Subject: TURMEL: Unique Legal Case

From: [email-masked] (John Turmel)
Date: Mon, 12 Feb 1996 06:15:32 GMT

Appeal No. C21516
No. 93-18193
                     COURT OF APPEAL FOR ONTARIO
                 Judicial District of Ottawa-Carleton
 
Between:
                        HER MAJESTY THE QUEEN 
                                                       Respondent
                                -and-
 
                            JOHN C. TURMEL
                                                       Appellant
 
                          APPELLANT'S FACTUM
                          ------------------
 
PART I: STATEMENT OF CASE:
 
1.1 The Appellant is a professional gambler who was acquitted of 
keeping a common gaming house in 1989 and, despite no evidence of any 
change in the operations, was then convicted in 1994 without the first 
acquittal having been overturned by a re-interpretation of the word 
"gain" under subsection (a) to include "winnings" which are 
historically dealt with under subsection (b). 
 
1.2 The judge sentenced the Appellant to 3 years probation with the 
condition not to gamble in any unlicensed establishment after ruling: 
@QUOTE = "If you're making a living by playing cards at home, then 
your home becomes a place which is kept" for gain.
 
1.3 The Ontario Court of Appeal, unaware that formerly lawful gambling 
winnings were now to be convicted under a new interpretation of the 
word "gain," varied that condition ruling: 
@QUOTE = "There's no difference gambling in a licensed premises and 
gambling in your own house which he's now prevented from doing."
@QUOTE = "The condition limiting the Appellant to gambling in licensed 
establishments will be deleted and replaced with the condition that he 
not participate in any illegal gambling." 
 
1.4 The grounds of the appeal are that the original judge and the 
Court of Appeal are historically correct and the second court was 
estopped from contradicting the first court on the same set of 
unchanged facts. 
 
PART II: SUMMARY OF THE FACTS: 
 
2.1 I, the Appellant John Turmel, was for four years the Teaching 
Assistant of Canada's only Mathematics of Gambling course given at 
Carleton University after having received a degree in electrical 
engineering. I have been accredited as an expert witness in matters 
related to gambling by both the Ontario and Quebec provincial courts 
on numerous occasions. As a skilled Blackjack card-counter, I was 
barred from two casinos in Las Vegas. As a skilled Poker player, I 
average over 2 big bets per hour at the Hold'em Poker tables with no-
rake-off. The more tables there are, the likelier is a high stakes 
game, often $50/$100, at which my professional winning rate of two 
$100 bets per hour makes picking up the tab for the whole party a 
negligible expense. 
 
2.2 I have earned much of my income in the business of gambling as a 
well-known professional gambler who has kept card games of "No-rake-
off" Poker and "2-man Both-Bank Blackjack in my home for over 21 years 
as well as hosting many legal gaming events including the Canadian 
Open Hold'em Poker Championship for the past 5 years. As long as I 
didn't violate one of the four (b) definitions in the subset 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 and then depart, 
sometimes pronouncing the keeping of my uncommon gaming house 
operations legal with media present. 
 
3.1 In 1988, Crown Attorney Curt Flanagan recommended that Ottawa 
Police charge me with keeping a common gaming house and keeping a 
common betting house under Section 201(1) for having hosted the card 
game of "2-man Both-Bank Blackjack" at the Bayshore Hotel and charge 
my opponents, including David Booth and Gene Lo, with being found-ins. 
 
3.2 In the April 3, 1989 decision styled R. v Dave Booth, Ottawa 
Provincial Court Judge Fontana acquitted found-ins David Booth and 
Gene Lo after listing the evidence and ruling: 
@QUOTE = "- refreshments were available but there was no charge for 
them,
@QUOTE = - there was no fee to enter the game,
@QUOTE = - there was no percentage or rake-off,
@QUOTE = - a player exercised his right to be dealer."  
@QUOTE = "Common gaming house is defined in five ways. On the evidence 
alleged by the Crown and accepting the testimony presented on behalf 
of the Crown by Mr. Turmel, the operation in this occasions clearly 
does not fall into the first four categories: a place kept for gain, 
or for playing games where the bank is held by one or more but not all 
players, there is a rake-off charged, there is a fee charged. Clearly, 
none of these four criteria apply. If the operation is to be caught, 
it must be caught with respect to subsection four."
@QUOTE = "The opportunity to be the banker\dealer was available to all 
players who participated in the game.... "The advantage that is 
derived to an individual by reason of his own skill and in playing the 
game, in no way confers an unfair advantage as contemplated by the 
section."
 
3.3 The bookmaking charge of keeping a common betting house was 
withdrawn after Defence noted noted R. v. Pilon where the J. Hazin 
explained the difference between gaming and booking bets:
@QUOTE = "If these parties are to play an active role in the event, 
there is gaming. On the contrary, if the event be independent of the 
will and actions of the parties, there is a bet." 
 
3.4 Upon the Statement of 19 Agreed Facts drafted by the Crown and 
accepted by the Defendant and the decision of Judge Fontana that none 
of the five possible gaming house losses had been detected among the 
found-ins, Judge Lennox concurred there couldn't be any gaming house 
wins by Turmel if there weren't any gaming house losses by his 
opponents and my keeping of this unique uncommon gaming house was 
acquitted on April 8. Though the Crown did not appeal, I gave written 
consent for any extension of time should they wish to do so.
 
3.5 I continued hosting "No-rake-off Poker" and "2-man Both-Bank 
Blackjack" in my home and in private premises and picking up all the 
tab out of my professional winnings. My games were open to and 
inspected by the police many times over a two year investigation. 
Potential found-ins had been instructed that their defence was: 
@QUOTE = "I won, I lost, I played, I banked, no rake-off and no fee,
@QUOTE = I bet, I called, I tipped with always chips, no GST."  
"I won, I lost" accepted that there was gambling going on.
"I played, I banked" covered (b1) and (b4).
"No rake-off and no fee" covered (b2) and (b3).
"With always chips. No GST" covered indirect sales gain under (a).
 
4.1 In July 1993, without appealing against the Fontana and Lennox 
acquittals, Crown Attorney Curt Flanagan recommended that I again be 
charged by the Ottawa Police in a raid titled "Project Robin Hood" on 
my "no-rake-off Poker" and "2-man Both-Bank Blackjack" card games. 
This time, added to the common gaming house charge was not only the 
spurious common betting house charge under Section 201(1) which had 
been withdrawn in 1989 but two new bookmaking offences: "being in the 
business of betting" under section 202(1)(c) and "controlling monies 
from betting" under Section 202(1)(e). I stood mute at my plea.
 
4.2 Though there was no change in the operations of the games, there 
was a change in the information which the new court was going to hear. 
No found-ins were charged. Whereas in 1989 Judge Lennox had the 
benefit of Judge Fontana's decision reporting "no gaming house victims 
found here," in 1994 the Crown made sure I could not offer the new 
judge any similar ruling on the legality of the found-ins' losses. 
Only evidence of my winnings was to be considered and my judge was to 
have a monocular rather than Judge Lennox's binocular stereoscopic 
view. While the innocence my winnings was easily seen by Judge Fontana 
and Lennox when consideration of the victims' losses was included, 
that innocence was harder to see when only winnings were looked into. 
 
4.3 On Oct. 3, 1993, David Booth was charged with keeping a "2-Man 
Both-Bank Blackjack" game and Gene Lo was once again charged as one of 
the found-ins. Mr. Lo appointed John Turmel as his legal agent to 
represent him on this summary conviction offense. 
 
5.1 On Nov. 15, 1993, the special pleas of Autrefois Acquit, Issue 
Estoppel and Abuse of Process of John Turmel (formerly-acquitted 
keeper and currently-charged keeper), David Booth (formerly-acquitted 
found-in and currently-charged keeper) and Gene Lo (formerly-acquitted 
found-in and currently-charged found-in) were heard by Ottawa 
Provincial Court Judge Peter Wright. As the pleas were all based on 
the Lennox and Fontana decisions, the Crown had argued they should be 
heard together. 
 
5.2 I argued that Judge Fontana's and Lennox's decisions which had 
dismissed all five definitions had to have been overturned before a 
brother judge could be contemplating a different conclusion on a set 
of facts where there was no fresh evidence of any change. I cited: 
R. v. Carriere (1951) 104 C.C.C. p75 Que K.B., 
R. v. Wright (1965) 45 C.R.38
R. v. Jewitt (1985) 2S.C.R. S.C.C.
R. v. Boross (1984) 12 C.C.C. (3d) p480 Alta C.A.
R. v. Grdic, (1985) 19 C.C.C. (3d) S.C.C.
R. v. Keyowski (1988) 40 C.C.C. (3d) p481
R. v. Rourke (1978) 1 S.C.R. p1021
R. v. Young (1984) 40 C.R. (ed) p289
Connelly v Dir. Public Prosecutions, (1964) AC1254(H.L.)
Deserted Wives Maintenance Act (1948) 1W.W.R.680 B.C.PolCt.
Montreal v. Rothman Realty (1965) R.L.214, 441C.R.372
 
5.3 In particular, I noted that in Montreal v. Rothman Realty, an 
apartment building had been acquitted of being an illegal rooming 
house. When that apartment building was charged anew, the judge ruled 
that since there was no evidence of any change in the operations of 
the house, the different date of the second charge was not relevant 
and autrefois acquit applied to an unchanged house. 
 
5.4 I noted that in R. v. Carriere, the distribution of a pamphlet at 
a different time and different place was judged to be protected by 
autrefois acquit though not the same time and place. 
 
5.5 I further urged that the charges of keeping a common betting 
house, being in the business of betting and controlling monies from 
betting should be quashed because one does not book bets with cards. 
With cards, bets are registered with cash or chips.  
 
5.6 Judge Wright permitted a statement: 
@QUOTE = Court: "Mr. Lo, do you have anything you would like to add?" 
@QUOTE = Lo: Yes. I was acquitted of the charge of playing Blackjack, 
or 21, in 1989 by Judge Fontana. I was playing with John Turmel. And 
when I was playing at Dave's place, it was the same set of rules, it 
was the same game that I had before. Being acquitted, I thought that 
what I was doing was right. And I wasn't breaking any law because the 
game house had changed. It was the same set of rules, the same set of 
circumstances. I can be the bank. I had the same advantages that the 
house has and I was charged again for the same offence. And this is 
why I am here today, to plead my case, that I shouldn't be charged 
again for the same thing that I was acquitted on. 
@QUOTE = Court: Mr. Booth? 
@QUOTE = Booth: No, I just feel that we offered the same thing as what 
Mr. Turmel offered before, so, we felt that it was a straight game and 
feel that it was okay. (page 67)
 
5.7 Crown Andre Marin argued my game could be re-examined because:
@QUOTE = Crown: "The Crown is relying on the definition of common 
gaming house as found in section 197(a) of the Criminal Code. It was 
not decided by Judge Fontana and did not form part of his reason for 
decision." (page 75)
@QUOTE = Court: "Could you refer to page 7 of Judge Fontana's 
decision? It would appear to me he makes reference to both (a) and (b) 
in his ruling." 
 
5.8 Judge Wright declined jurisdiction in the cases of David Booth and 
Gene Lo. As I was representing Mr. Lo and still raising the pleas of 
autrefois acquit, issue estoppel and res judicata, the found-in charge 
was eventually withdrawn by the Crown. Mr. Booth, succumbing to his 
lawyer's fees and medical problems, eventually ended his ordeal by 
pleading guilty to playing what he had been previously acquitted of 
playing. 
 
5.9 On Nov. 26, 1993, Judge Wright ruled (page 6): 
@QUOTE = "The Crown argues that for autrefois acquit to apply, the 
circumstances must be identical and that the matters before the Court 
involving Mr. Turmel have different dates, different locations, that 
essentially, these matters are completely different occurrences." 
@QUOTE = "Mr. Turmel cites and relies heavily upon the decision in 
Carriere, a decision of Mr. Justice Drew of the Quebec King's Bench, 
104CCCpage 74, which indicates, in short, the charges brought in the 
first place against the accused and the present charge are 
substantially the same. Fundamentally, what the accused is charged 
with is having distributed a pamphlet. He was found not guilty the 
first time, and although he is prosecuted in different terms, it is 
the same act with which he is charged."
@QUOTE = "The Court, in Carriere, evidently, therefore, had evidence 
to establish that it was the same pamphlet. Here it would appear that 
there are, indeed, different places and times. And although Mr. Turmel 
contends in his arguments that the actions, the process or the 
structure, as he describes it, are the same, there is simply no 
evidence to that effect before the Court other than argument and 
submission. I have concluded, in the absence of any evidence, the 
analogy is simply not applicable."
@QUOTE = "In the case at hand, it would appear that the offences are 
not the same in respect of date, time, location and so forth. And 
there is simply no evidence with respect to the details or 
circumstances in which the offences are alleged, and, therefore, with 
the greatest of respect, the plea of autrefois does not succeed."
@QUOTE = "Issue estoppel may lie in those situations where the defence 
is able to establish that the issue which has previously been decided 
is identical or very similar to the issue before the Court. 
@QUOTE = "It means that when an issue of ultimate fact has once been 
determined by a valid and final judgment, that issue cannot be 
litigated between the same parties in any future law suit. The 
difficulty is that the Court has heard no details as to the nature of 
the allegations and, therefore' the issues in the charges before this 
Court, no evidence has been called with respect of this issue, as to 
the applications that were brought prior to the hearing of evidence." 
@QUOTE = "No affidavit materials were provided and there is no agreed 
statement of facts presented to this Court. I am therefore left in a 
position of having to decide the issues of res judicata and issue 
estoppel in a vacuum. The onus is upon the applicant, in this case, 
Mr. Turmel' to establish, as stipulated in the Wright decision by 
proper evidence that the same point was determined."
@QUOTE = "The Crown contends that the facts are different, that there 
are different issues. Mr. Turmel very emphatically contends that the 
facts are the same, however the Court must decide these issues on the 
basis of evidence which is presented in the absence of evidence, I 
find that the application of Mr. Turmel, although, perhaps, premature, 
must be denied." 
@QUOTE = "It would further appear that the special plea would not be 
applicable in respect to the betting house charges, as these were 
withdrawn, apparently without any plea having been taken."  
 
6.1 Before the Feb. 24, 1994 trial, the Crown withdrew all three of 
the bookmaking charges: keeping a common gaming house, being in the 
business of betting and controlling monies from betting. Judge Wright 
denied Defence Attorney Matt Sagle's request for costs to cover the 
needless preparation of defence to those spurious charges. 
 
6.2 The Crown entered the Statement of Agreed Facts which contained 
almost word-for-word the same 19 admissions as in 1989. During the 
trial, the Crown also admitted that there were no transactions subject 
to the Goods and Services Tax (GST). 
 
6.3 The Crown sought to present evidence of the gambling. Defence 
objected that the game details had been admitted in the Statement of 
Agreed Facts whose main purpose was to dispense with evidence of 
agreed facts and that more evidence on the games would be superfluous. 
Nevertheless, the Crown was permitted to enter the evidence about the 
admitted games. 
 
6.4 The Crown was permitted to enter detailed forensic accounting 
evidence on the amount of the admitted gambling winnings and the 
amount of the tab even though Defence cited the R. v. James case: 
@QUOTE = "The question of what is keeping it for gain ought not be 
embarrassed by the amount." 
 
6.5 The Crown argued that tab expenses house losses like rent and 
refreshments were proof of gain. Defence objected that picking up the 
tab was the ultimate proof of loss. Picking up the room rent was a 
rental loss against gambling winnings. Picking up the tab for food and 
drinks was a catering loss against gambling winnings. There was no 
reason to conclude those house losses were covered by illegal gains 
from keeping the house defined under (a) when they could have been 
covered by legal wins from keeping the game under (b). Defence again 
objected that the case should not be embarrassed by superfluous 
evidence on the amount but the Crown was allowed to present evidence 
on the amount. 
 
6.6 The Crown spent the whole first day presenting evidence of the 
admitted gambling embarrassed by voluminous evidence of the irrelevant 
accounting and rested its case with no fresh evidence of any change in 
the operations. 
 
7.1 With no evidence of vending gains and only evidence of gambling 
winnings and tab losses, the Defence moved for a directed verdict of 
acquittal. There was a history of acquittals under (a) if there were 
no sales and a history of convictions under (a) only if there were 
sales:
R. v. Bampton (1932) 58 C.C.C. p289
R. v. Bertrand (1918) C.C.c. XXXI p2
R. v. Cherry and Long (1924) 42 C.C.C. p137
R. v. DiPietro (1986) 25 C.C.C. (3e) p100 (S.C.C.) 
R. v. Fong (1923) B.C.R. p238 (B.C.)
R. v. Irwin (1982) 1 C.C.C. (3d) p212 (Ont.C.A.)
R. v. James (1903) 7 C.C.C. p196 (Ont.C.A.)
R. v. Karavasilis (1980) 54 C.C.C. (2d) p530
R. v. Kerim (1963) S.C.R. p125 (S.C.C.)
R. v. Lemaire (1929) C.C.C. LI p137
R. v. Ley (1912) 20 C.C.C. p170 (S.C.A.)
R. v. O'Meara (1915) 25 C.C.C. p16 (Ont.C.A.)
R. v. Pare j(1987) 38 C.C.C. (3e) p97 (S.C.C.) 
R. v. Radinsky (1929) C.C.C. LII p131
R. v. Riley (1916) 26 C.C.C. p402 (B.C.C.A.)
R. v. Sala (1907) C.C.C. XIII p198
R. v. Saunders (1900) C.C.C. III p495
R. v. Sullivan (1930) 53 C.C.C. p243 
R. v. Tatti (1965) 4 C.C.C. p268 (Ont.C.A.)
R. v. Wong (1922) 40 C.C.C. p311 (B.C.)
R. v. Lefrancois (1981) 63 C.C.C. (2d) p380 (Que.C.A.) in particular:
@QUOTE = "The notion of gain necessarily implies that the amount paid 
to the vendor must exceed the cost of the items sold." 
 
7.2 The notion of winning necessarily does not imply an amount paid to 
a vendor. There are no vendors at the gaming tables. It necessarily 
implies a pot awarded to the winner. All the cases under (a) dealt 
with amounts paid, never amounts won. 
 
7.3 The Defence pointed out that when subsection (a) states "keep for 
gain to which persons resort for the purpose of playing games," it is 
mentioning both the act of "gaining" and the act of "playing" in the 
very same sentence which suggests the legislators intended the 
distinction between the act of selling for gain and the act of playing 
for win. Defence pointed out the many clear historical distinctions 
between gaining under (a) and winning under (b): 
(a)                     versus  (b) 
Word "gain" is used             Word "play" is used
Gain from the house             Gain from the game
Indirect from game              Direct from game
>From commerce                   From gambling
By sales                        By skill 
At the stock room               At the card table 
In currency                     In chips
Registered at cash register     Registered at chip tray
With GST                        Without GST
Due to presence of game         Due to play in game 
Independent of game             Dependent of game 
 
7.4 The last two distinctions have to do with the words in section 
(a): "to which persons resort for the purpose of playing games." This 
indicates that keeping a place for gain to which persons do not resort 
for gambling is lawful. Such gain is legal before and after people 
resort thereto for the purpose of playing games and only becomes 
illegal when persons arrive to gamble. Subsection (a) gain has to be 
coming out of the house so that the presence of the gamblers increases 
that gain. 
 
7.5 There is no case law to show that a professional card-player's 
lawful winnings from the game has ever been prosecuted as unlawful 
gain under subsection (a) as OPP constable Young admitted on page 107 
of the Mar 20, 1995 transcript:
@QUOTE = "The argument that was going to be made was gain from the 
game rather than from gain from the extras that were surrounding the 
game."
@QUOTE = "As Turmel pointed out during the trial, there is no case law 
on that."   
 
7.6 Instead, the Crown cited Black's Law Dictionary to show that gain 
should include winnings. Defence argued that the doctrine of strict 
construction of criminal statutes required the court to adopt the 
interpretation most favourable to the accused. Ignoring the historical 
limits set by case law to use the maximal number of definitions in a 
dictionary is the anti-thesis of strict construction of statutes. 
 
7.7 Defence raised the Defence of Res Judicata arguing that the issue 
of whether gains include wins had been settled before between the two 
parties. I submitted that Judge Fontana's double ruling left no doubt 
that: 
1) free refreshments meant "not kept for gain" and 
2) skill in play was not contemplated by the section.
 
8.1 On March 18, 1994, having never pleaded, I again invoked the 
special plea of issue estoppel hoping Judge Wright had seen that there 
was no evidence of any change in the operations given the 1994 
Statement of Agreed Facts he was reading was almost word for word 
identical to the 1989 Statement of Agreed Facts given to Judge Lennox. 
 
8.2 I submitted R. v. Wilkes (1948) 77CLR page 341:
@QUOTE = "Apart from the plea of "autrefois acquit," the principle of 
"res judicata" and the doctrine of "issue estoppel" apply in a 
criminal case where there are inconsistent verdicts or where it 
appears that the same point was determined in favour of a prisoner in 
a previous criminal trial which is brought in issue on a second trial 
of the same prisoner." 
 
8.3 I submitted Connelly v Dir. Public Prosecutions, 
[1964]AC1254(H.L.) on page 1259: 
@QUOTE = "The authorities show that the courts have applied the 
doctrine to cases where a conviction on a second indictment would be 
inconsistent with acquittal on the first." 
@QUOTE = "As a general rule a judge should stay an indictment when he 
is satisfied that the charges therein are founded on the same facts as 
the charges in a previous indictment or are part of a series of 
offences of the same or a similar character as the offences charged in 
the previous indictment." 
 
8.4 I submitted R. v Grdic, 19CCC3d(SCC) on page 289: 
@QUOTE = "The Crown was not allowed to re-try except if there was 
fresh evidence."
@QUOTE = "If to prove the allegation the Crown is merely tendering the 
same evidence as that tendered previously, then issue estoppel will 
survive the attack because the Crown's allegation, is in disguise, but 
a re-litigation of the issue as litigated previously, or, to use the 
words of De Grey C.J.,  an attempt "to impeach from within." Indeed, 
another judge is invited to reconsider the same evidence and conclude 
differently. This can only be done through the appeal process finding 
reversible error resulting in the ordering of a new trial before a 
different judge." 
 
8.5 During the trial, Judge Wright had stated:
@QUOTE = "I've read Judge Fontana's decision and what I'm concerned 
about is whether the conclusion by my brother judge is something which 
is based upon his findings with respect to the gambling which are 
findings with respect to a lack of evidence. And there was no evidence 
on that point. Then, with respect, it would be my understanding that 
my brother judge who had not turned his mind to address the specific 
issue that we're hearing here today."(page 23) 
@QUOTE = "Was there evidence before the court, this sort of evidence 
that was before the court today?(page 23) 
 
8.6 I submitted that Judges Fontana and Lennox had not turned their 
minds to the sort of evidence that was before Judge Wright because 
they had dispensed with hearing evidence of gambling after it had been 
admitted and evidence of its accounting as irrelevant. Therefore, all 
three judges had turned their minds to the same relevant evidence 
though Judge Wright was encumbered with a lot of superfluous details. 
 
8.7 Judge Wright had also stated:
@QUOTE = "Was the argument raised before Judge Fontana of gain? Or did 
the matter proceed under (b)? I'm aware that in his decision, there 
was no reference to what sections he found applicable but it would be 
significant whether the issue was (a)?"(page 18) 
@QUOTE = "The question I am concerned with is not so much the grammar 
but whether or not the issue of the (a) was raised, was an issue at 
trial."(page 22) 
@QUOTE = "For one of the special pleas to apply, the court has to be 
satisfied on evidence that there is the same issue between what are 
substantially the same parties and what I'm asking is: Is there 
something that you can direct me to to indicate that the court heard 
evidence on the issue of gain and that that issue was faced?" 
@QUOTE = "Mr. Turmel, other than the reference in page 7, is there 
anything else in here which would indicate that he considered the kind 
of gains that we're talking about." (page 28)  
@QUOTE = "Other than the reference in page 7, where His Honour 
basically goes through the section and indicates that these are not 
applicable, but from the judgment, I'm not able to conclude whether 
those sections are not applicable because there was no evidence on 
those issues or because His Honour felt that this particular section 
did not apply to those facts." (page 30) 
 
8.8 I submitted that the court had no jurisdiction to require more 
than that one oral reference to subsection (a). It was the 
jurisdiction of the Court of Appeal to look into what issues Judge 
Fontana's mind had turned to address under subsection (a) when his 
grammar indicated "not kept for gain." That was his ruling on the same 
evidence that is before this court and no re-interpretation of the 
same facts is permitted unless by order of the appellate court. The 
very discussion of the interpretation of Judge Fontana's grammar was 
improper.
 
8.9 On March 23, 1994, Judge Wright ruled on page 2: 
@QUOTE = "I can indicate that on a basic level, I have to agree with 
you that the facts are largely the same in relation to the game: the 
rules are as you described in an earlier date in court, the 
structure."
@QUOTE = "In my view, for issue estoppel to apply, the Court must also 
be satisfied that the issue is the same or that the issue is 
substantially the same. Here, it would appear to me that the issue is 
a fairly narrow one and that issue is the meaning of "gain." It would 
appear that the issue of gain is not one which has been addressed, at 
least directly, in the previous cases to which references have been 
made. And therefore, I find the doctrine is not applicable here." 
 
9.1 Believing that section (a) had been sufficiently addressed by 
Judge Fontana, I filed an application for the prerogative remedy of a 
writ of prohibition in the Ontario Court (General Division.) 
 
9.2 On April 20, 1994, without informing the  Appellant who lives in 
the same city and is equipped with a fax machine, the Crown filed 
short notice ex parte motion based on selected excerpts from the 
transcript. Judge Desmarais dismissed the application. 
 
9.3 On March 13, 1995, the Ontario Court of Appeal dismissed the 
appeal ruling that the special pleas could be judged within this 
appeal.
 
10.1 On May 16, 1994, Judge Wright convicted me and ruled:
@QUOTE = "Reference has been made to the decision of my brother judge, 
Judge Fontana, in R. v. Booth which decision I have read and agreed 
with. 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)."
@QUOTE = "There is no evidence of any indirect gain or income 
whatsoever, only from the business of gambling directly."
@QUOTE = "If the charge against Mr. Turmel turns on the meaning of the 
word "gain", does gain include winnings?"
@QUOTE = "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."
 
11. On Mar 20, 1994 with respect to my playing no-rake-off Poker in my 
home, Judge Wright stated:
@QUOTE = "If you're making a living by playing cards at home, then 
your home becomes a place which is kept" for illegal gain.
 
12.1 In his Mar 31, 1995 sentencing, Judge Wright stated:  
@QUOTE = "I attach a great significance to this as a test case" (p114) 
@QUOTE = "The amount, which I view as an aggravating factor, could 
well have been less if Mr. Turmel had been charged immediately." 
(p112) 
@QUOTE = "Why Mr. Turmel was permitted to carry on so many months with 
the knowledge of the authorities... The casino was "fine tuned" as to 
the legislation. I take this as an indication of police uncertainty as 
to how to proceed." 
@QUOTE = "I ask myself why a conclusion, which was not obvious to the 
police with all their resources, should have been obvious to the 
accused."(p122) 
@QUOTE = "There is no evidence of any change in the operations of Mr. 
Turmel." (p123) 
@QUOTE = "Defence urged that gain has never been interpreted as gain 
from gambling." (p123) 
@QUOTE = "Crown advanced a novel approach to this type of prosecution. 
I agreed with that interpretation and Mr. Turmel was convicted." 
(p124) 
@QUOTE = "Canadian courts have on occasion considered a test case as 
mitigating to sentence. (p124) 
@QUOTE = "In R. v. Stewart (no2) 35o.r. (2d) 185, Justice Krever: 
@QUOTE = "There was no reason for the accused to believe that his 
conduct could be characterized as criminal. The accused cooperated and 
it was possible to get to the heart of the matter and the legal issue 
involved directly because of the agreed statement of facts and as a 
result of that co-operation." Krever granted an absolute discharge." 
(p125) 
@QUOTE = "Because of the aspects of this case as a trial case, the 
steps which Mr. Turmel took clearly to avoid breaking the law, 
including receiving written legal opinions, which have been provided 
to the court, in advising the police in advance, in operating openly 
for so many months with the knowledge of the authorities, by being 
upfront in the way in which he conducted his defence, in particular, 
admitting the essential elements of the Crown's case and arguing the 
issue on a legal basis, in my view, all go to create a unique and 
unusual fact situation, one which I would expect would never arise 
again." (p130) 
@QUOTE = "Again, I am placing particular emphasis on the factors which 
mark this as a test case. I recognize that another court might well 
have come to a different conclusion and may yet come to a different 
conclusion." (p131) 
 
13.1 I was sentenced to:
@QUOTE = a) 3 years probation during which the Appellant was:
@QUOTE = i) not to be found in any place where there is gambling 
unless in an establishment licensed for the purpose;
@QUOTE = ii) not to associate with any person with a Criminal Record;
@QUOTE = b) to perform 200 hours of accordion concerts as community 
service at 10 hours per month starting within 90 days of sentence;
@QUOTE = c) to pay a victim-fine surcharge of $2,500 within 24 months.
 
13.2 Having allowed me access only to licensed casinos to pursue my 
profession, Judge Wright once again reminded me of the consequences of 
his new interpretation with respect to my playing Poker:
@QUOTE = "I have addressed that issue and the application that it 
might have even to a home if kept for the purpose of gain."(page 156)
 
14.1 On Sept. 8, 1995, the Appellant appeared before Ontario Court of 
Appeal Justices Lacourciere, Labrosse and Austin seeking an order 
staying the sentence pending the appeal of this "test case." I 
submitted:
- that the sentence which barred the Appellant, one of Canada's top 
professional gamblers, from playing lawful high-stakes no-rake-off 
Poker in his home and the homes of others and restricting him to low-
stakes high-rake-off Poker in charity casinos was a violation of my 
right to earn a lawful living;
- that the Appellant has been the host of the Canadian Open Hold'em 
Poker Championship for the past 5 years. Given that card-playing is my 
profession, the condition of the sentence which would not permit me to 
participate in my own legal tournament certainly restricts my chance 
to earn a living;
- that having so restricted my ability to earn a living and noting how 
I had contributed much voluntary community service when I was pursuing 
my profession, 200 hours of involuntary service would again be an 
onerous burden;
- that as the leader of the Abolitionist Party of Canada -- dubbed 
Robin Hood by police -- which is a party of paupers, some of whom have 
criminal records, and given that my conviction is for a quite 
victimless crime and a "unique never-again case," the Appellant's 
opportunity to participate in the Canadian political process was being 
severely hampered by the condition not to associate with people with 
criminal records. 
- that the $2,500 victim surcharge fine is an onerous burden given 
Judge Wright had found no evidence to dispute that I was left a 
pauper. (p131) 
- that as I fit Justice Krever's profile for a non-criminal intent 
case with subsequent co-operation, I also deserved an absolute 
discharge for this test case. 
 
14.2 The Court of Appeal varied the condition of probation which had 
prevented me from gambling in my non-licensed home and my non-licensed 
tournaments ruling:
 
PART III: ISSUES AT LAW
 
15. This is an appeal against that conviction and sentence on the 
grounds that:
 
A) with no evidence of any change in the facts pursuant to the special 
pleas of autrefois acquit, issue estoppel and res judicata, Judge 
Wright may not reconsider the facts as this is the jurisdiction of 
only an appellate court:
 
B) Judges Lennox and Fontana did rule on subsection (a) and Judge 
Wright may not contradict that ruling;
 
C) Judge Wright's interpretation expanding of the scope of (a) is a 
misinterpretation unknown at law and treading on Judicial and 
Parliamentary prerogatives. 
 
16.1 A) Between pages 36-45 of his May 16, 1994 reasons for 
conviction, Judge Wright stated: 
@QUOTE = "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. 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. Although from a reading of the transcript which 
was provided to me, Mr. Turmel was called in that case as the main 
Crown witness, he was not a litigant per se in the proceedings.
 
16.2 Though the pre-requisite that the parties be the same for the 
keeper's pleas of autrefois acquit, issue estoppel and res judicata 
may not be met in R . v. Booth, the found-in, they are met in R. v. 
Turmel, the keeper. The issue was confused by Judge Lennox adopting 
the reasons from R. v. Booth. Once Judge Fontana had ruled there had 
been no victims' gaming house losses, Judge Lennox was bound by both 
issue estoppel and arithmetic to rule there were no keeper's gaming 
house gains.
 
16.3 I had pointed out page 2 and 7 of the Lennox decision:
@QUOTE = "I would have difficulty disagreeing with Judge Fontana, 
simply on the basis of comedy." 
@QUOTE = "In his decision, there was no evidence that there was, in 
fact, a gaming house being kept on the premises." 
@QUOTE = "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."
@QUOTE = "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."  
@QUOTE = "I would propose without further specific consideration, in 
view of the necessity of avoiding contradictory decisions on the same 
matter on the same evidence, to follow the ruling of Judge Fontana." 
 
16.4 Judge Wright had originally dismissed the special plea of 
autrefois acquit and issue estoppel on the grounds he had no evidence 
that the facts presented to the other judges were the same. By the end 
of the case, he eventually concluded that:
@QUOTE = "There was no evidence of any change in the operations of Mr. 
Turmel." (Mar 31, 1995 p123)
 
16.5 Even if Judge Fontana and Lennox had not ruled on subsection (a) 
in their acquittals, the same evidence of only income from the 
business of gambling itself should only be re-tendered to the Court of 
Appeal otherwise, as in the words of the Grdic case, "the Crown is 
merely tendering the same evidence as that tendered previously, in 
disguise, but a re-litigation of the issue as litigated previously, 
or, to use the words of De Grey C.J.,  an attempt "to impeach from 
within."
 
16.6 Judge Lennox was not simply bowing to the doctrine of issue 
estoppel without having seen the evidence and heard submissions 
himself. Judge Lennox ruled that the Appellant's business of gambling 
which was gaining out of the games did not violate subsection (a) on 
the basis of no indirect sales gain. Judge Wright says that that's not 
enough and has contradicted Judge Lennox by ruling that an issue other 
than just the traditional sales should have been considered, that 
treating legal winnings from the game should have been considered as 
gain from the house if made by the host, that the Appellant's business 
of gambling does violate the section. 
 
16.7 Because Judge Wright also had the same Statement of Agreed Facts, 
once His Honour had determined that there was no evidence of any 
change, he was bound by issue estoppel and autrefois acquit to not 
reconsider the same Statement of Agreed Facts at all and possibly 
conclude differently which can only be done after having been ordered 
by the Court of Appeal.
 
17.1 B) Judge Wright stated:
@QUOTE = "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. 
@QUOTE = "The Crown proceeds today on a different definition and that 
is the definition found under (a)."
 
17.2 Yet, Judge Wright's original impression upon reading the ruling 
stated on page 95 of Nov. 15, 1993 transcript was :
@QUOTE = "It would appear to me that he makes reference to both (a) 
and (b) in his ruling." 
 
17.3 The Appellant submits that there is good reason for it to appear 
that Judge Fontana makes reference to both (a) and (b) in his ruling 
since it appears he actually ruled out subsection (a) not once but 
four times. Once gambling has been proven, the traditional judicial 
issues are for a judge to find out if:
a) there were any indirect gains out of the house contravening (a),
b) there were any direct wins out of the game contravening (b). 
 
17.4 Parsing the passage on page 7 of Judge Fontana's ruling to 
determine whether he makes reference to both (a) and (b) or not, the 
evidence for definition section 197 was marshalled:
                                             | Definition Sub-sections 
                                             | (a) (b1) (b2) (b3) (b4)
                                             |GAIN BANK RAKE FEE  EDGE
- "refreshments were available but           |------------------------
  there was no charge for them,              | X 
- there was no fee to enter the game,        |                X 
- there was no percentage or rake-off,       |           X
- a player exercised his right to be dealer."|      X
 
17.5 The last three, fee, rake-off, right to deal, are evidence relating 
to the gain from the gambling. Charge for refreshments is evidence 
which does not relate to gain from the game. If charge for refreshments 
is not evidence of game offences under (b), it follows that charge 
for refreshments is evidence of the only other subsection left: (a). 
Assistant Defence Attorney Matt Sagle did point out:
@QUOTE = "There is some indication that he considered what would normally 
be evidence on that charge and he specified that it doesn't apply 
in this case and he applied his mind actually to the correct question, 
and that was whether anything was being sold. He did not apply his 
mind very much to incorrect questions." 
 
17.6 Then applying that evidence to all five definitions:
                                             | (a) (b1) (b2) (b3) (b4)
"Common gaming house is defined in five ways.|GAIN BANK RAKE FEE  EDGE
The operation clearly does                   |------------------------
not fall into the first four categories:     |  X   X    X    X   
a place kept for gain,                       |  X 
or for playing games where the bank is       |
held by one or more but not all the players, |      X 
there is a rake-off charged,                 |           X 
there is a fee charged.                      |                X 
Clearly, none of these four criteria apply.  |  X   X    X    X 
If the operation is to be caught, it must    | 
be caught with respect to subsection four.   |                     ?
The advantage that is derived to an          |
individual by reason of his own skill and in |
playing the game in no way confers an unfair | 
advantage as contemplated by the section.    |  X   X    X    X    X 
                                             |------------------------
                                             |  4    4    4    4    1
 
17.7 After citing only evidence with respect to refreshment sales, 
subsection (a) is conclusively ruled out:
- the first time when he said that clearly, the first four subsections 
do not apply, including subsection (a);
- the second time when he used the actual words of the (a) subsection 
to say it was not "a place kept for gain;"
- the third time when he repeated that clearly, the first four 
subsections, including (a), do not apply;
- the fourth time when he said that skillful winnings are not 
contemplated by the whole section including (a). 
 
17.8 Even the syntax used by Judge Fontana left no room for error. To 
say "Not guilty under the first four nor the fifth" is a quite 
comprehensive and unambiguous way to state that all five possibilities 
had properly been adjudicated. 
 
17.9 Despite plenty of evidence of keeping the place in the Bayshore 
Hotel for the sole purpose of the business of gambling, Judges Lennox 
and Fontana ruled out keeping the place for gain four times on the 
basis of free refreshments because historically, the distinction was 
clear that (a) dealt with cash register gains and (b) dealt with 
gaming table gains. Their consideration of the refreshments issue 
means that the historic evidence of subsection (a) gain was ruled 
upon. 
 
17.10 Once it is accepted that Judge Fontana did rule on subsection 
(a), it follows that new issue or not, as Judge Wright would have 
followed Fontana on (b) in accordance with the Booth decision, he not 
only should have also followed Fontana on (a) but he should not have 
been asking the question of whether to follow Judge Fontana in the 
first place pursuant to autrefois acquit, issue estoppel and res 
judicata. 
 
18.1 C) Judge Wright, having concluded that there was no evidence of 
change in the operations, found: 
@QUOTE = "There is no evidence of any indirect gain or income 
whatsoever, only from the business of gambling directly."
@QUOTE = "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)." 
 
18.2 Therefore, just like Judges Fontana and Lennox in 1989 who found 
it sufficient to acquit the games, I was found to have kept the place 
to which persons resorted for the purpose of playing games where:
     a) I did not gain from indirect commercial sales;
     b1) I did not exclude anyone from being the bank;
     b2) I did not take a rake-off from pots;
     b3) I did not charge a fee to play;
     b4) I did not have any unfair advantage.
 
19.1 Judge Wright noted:
@QUOTE = "The Crown proceeds today on a different definition found 
under (a)."
@QUOTE = "If the charge against Mr. Turmel turns on the meaning of the 
word "gain", does gain include winnings?"
@QUOTE = "The defence argues that there has never been a case where a 
Canadian court has interpreted gain as winnings." 
@QUOTE = "There are no other cases on point." 
@QUOTE = "The Crown argues that the court apply a common sense 
interpretation of the word gain, the plain meaning of the word 
itself." 
@QUOTE = "Black's Law Dictionary defines "gain" as "profits; winnings; 
difference between receipts and expenditures."
@QUOTE = "Why would Parliament make it an offence to keep a place for 
profit derived indirectly from the business of gambling but not attach 
to profits made directly from winnings?"
@QUOTE = "Is there any reason why Parliament intended, as interpreted 
by our courts, to prohibit an indirect gain or profit through sales, 
et cetera, but allow a direct gain from gambling itself?"
 
19.2 The point is that Parliament DID: 
@QUOTE = "make it an offence to keep a place for profit derived 
indirectly from the business of gambling but not attach to profits 
made directly from winnings." 
 
19.3 They probably chose to distinguish between winnings out of the 
game and gainings not out of the game because of the many Canadian 
voters who keep legal private games at home themselves. Prohibiting 
the indirect sales gain under (a) was probably to keep the legal 
gambling in the privacy of our homes. The business of being a 
professional Poker, Bridge, Gin, or Blackjack player has never been 
illegal as a home-based taxable profession. 
 
19.4 The reason the Crown had no cases of winnings being successfully 
prosecuted as illegal gain is because all the previous courts have 
interpreted that that: 
@QUOTE = "Parliament intended, as interpreted by our courts, to 
prohibit an indirect gain or profit through sales, et cetera, but 
allow a direct gain from gambling itself."
 
19.5 Parliament split direct and indirect profits into two subsections 
and the courts have historically used (a) to determine illegal 
indirect gains not out of the games and (b) to determine the four 
illegal direct gains out of the games while the rest of the gains from 
gambling were found innocent as shown by a history of acquittals of 
gambling winnings including mine. So the Defence came armed with a 
history of case law demonstrating that subsection (a) dealt with 
indirect gainings and subsection (b) dealt with direct winnings out of 
the game and the Crown came armed with a dictionary to argue the 
historical distinction should be ignored. 
 
20.1 Judge Wright added:
@QUOTE = "It would appear to me that a common element in all of the 
cases to which the court has been referred in respect of (a), in part 
a requirement of commerciality, that is the phrase "kept for gain" 
being interpreted by the courts in the context of a business." 
@QUOTE = "An issue has been raised as to GST. There is a distinction 
to be made, but for the purpose of (a), in my view, the distinction is 
not with substance."
 
20.2 One common element of all of the cases in respect of profits 
under (a), the requirement of commerciality interpreted in the context 
of a business, is the Goods and Services Tax on sales transactions. 
Even the government makes the distinction between direct taxable 
professional winnings at games under (b) which do not bear GST and 
indirect taxable gainings at commercial sales under (a) which do. 
 
21.1 Judge Wright added: 
@QUOTE = "What Parliament, I believe, was attempting to do by enacting 
(a) was to prohibit a place from being kept for the business of 
gambling, the commercial purpose of the activity."
@QUOTE = "Mr. Turmel is not facing charges as a result of any gain or 
earnings which he may have acquired, but rather as a result of the 
allegation of keeping a place for that purpose." 
 
21.2 Keeping the place for the purpose of winning has been established 
by every person ever charged with keeping a gaming house and later 
acquitted including myself. Judge Lennox ruled that I have the right 
to keep my place for my business of playing games where I win as long 
as none of the (b) or (a) definitions applied. And nowhere in the 
Criminal Code or in the case law is the business of gambling defined 
as one of the illegal purposes. If Parliament had wanted to prohibit a 
place being kept for the business of gambling, it would have 
legislated so. But gaming and bookmaking offences are divided into two 
gaming house and betting house categories. Certainly, when the Crown 
Attorney added the spurious charge of the business of betting, he 
would have also added the business of gaming had it been available. 
But the Criminal Code specifically forbids the business of betting and 
it specifically does not forbid the business of gaming. Many 
professional Bridge and Poker players are engaged in the pursuit of 
the business of gaming in their homes and other private premises and 
have only had to pay the taxes on their lawful winnings to convert 
them into lawful gains. 
 
22.1 Judge Wright concluded: 
@QUOTE = "It would not appear to be a significant distinction whether 
the income is direct or indirect." 
 
22.2 The fact the courts including Judges Fontana and Lennox treated 
whether the income was or indirect as the only significant distinction 
while Judge Wright saw it as not significant can be attributed to the 
fact that historically, the found-ins are charged with the keeper 
giving the court a more in-depth stereoscopic binocular view of the 
evidence. All the accounting evidence which Judge Wright took into his 
deliberations related to gambling activity which, after the winnings 
had been admitted, Judges Fontana and Lennox had dispensed with as 
superfluous pursuant to R. v. James: 
@QUOTE = "The question of what is keeping it for gain ought not be 
embarrassed by the amount." 
 
22.3 Nowhere in the Criminal Code does it say that evidence of winning 
a lot of money is more relevant than evidence of winning a little. 
Nowhere does it say that tracing financial flows is relevant at all. 
"How much the keeper made?" and "Where did the keeper bank it?" has 
absolutely no bearing on whether a found-in was a victim of a gaming 
house. Judge Fontana did not embarrassed his analysis by the question 
of the amount due to his clearer two-angle perspective while Judge 
Wright was encumbered by voluminous accounting evidence due to his 
monocular perspective of only the keeper's point of view. Just like 
two equations are necessary to algebraically solve for two unknowns, 
Judge Fontana, Lennox and most other judges dealing with both keepers 
and found-ins had two angles to help them distinguish between (a) and 
(b). Having only one equation to solve for two unknowns, Judge 
Wright's one angle was not sufficient to see the clear significant 
distinction between the two subsections.
 
23.1 Judge Wright had stated: 
@QUOTE = "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."
 
23.2 Judge Wright repeatedly called this expansion of the definition 
(a) to include winnings a "test case," a "novel interpretation," a 
"trial case" and noted its major consequence:
@QUOTE = "If you're making a living by playing cards at home, then 
your home becomes a place which is kept" for illegal gain.
 
24.1 Even though Judge Wright noted Parliament's intent to have the 
courts make the distinction between indirect gains and direct winnings 
out of the game, he decided to use a less-than-strict construction of 
the statute by relying on the dictionary rather than the case law to 
not make that significant distinction. It is the court's duty to 
assume strictest limits which means stretching the law to acquit but 
not to convict. If giving the benefit of the doubt causes the accused 
to escape punishment, it's up to Parliament to expand the law. Citing 
Black's Law Dictionary as authority to forsake a history of case law 
which distinguishes between direct and indirect gain is the anti-
thesis of the doctrine of strict construction. 
 
24.2 It's understandable that Judge Wright may not empathize with a 
card-player's point of view after he admitted:
@QUOTE = "I've never been in a casino." (Mar. 20, 1995 page 164)
 
24.3 But having heard the second point of view once during the 
autrefois acquit special plea of found-in Gene Lo, how would Judge 
Wright now explain his conviction under the new interpretation? Before 
Judge Wright's novel interpretation, Gene Lo could go to Dave Booth's 
home for a card game and allay any fears about being charged as found-
in a gaming house by answering Judge Fontana's five questions: 
@QUOTE = Does David Booth sell me anything at a gain? 
@QUOTE = Does Dave take a rake-off out of my pots?
@QUOTE = Does Dave charge me a fee to play?
@QUOTE = Does Dave exclude me from being the bank?
@QUOTE = Does Dave have any edge I don't have?
 
24.4 While Judge Fontana had said that the five definitions could be 
checked in five ways, Judge Wright says those five definitions must 
now be checked in six ways. With this expanded interpretation, Gene Lo 
has to answer a sixth question:
@QUOTE = Does Dave win? 
 
24.5 If he's a gainer at the games, it's a gaming house. Once again, 
it should be noted that the following questions are superfluous to 
whether a game is a gaming house:
@QUOTE = "How much did Dave win?" 
@QUOTE = "How much were Dave's expenses?" 
 
25.1 Judge Wright may not realize the ramifications of his expanding 
the law to a sixth definition. Never before has income from successful 
card-playing been reason to raid gamblers in their homes. Not just 
Poker players make income playing cards at home. This ruling affects 
many card-players who win at Bridge, Poker, Gin, Cribbage, Euchre, 
Blackjack and any other formerly legal card-games of skill. Since 
regularity is a great part in keeping a successful Poker game going, 
it stands to reason that games hosted by losers tend to break up 
sooner and are held less often than games hosted by winners. Most of 
the successful Poker and Bridge games today are operated by winning 
players which puts them in my present predicament. 
 
25.2 This expanding the criminal net to encompass a greater number of 
activities is a Parliamentary prerogative. Consider all the people who 
could now be charged with being found-ins at games they've been 
playing at for years when it's determined that the host was keeping 
the game because the host was a gainer at the games. Friends who have 
played poker with me in my home for decades now shun my games having 
been told that they could now be charged as found-ins because I'm a 
winner.
 
25.3 Judge Wright may not think he's depriving us of much by outlawing 
Poker in our own homes since the Ontario government had newly licensed 
Poker games but we will now have  to pay a rake-off of up to $10 per 
pot whereas we used to be able to play for free at home! If the Crown 
wants playing cards at home to now be illegal, they should approach 
politicians and not one judge. It should be up to the politicians to 
enact as crime the new interpretation of "making of a living by 
playing cards at home," not one judge. 
 
25.4 Novel interpretations of such large deviation from the 
traditional interpretation which could affect a large enough segment 
of the citizenry should be up to an elected assembly. 
 
26.1 Even the Court of Appeal ignored Judge Wright's historic new 
interpretation when it varied the condition of my probation so that I 
could make my living by playing cards at home after Justice Labrosse 
had ruled:  
@QUOTE = "There's no difference gambling in a licensed premises and 
gambling in your own house which he's now prevented from doing."
@QUOTE = "The condition limiting the Appellant to gambling in licensed 
establishments will be deleted and replace with the condition that he 
not participate in any illegal gambling." 
 
26.2 The Appellant submits that the Court of Appeal would not have 
deleted the restriction on my making my living playing Poker in my 
home and private tournaments if it known at law to be illegal. The 
Appellant doubts the Court of Appeal would have even considered 
whether I was going to win or not was a relevant to the issue of 
whether there was a gaming house going on. 
 
26.3 The Court will have to reverse that variation of my probation if 
it upholds Judge Wright's new interpretation under which: 
@QUOTE = "If you're making a living by playing cards at home, then 
your home becomes a place which is kept" for illegal gain.
 
27. The Appellant submits that this double prosecution was a violation 
of my rights under Sections 11(h), 2, 6, 7, 8, 9, 11a, 11d, 12, and 15 
of the Charter of Rights and Freedoms and an abuse of the process of 
the court. 
 
PART IV ORDER SOUGHT:
 
28. a) Grant the pleas of autrefois acquit and issue estoppel and res 
judicata and abuse of process, or in the alternative; 
b) Set aside the conviction and register an acquittal, or;
c) Vary the sentence to time served with an absolute discharge.  
 
Dated at Ottawa on Monday Feb. 12, 1996. 

                                   For the Appellant:
 
                                   John C. Turmel, B. Eng.,
 
                                   New Address and Phone: 
                                   111-1505 Baseline Rd.,
                                   Ottawa, ON, K2C 3L4,
                                   Tel/Fax: 613-723-2739
                                   Email: [email-masked]
 
For the Respondent:
 
Mr. J.A. Ramsay, 
Counsel for the Crown,
10th floor - 720 Bay St.,
Toronto, ON, M5G 2K1,
Tel/Fax: 416-326-4600/56.
 
--
John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada,
2918 Baseline Rd., Nepean, ON, K2H 7B7, Canada,Tel/Fax: 613-820-8656
     All TURMEL topics cross-posted to newsgroup: can.politics