Subject: TURMEL: Ontario Court of Appeal Varies Probation

From: [email-masked] (John Turmel)
Date: Sat, 9 Sep 1995 06:09:53 GMT

TURMEL: Ontario Court of Appeal Varies Probation Conditions
 
     On Friday Sep 8 1995 at Osgoode Hall in Toronto, my application 
for an order staying my probation conditions pending my appeal against 
conviction for keeping Canada's largest common gaming house was heard 
before Justices Lacourciere, Labrosse and Austin of the Court of 
Appeal for Ontario. The following are the factums:
 
**********************************************************************
                          APPELLANT'S FACTUM
 
PART I: STATEMENT OF CASE:
 
     1. On April 3, 1989, found-ins from my Blackjack game were 
acquitted by Provincial Court Judge Fontana at Ottawa and on April 8, 
1989, upon an Agreed Statement of 19 Facts with the Crown, I was 
acquitted of keeping a gaming house by Judge Lennox. 
 
     2. Without reversing those decisions upon appeal, on July 20, 
1993, I was once again charged  with keeping a common gaming house 
after Ottawa Police raided my Casino Turmel, the largest Private Poker 
and Blackjack Casino in Ontario history, in "PROJECT ROBIN HOOD" at 
the Topaz Entertainment Plaza in Ottawa. 
 
     3. On May 16, 1994, I was convicted of keeping a common gaming 
house upon the same Statement of 19 Agreed Facts as that of 1989. On 
March 31, 1995, I was sentenced to (page 132): 
     a) 3 years probation; 
     b) 200 hours of community service; 
     c) not gamble in any unlicensed premises; 
     d) not associate with anyone with a Criminal Record; 
     e) pay a $2,500 victim surcharge fine. 
 
PART II: SUMMARY OF FACTS:
 
     4. Judge Wright cited Judge Fontana's decision acquitting my game 
(p117) and then noted: 
 
     5. "The amount, which I view as an aggravating factor, could well 
have been less if Mr. turmel had been charged immediately." (p112) 
 
     6. "I attach a great significance to this as a test case" (p114) 
 
     7. "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." (p122) 
 
     8. "I ask myself why a conclusion, which was not obvious to the 
police with all their resources, should have been obvious to the 
accused.. There is no evidence of any change in the operations... 
"Defence urged that gain has never been interpreted as gain from 
gambling." (p123) 
 
     9. "Crown advanced a novel approach to this type of prosecution. 
I agreed with that interpretation and Mr. Turmel was convicted." 
(p124) 
 
     10. "Canadian courts have on occasion considered a test case as 
mitigating to sentence. (p124) 
 
     11. "In R. v. Stewart (no2) 35o.r. (2d) 185, Justice Krever: 
"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) 
 
     12. "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) 
 
     13. "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) 
 
PART III: ISSUES AT LAW
 
     14. Judge Wright repeatedly mentions that this is a test case 
because of a brand new interpretation of the law. 
 
     15. The test issue is whether winnings through skillful play 
which were formerly acquitted by Judges Fontana and Lennox of any (b) 
subsection offences may now be caught under under subsection (a) gain. 
Section (a) deals with gaining money through sales from the keeping of 
the house whereas section (b) deals with winning chips from the games. 
All evidence produced by the Crown dealt with Section (b) winnings out 
of the games and no evidence was produced of Section (a) gainings out 
of the place. 
 
     16. Judge Wright's new test interpretation does away with the 
need for the four (b) subsections which define the illegal ways of 
winning versus the legal ways. Only with winnings now being defined as 
Section (a) gains could the judge reason that my winnings playing no-
rake-off Poker in my home which never had constituted a gaming house 
offence before would constitute a Section (a) gain now. 
 
     17. On my specific question about my playing no-rake-off Poker in 
my home, Judge Wright re-stated: 
     "I have addressed that issue in responding to submissions and the 
application that it might have even to a home if kept for the purpose 
of gain." (p127) 
 
     18. This appeal contains valid questions of res judicata, 
autrefois acquit, issue estoppel, abuse of process, Charter Rights 
abuses, and no mens rea. 
 
     19. The sentence barring 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 is a violation of my 
right to earn a lawful living. When the charity casinos close and the 
Poker game moves to someone's house, I am the only player who can't 
attend.      
 
     20. The Appellant has been the host of the Canadian Open Holdem 
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. Considering that this is a brand new interpretation 
of Section (a) gain, I submit that it would be unfair to restrict my 
formerly lawful livelihood until Judge Wright's "test case" has been 
adjudicated by a higher court. 
 
     21. 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 on the Appellant. 
 
     22. As the leader of the Abolitionist Party of Canada which is a 
party of paupers -- the police did dub me Robin Hood -- many 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 will be 
severely hampered by the condition not to associate with people with 
criminal records. 
 
     23. In particular, Mr. Denis Mazerolle who was convicted in 
Brampton Provincial Court of the same offence in which I was not only 
Mr. Mazerolle's counsel but also his primary witness. His sentence 
which explicitly prohibits him from communicating with his advisor and 
expert witness on the Mathematics of Gambling, John Turmel, has 
certainly prevented him from filing an appeal I could prepare for him. 
 
     24. Judge Wright added: "Mr. Turmel asserts he is now a pauper 
and there is no evidence to dispute that." (p131) 
 
     25. As the judge accepts that I am now a pauper and that the 
judge has restricted my possibilities to earn my livelihood, the 
$2,500 victim surcharge fine is an onerous burden on a pauper. 
 
     26. As I believe I fit Justice Krever's profile for a non-
criminal intent case with subsequent co-operation, I am also seeking 
an absolute discharge for this test case. 
 
ORDER REQUESTED
 
     27. The Appellant seeks an order that the sentence for keeping a 
common gaming house be stayed pending the adjudication of his appeal. 
 
For the Appellant: 
John C. Turmel, B. Eng.,
Dated at Ottawa on Monday Aug. 7, 1995. 
**********************************************************************
 
                         RESPONDENT'S FACTUM
          on Application for Stay of Sentence Pending Appeal
 
                               PART I:
                  RESPONDENT'S STATEMENT AS TO FACTS
 
1.   On May 16, 1994, the Applicant was convicted by Mr. Justice Peter 
Wright of the Ontario Court (Provincial Division) of keeping a common 
gaming house pursuant to section 201(1) of the Criminal Code. He was 
not sentenced until March 31, 1995 because the Crown was granted an 
adjournment to prepare a forfeiture application which was subsequently 
dismissed. The Applicant appeals from conviction and sentence. 
 
2.   The Applicant received a suspended sentence and a three year term 
of probation. The probation order required, inter alia, that he 
perform 200 hours of community service, that he not communicate with 
any person known to him to have a Criminal Record with exceptions to 
be set out in writing by a probation officer, and that he "not be 
found in any place where there is gambling with cards or dice for 
money" excepting an establishment licensed for that purpose. The 
Applicant also was ordered to pay a victim fine surcharge of $2,500 in 
24 months.
 
3.   An agreed statement of facts was filed at trial. The Applicant 
had been openly running a "casino style" poker and blackjack operation 
from two locations in Ottawa. He had given advance notice to the 
police that he was going to do so and he had obtained legal opinions 
with respect to the legality of running such operations. (jct: And an 
acquittal) He subsequently opened the "Turmel Casino" on Baxter Road 
with seven blackjack tables and one poker table. (3) He also operated 
a much larger casino at another location on St. Laurent Blvd. Both 
casinos were operated for a profit. 
     Reference: 
     Reasons for sentence, page 117, l.30 to page 123, l.10. 
 
                               PART II:
                    RESPONSE TO APPLICANT'S ISSUES
 
A.   JURISDICTION TO ORDER A STAY OF PROBATION ORDER
 
4.   It is respectfully submitted that a probation order made pursuant 
to section 737 of the Criminal Code, and not made in conjunction with 
a sentence of imprisonment, comes into force on the date on which the 
order is made. The power to vary such an order is limited to the trial 
court on an application pursuant to section 738(3); or to a court of 
appeal pursuant to its powers under section 687, where the appellant 
has filed an appeal from sentence. However, Parliament has not 
conferred any express power upon a court of appeal to stay a probation 
order, or to suspend the operation of any conditions in a probation 
order, pending an appeal. 
     Reference:
     Criminal Code R.S.C. 1985, c C-46, ss. 683, 687,737,738 [TAB 1] 
 
5.   It is respectfully submitted that, in the usual case, this 
Honourable Court has no jurisdiction to stay a probation order, or to 
suspend the operation of any of the conditions prescribed in it, 
pending appeal. Such a power is not recognized in the Criminal Code, 
and there is no statute expressly conferring upon this Honourable 
Court the power to stay a probation order or suspend the operation of 
any of its terms. 
     Reference: 
     Criminal Code R.S.C. 1985, c C-46, ss. 261, 679, 683
     R. v Metro News (1985) 21CCC(3d) at 494-496 (Ont C.A.) [TAB 5]
     R. v Christoper Mark B, unreported judgment of Grange J.A. of the 
Court of Appeal for Ontario (in chambers) dated Aug. 14, 1986 [TAB 7].
     R. v Banks (1990) 61CCC(3d) 189 (B.C. C.A.) [TAB 8]
 
6.   It is respectfully submitted that under the Criminal Code, a 
court of appeal does not have jurisdiction to give an appellant relief 
from the effect of certain sentencing orders, pending the appeal. 
Under section 261, the court may stay an order prohibiting the 
appellant from operating a motor vehicle, pending the final 
disposition of the appeal. Under Section 679, an appellant who has 
received a custodial sentence may obtain release pending appeal. A 
court of appeal may, pursuant to section 683(5), suspend the 
obligation to pay a fine, or to make restitution, or to comply with a 
forfeiture order, or to pay a victim fine surcharge. Section 689 
provides additional relief, in the case of orders for the restitution 
or forfeiture of property. As noted above, section 738 permits a trial 
court to modify a probation order. The implication is, it is 
submitted, that by conferring this express jurisdiction, Parliament 
did not intend to confer any jurisdiction on a court of appeal to stay 
a probation order pending appeal. 
     Reference: 
     CCC R.S.C. 1985, c C-46, ss. 261, 679, 683, 689, 738 [TAB 1] 
     Welch v The King (1950) SCR412 at 428-429 [TAB 4]
 
7.   It is respectfully submitted that in the absence of express 
statutory authority, the power to stay a probation order or to suspend 
the operation of any of its conditions pending appeal can only exist 
if it has been conferred by necessary implication. A court of appeal 
does possess the ancillary jurisdiction to make an order necessary to 
prevent the frustration of an appeal. Such ancillary jurisdiction must 
be exercised by the full court. Unless the inability to obtain the 
order sought would result in the frustration of the appeal, however, 
no jurisdiction to make the order should be implied. 
     Reference: 
     CCC R.S.C. 1985, c C-46, s 482, 683 [TAB 1]
     Criminal Appeal Rules, Rule 2, [TAB 2]
     Rules of Civil Procedure, Rule 63.02 [TAB 3]
     R. v Church of Scientology, (1986) 25CCC(3d) 150-151 (Ont. C.A.) 
     [TAB 6]
     R. v Keating (1991) 66CCC(3d) 530 (N.S. C.A.) in chambers [TAB 9]
 
8.   It is respectfully submitted that this is not an appropriate case 
for this Honourable Court to exercise its ancillary jurisdiction. The 
Applicant has not demonstrated that a suspension of any terms of the 
probation order is necessary to prevent the frustration of this 
appeal, which the Appellant submits is a "test case." (jct: Not on 
whether I can do something but on whether the Crown can do it.) It is 
submitted that the terms of the probation order imposed by Mr. Justice 
Wright are reasonable, flexible and certainly not onerous. The order 
permits the Applicant to apply to his probation officer for permission 
in writing to associate with a person or persons known to him to have 
a criminal record. The probation order imposed by the learned trial 
Judge also permits the applicant to enter any establishment licensed 
for the purpose of gambling with cards or dice for money. [It should 
be noted that under s. 201(2)(1) of the Criminal Code, it is an 
offence to be found in a common gaming or betting house without lawful 
excuse.]
     Reference: 
     CCC R.S.C. 1985, c. C-46, s 201(2)(a) [TAB 1]
 
9.   It is respectfully acknowledged that the Appellant will have 
performed part of his community service prior to the hearing of the 
appeal. However, the Appellant received 90 days from the date of the 
order before he was required to commence this work and is required to 
perform only a minimum of ten hours per month. It is submitted that if 
the appeal is brought on expeditiously, the Appellant will not have 
carried out a substantial portion of the community service order. The 
trial proceeded upon an agreed statement of facts. The Reasons for 
Sentence are prepared. In those circumstances, it cannot be said that 
the appeal will be frustrated if the community service term is not 
suspended. 
 
B.   THE ABSENCE OF A NEED TO SUSPEND PAYMENT OF THE VICTIM FINE 
SURCHARGE
 
10.  It is respectfully acknowledged that this Honourable Court has 
jurisdiction to stay the victim fine surcharge pending appeal, 
pursuant to section 683(6)(d) of the Criminal Code, where the Court is 
satisfied that it would be in the interests of justice to do so. 
However, it is submitted that an order suspending the payment of the 
victim fine surcharge is unnecessary in the circumstances of this 
case. The learned Trial Judge in imposing the surcharge gave the 
Applicant 24 months in which to pay. 
     Reference:
     CCC R.S.C. 1985, c. C-46, s. 683(5)(d) [TAB 1]
     Reasons for Sentence, p. 133, l. 23 to l. 26
     R. v. Metro News, supra [TAB 5]
 
                     PART III: ADDITIONAL ISSUES
 
11.  The Respondent advances no additional issues.
 
                       PART IV: ORDER REQUESTED
 
12.  It is respectfully requested that the application be dismissed.
 
13.  In the alternative, if this Honourable Court determines that, in 
the circumstances of this case, it is appropriate pending appeal to 
grant a stay of the probation order or to suspend the operation of any 
of its conditions, and/or to suspend the payment of the victim fine 
surcharge, it is respectfully requested that concomitant relief should 
be granted to the Respondent in the form of an order expediting the 
appeal. The appeal should be heard by a certain date, failing which, 
the Applicant should be bound once again to comply with the terms of 
his sentence, unless he applies successfully for an extension of the 
stay. 
 
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Alexander Alvaro
Counsel for the Respondent
Dated at Toronto this 24th day of Aug. 1995. 
**********************************************************************
 
                            WHAT HAPPENED: 
 
     The Court did not respond to the Crown's argument that though the 
Court of Appeal had jurisdiction to release from physical custody 
pending appeal, it did not have jurisdiction to release from 
probationary custody because it wasn't specifically stated in the 
Criminal Code. It seems that the Court of Appeal has the power to do 
anything it feels will further justice. 
 
     I complained that restricting me to only one form of legal 
gambling activity, low stakes Poker with a rake-off in licensed casinos 
versus high stakes Poker with no rake-off in my home was an impediment 
to my right to earn a living. So, it all boils down to my specific 
question about my playing no-rake-off Poker in my home where Judge 
Wright re-stated: 
     "I have addressed that issue in responding to submissions and the 
application that it might have even to a home if kept for the purpose 
of gain." (p127) 
     "Defence urged that gain has never been interpreted as gain from 
gambling." (p123) 
     "Crown advanced a novel approach to this type of prosecution. I 
agreed with that interpretation and Mr. Turmel was convicted." (p124) 
     "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) 
 
     I was restricted to only gambling in licensed premises because 
Judge Judge Wright's new interpretation warns that my private 
formerly-legal poker chip winnings in my home under section (b) have 
now become illegal monetary gainings under section (a), something so 
novel there's a good chance another court may come to a different 
conclusion. I think the first court has just taken that first step. 
 
     Justice Labrosse pointed out:
      "There's no difference between gambling in a licenced premise 
and gambling in your own house which he's now prevented from doing." 
 
     The three learned justices of the Court of Appeal ruled that 
restricting me only to the legal games offered in licensed casinos 
outlawed "too broad" a range of other legal avenues of gaming and 
varied the condition so that I not be prevented from playing in my 
home like I've legally have for the last 21 years but that the 
condition simply prevent me from playing in any "illegal" gambling 
establishment. This will also permit me to participate in my Fifth 
Annual 1995 Canadian Open Holdem Poker Championship, another legal no-
rake-off event which I had mentioned. 
 
     As I am the leader of the federally-registered Abolitionist Party 
of Canada and need unhindered democratic access to the electorate, the 
Court also varied the condition "not to knowingly associate with 
anyone with a criminal record" to a condition "not to knowingly 
associate with anyone with a criminal record for gambling." 
 
     Now we're just waiting for the transcripts to be finished. I'll 
then have two months to prepare my appeal book, the Crown will then 
have two months to prepare theirs and I'd hope this unusual test case 
might be settled before the end of the year. 
 
John "Robin Hood" Turmel
P.S. 
Why the Ottawa Police called me Robin Hood is a whole other story.