly what the case law defining "gain" 
has limited it to. Case law limits "gain" to indirect gain and 
doesn't need to mention whether it's indirect or not because direct 
gain out of the game is already handled under the (b) subsections.  
 
:The Supreme Court 
:in MacIntosh has said that courts have to be very wary about reading 
:into provisions words that aren't there. Particularly on a plain reading. 
:Mr. Turmel was gaining and was gaining substantially from a business 
:that he was running. 
:
     It's true that "kept for indirect gain" is what the case law 
amounts to and without reading into the provisions the word that isn't 
there, I'd be happy to go with the limits set on its definition by the 
case law.  
 
:     FINLAYSON: Mr. Turmel, your reply?
 
     So, you've heard how I'd have liked to answer all of his 
incorrect statements one at a time and now you get to see how I 
responded on the spur of the moment in the heat of debate: 
 
:     TURMEL: So does every Poker player in history who sits at home 
:and plays Poker like Judge Austin pointed out. I sit at home, play 
:Poker, I will make substantial gains and if you're going to call "winnings" 
:"gains," then yeah, I'm breaking the law at the private game with 
:Justice Austin there. If he invites me to his game, we're both guilty 
:under this new interpretation.
:     AUSTIN: Is my house kept it for gain.
:     TURMEL: But the point is, it's the game that's kept for gain, 
:for win. All the examples he chose had to do with things that you 
:make out of keeping the business. "The business test," they keep saying. 
:All these things (gaming house chart). Not once could he ever point 
:to one guy who won a dollar out of a pot convicted under section (a), 
:right? Not one case. Not a dollar ever won out of a game except for 
:my case. I'm the first. 
:     Now I don't like bringing up Quebec because Quebec are "one-word" 
:territory. In English, we've got "winnings" to distinguish from "gainings." 
:I can distinguish between the two. The Crown doesn't want to but there 
:are two words in the dictionary. And it just so happens that jurisprudence 
:has treated those two words differently though the Crown thinks they're 
:the same. "Winnings" have always been a (b), gainings have always 
:been an (a). Well, guess what? Right after I win my case in 1989 with 
:Judge Fontana who says: No gain, no win problems, no problem there, 
:I went over to Quebec to try to enforce my right to play. I went over 
:to "one-word" country. It's the same word for "gain" and "win" in 
:French: "gain." They've only got one word. How can you expect a judge 
:with one word to distinguish between two concepts. It's like trying 
:to solve two equations with two unknowns.
:     So I'm saying that he brings up that French Quebec problem and 
:it's just not a fair at me. 
:     FINLAYSON: All right.. xxx
:     TURMEL: That's right. And every case he ever brings up. Now you 
:can call my profession of gambling a business if you wish. And you 
:can say because he's in the business, this code section is against 
:all businesses. Because everyone ever charged under (a) has been 
:a business. Well, he's right. But they were in the business of selling 
:stuff, not the business of winning. Okay? 
:     FINLAYSON: All right, you're repeating your arguments.
:     TURMEL: All right, so I'll go over the notes he made. 
:     First of all, he said there's no problem with the Poker. There's 
:no problem with my winnings at the Poker. Now he said that a moment 
:ago and at the beginning. It's only Blackjack he's worrying about.
:     AUSTIN: He says it's neutral.
:     TURMEL: It's neutral. If the point it's not, I just explained 
:how I made half a unit bet off everybody at the table who plays with 
:me. I make 5 bets an hour. I can make $40 grand a week if I can find 
:a big enough game: $100/$200. $25/$50 like I had going regularly at 
:the casino, that's $10 grand a week I could make playing Poker. Now 
:he's saying I'm making $10 grand a week playing Blackjack too. Tsk. 
:It's the $10 grand a week at Blackjack that's bad. But the $10 grand 
:a week at Poker is neutral. 
:     FINLAYSON: You're really repeating yourself here.
:     TURMEL: Oh. I thought that was kind of new. So I'm just saying 
:that because he only wants to talk about winnings at one game is not... 
:Well, I do win at the other game and he says that's okay. So why would 
:my judge, who didn't distinguish, my judge said "playing cards and 
:making money's the crime." He didn't say playing Blackjack, not Poker. 
:He said playing cards in his decision. It was dominantly Blackjack.    
:     All right. He said "the location and the time were different." 
:And that's the reason they don't have to use res judicata and abide 
:by it. He mentioned the apartment house which was accused of being 
:a rooming house, acquitted and charged again. The Crown said: Hey, 
:it's a different time. And the judge said: I don't care. No change 
:in operations, autrefois acquit applies even if it is different time. 
:     Carrier, this was a poster or a pamphlet which had been charged 
:with being seditious at a time and place, acquitted, charged again 
:at a later time and place of being a seditious poster again. The Crown 
:argued: Hey, different time and place, like they're doing here with 
:me. The judge said: I don't care. It has nothing to do with the fact 
:that it's the same poster. Autrefois acquit. 
:     So in my case, the same thing applies. They're going to scream: 
:Different time and place. Same rules. Same everything. And it's not 
:that the rules of Blackjack are the same, it's the fact that nothing 
:changed. The judge said that: Nothing changed between the two events.
:     FINLAYSON: All right. We've got that. 
:
     Now that he's got that there was no evidence of any change in the 
operations, how can he not be asking for Judge Fontana's transcript 
like Judge Abella did? If they're the same, then his judgment should 
be apposed to Judge Wright's. 
 
:     TURMEL: Okay. Three four times the Crown mentioned they didn't 
:have evidence of the accounting in the Booth case. They didn't have 
:the massive reams of evidence showing John Turmel's winnings. I mean, 
:they counted all the chips at my table. They knew how much I was winning. 
:They traced my bank accounts. They looked at the gains. And do you know
:what the justice says in the James case, my number one case on the 
:(a) section?
:     "The notion of gain should not be embarrassed by the amount."
:     If I'm making an illegal, if I'm selling only ice cream cones, 
:that's guilty whether or not I'm selling a million ice cream cones 
:or not. It's an important point that the Crown says: We have evidence 
:now that Judge Fontana didn't see. 
:     The point is both cases had identical Statements of Agreed Facts 
:with 19 agreed points. Okay? Not only was nothing different pursuant 
:to the judge, the Statements of Facts were identical too. 
:     Now once I admitted that I was winning gambling, Fontana said: 
:Well I don't need his bank records. 
:     And once I had admitted that: Here is how the game works. You 
:play me, nobody else, 50:50. Mutual Exclusivity, a mathematical term 
:very few lawyers understand. It means that as long as you're getting 
:a fair game with me heads-on, it doesn't matter what I'm doing with 
:anybody else. All this rules of Blackjack stuff, how much of an edge 
:the house has, irrelevant because it's like the old days in the old 
:West. The guy who had the bank also had the gun and he won 100% of 
:the time. As long as you get a 50:50 chance to get the gun, it's a 
:fair game. 
:     FINLAYSON: Don't get excited.xxxxxxx
:     TURMEL: I'm  trying to be quick, that's all. 
:     FINLAYSON: Try to keep your voice down. Do you have anything 
:else to say?
:     TURMEL: Well, other than the fact that all of this new evidence 
:the Crown is talking about was admitted and rather, Judge Fontana 
:didn't need to have my admissions proved, he admitted, he accepted 
:them. And Judge Wright chose to let them introduce and be embarrassed 
:by volumes about the amount and let them introduce information on 
:the game, on the bank, all admitted. So yeah, they had new evidence 
:but it was all in the original admissions and it was a waste of time, 
:is my point. 
:     It might look like an impressive case but it's not.
:     FINLAYSON: Where are the 19 points that are mentioned?
:     TURMEL: It's in Book 2 of the Appeal Book Exhibits #3: Agreed 
:Statement of Facts. They didn't include the 1989 version but it happens 
:to be in the motion I made, I did a res judicata plea before this 
:one here, that was last year and it's in there. So they are identical 
:facts, nothing changed. Except evidence of those facts. 
:
     Notice the problem that the Agreed Facts from 1989 were not part 
of the official history of the case and is not under consideration. 
 
:    Now the Crown says: Look it, if we can't use (a) to prosecute 
:his winnings, we'll be left with no remedy. The point is that if I'm 
:not breaking the law, so what? What kind of remedy does he want? He 
:wants to be able to bust legal games? And if I can't get him with 
:the (b) sections, I want a warped interpretation of (a)? So they don't 
:deserve a remedy if I'm not breaking the law. 
:     The Booth case, he says: It was a different party so res judicata 
:doesn't apply. I was the expert witness in the Booth case because 
:I was running the game that got busted. And Judge Fontana said that: 
:You, sir, the victim. He didn't charge a rake, he didn't charge a 
:fee, he didn't do this, he didn't do that, he didn't do that to you, 
:you weren't in a gaming house. No gaming house existed. 
:     So when Judge Lennox gets this ruling and he has to decide whether 
:I was running a gaming house, he said: I can't contradict Judge Fontana 
:who has found no gaming house there. He looked at all the found-ins. 
:Saw none of them were disadvantaged, therefore not guilty. 
:     Now that is an important point. Judge Fontana and Judge Lennox 
:upon whom I am basing my double-jeopardy pleas on, had the benefit 
:of Judge Fontana's decision on the found-ins. Were any of the players 
:victims of a gaming house? No. 
:     Judge Wright didn't have that benefit. They didn't charge any 
:found-ins. They just charged me. So Judge Wright doesn't have anybody 
:telling him: Gee, no one paid a rake, no one paid a fee, no one did 
:this, no one did that, he didn't sell anything, none of the gaming 
:house sections apply. 
:     Judge Wright just has accounting. And he goes: 
:     FINLAYSON: You're reading xxxx
:     TURMEL: All right, well, I'm just trying to make sure everything's 
:covered because he brought them up again. How do I know you're not 
:listening to him? How do I know you're not believing him. That's why 
:I'm trying to shoot down what he repeated. 
:     FINLAYSON: Settle down. Are there any more points you'd like 
:to deal with? 
:     TURMEL: At one point, he said that it's easier to prove section 
:(a) sales than clandestine hidden gambling profits. And later on, 
:he said: section (b) makes it easier to prove the gambling profits. 
:So I want to point out that contradiction. He said: It's easier to 
:prove (a)" and in the same paragraph said "it's easier to prove (b)."
:     He says "the plain words must apply." And again, that's going 
:back with the dictionary versus my 50 years of case law. He says that 
:wins and gains should be synonymous as the dictionary suggests. And 
:as case law doesn't. 
:     He pointed out that the French was even better, they've got the 
:same word for both things. 
:     FINLAYSON: You're going over the same things.
:     TURMEL: I've only got 5 more lines.
:     FINLAYSON: Well, argue them.
:     TURMEL: Okay. Both the cases DiPietro and Rockert were acquittals 
:and Rockert was running a Blackjack game. So now we've got a judge 
:telling us it doesn't matter, it it's winnings, it's illegal. Well, 
:there's proof that Blackjack winnings are not illegal, there are legal 
:ways of doing it. And I've found one. 
:     He kept saying the bank didn't rotate equally. All three judges 
:said it did, between you and me. And the fact that you couldn't bank 
:another guy had no effect on your game with me. 
:     He said there's an advantage in facing several players that I 
:had no one else had. Key point. That is true. I would get to be the 
:bank against five guys but they could only bank me heads on. And it's 
:like I flip coins with five guys. The Crown might want to imply that 
:I gain an advantage by flipping coins with five guys, I say that how 
:many guys I flip coins with has no effect on advantage, it's got to 
:do with the coin. So the fact I was giving you a fair game and I was 
:playing with five guys, they're all getting fair games. 
:     Point by Justice Austin about Poker in the home...
:     FINLAYSON: We heard that. Look, we're running out of time..
:     TURMEL: And finally, the undercover evidence that a rotation 
:of the bank that he didn't think was fair was admitted in the statement 
:of facts. The Irwin case he brought up was about a tavern business 
:which had increased and he wasn't involved in any direct gain at all. 
:So another case of gains from holding the place to which games show 
:up. And if the game's not there, those gains aren't illegal and that's 
:the kind of gains section (a) deals with. Only indirect. So, the grammar 
:would be wrong if it dealt with winnings. That's all I have.
:     FINLAYSON: We'll reserve on that.
:
     So there's lots I didn't tell them that you now know about. And 
this new found-ins case is a wonderful chance to 
focus the light on that whether Turmel-style gaming has any illegal 
losings. 
 
 # ##
--
John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada
111-1505 Baseline Rd. Ottawa K2C 3L4 Canada, Tel/Fax:613-723-2739
All TURMEL topics to newsgroup: can.politics
Abolish Interest Rates