Subject: TURMEL: Casino Turmel: Supreme Court of Canada Appeal

From: [email-masked] (John Turmel)
Date: 1 Nov 1996 08:10:25 GMT

TURMEL: Casino Turmel: Supreme Court of Canada Appeal
     Take note that this is not the appeal of the case with all 
possible arguments made. This is an application for leave to 
appeal and make those arguments. 
     For that reason, I've concentrated on all the smelly things 
about the case hoping to show that this is something that should
be further looked into. 
     This is not as carefully edited as most of the other 
documents. There were so many different objectionable points 
made by so many judges and Crown's that getting it organized
into a presentable form was a major project. 
     Here's how I organized it.
     For several days, I tagged every argument and important 
statement from my  Appeal Factum, the Crown's Appeal Factum, 
the Appeal hearing  whose transcript I only can refer to 
because I taped it while no one else did, and the Appeal Court's 
decision. 
     Then I culled out all the tags into a Table of Contents 
and started moving the arguments around for several days. When
it seemed that a structure had been laid out, at midnight on 
the morning of Oct 31, I started calling in the blocks of text
and by the morning, everything had fallen into place.
     I did a spell check but didn't have the time to proof it
in any other way so please expect more than the usual number 
of errors. I put together a case book with all the judgments 
and information necessary which was bound into a 235 page 
Application. 
    I served the Ottawa Crown and got it filed in the Supreme
Court of Canada 2 hours before closing.
    It's funny but it's amazing how many of my legal cases
get filed within the last two or three hours before any 
deadlines. It's almost as if the preparation expands to take
all the time available. I mull and mull and then on the last
day with no more mulling allowed, I organize the cards in my 
hand and cast the die. 
     I know this technique leaves one open to catastrophic or
inconvenient consequences if an error should be present which
debars the case from being filed but I haven't had this happen
more than once or twice in 16 years and even when one screws 
up, one can always apply for an extension of time and having 
the prepared case in hand ready to be filed is always most 
persuasive to courts.
     So, here it is. My final appeal to the highest authority
in our land. If this crew finds that nothing needs correcting,
at least I'll have the satisfaction of knowing that I fought 
back to the best of my ability and the highest court in the 
land had to okay a real abuse of process. 
 
                          **********
 
                 IN THE SUPREME COURT OF CANADA
  (Appeal from the Court of Appeal for the Province of Ontario)
 
Between 
 
                         JOHN C. TURMEL
 
                                                        Appellant
                                                      (Defendant)
                             - and - 
 
                      HER MAJESTY THE QUEEN
 
                                                     (Respondent)

            NOTICE OF APPLICATION FOR LEAVE TO APPEAL
 
     TAKE NOTICE that the applicant will apply for leave to this 
Court pursuant to Section 40 of the Supreme Court of Canada Act 
to appeal in forma pauperis conviction of the Appellant for 
keeping a common gaming house upon the questions of law and 
jurisdiction or such order as this Court may deem appropriate. 
 
     AND FURTHER TAKE NOTICE that the following documents will be 
referred to in support of such application for leave:
1988 Feb 23, Bayshore Hotel Raid Information         
1989 Apr 03, Bayshore Found-ins acquittal judgment
1989 Apr 07, Bayshore Statement of Agreed Facts
1989 Apr 07, Bayshore Keeper acquittal judgment
1993 Jul 13, Topaz Plaza Raid Information 
1993 Nov 26, First Double Jeopardy Judgment 
1994 Feb 23, Topaz Statement of Agreed Facts
1994 Feb 25, Second Double Jeopardy Judgment 
1994 Mar 23, Third Double Jeopardy Judgment 
1994 May 16, Topaz Keeper Conviction 
1995 Mar 31, Topaz Keeper Sentencing 
1995 Apr 18, Topaz Notice of Appeal
1995 Sep 08, Appeal Keeper Sentence variation
1996 Aug 13, Appeal Keeper Dismissal 
     and such further or other material as counsel may advise and 
may be permitted. 
 
     AND FURTHER TAKE NOTICE that the said application for leave 
shall be made on the following grounds: 
 
     1) Conviction is inconsistent with a previous acquittal on 
the same facts for the same activity. 
 
     2) Conviction is contrary to the doctrine of strict 
interpretation of criminal statutes. 
 
     3) Punishment for a novel expanded interpretation of 
criminal statutes is unjust. 
 
Dated at Ottawa on Oct. 31, 1996. 
 
For the Appellant:
 
John C. Turmel, B. Eng.,
111-1505 Baseline Rd.,
Ottawa, ON, K2C 3L4,
Tel/Fax: 613-723-2739,
Email [email-masked]
 
TO: 
THE REGISTRAR OF THIS COURT:
AND TO: 
 
Ontario Attorney-General Office:
Ottawa Courthouse,
161 Elgin St. Ottawa, ON, 
Tel: 613-239-1200
 
     NOTICE TO THE RESPONDENT: A respondent may serve and file a 
memorandum in reply to this application for leave within 30 clear 
days after service of the application. If no reply is filed in 
that time, the Registrar will submit this application for leave 
to the Court for consideration pursuant to section 43 of the 
Supreme Court Act. SOR/94-748, s.3. 
 
                          **********

                 IN THE SUPREME COURT OF CANADA
  (Appeal from the Court of Appeal for the Province of Ontario)
 
Between 
 
                         JOHN C. TURMEL
 
                                                        Appellant
                                                      (Defendant)
                             - and - 
 
                      HER MAJESTY THE QUEEN
 
                                                     (Respondent)

                              MEMORANDUM

PART I: FACTS 
 
     1. On Feb 23 1988, the Ottawa Police raided a game of U-bank 
Blackjack at the Bayshore Hotel in Ottawa and charged John and 
Ray Turmel with keeping a common gaming house and keeping a 
common bookmaking house. Also charged were Tasso Paliovarkas, 
Gene Lo, and David Booth with being found-ins in the gaming and 
bookmaking houses.
 
     2. Unlike all other Criminal Code sections where the accused 
is presumed "Innocent until proven guilty," in the case of 
Disorderly Houses, - gaming, betting and bawdy houses - there is 
a reverse onus where the accused is presumed "guilty until proven 
innocent." If a police officer walks in and finds betting slips, 
you're guilty until you prove that you weren't a bookmaking 
house. Reverse onus. If a police officer finds you gambling with 
a deck of cards, you're guilty until you prove that you were not 
a gaming house. Reverse onus. 
 
      3. On Mar 29 1994 at the trial of found-ins Dave Booth, 
Gene Lo and Tasso Paliovarkas, John Turmel was the Crown's expert 
witness in the Mathematics of Gambling and explained how Mutual 
Exclusivity applied. Players were instructed to admit:
 
"I bet, I called, I played, I banked, no rake-off and no fee,
I won, I lost, I tipped with always chips, no GST. 
 
     4. Judge Fontana first ascertained under section (a) if 
Tasso, Gene or David had bought anything?
     "No GST." Only gambling money came out of our wallets.
      Then Judge Fontana checked into the gambling under section 
(b) of gaming house definition and asked: 
     - if they'd been "excluded from being the bank?"
     No. "We played, we banked" against John or Ray up to half 
the time.
     - if they lost any chips to a rake-off?"
     "No rake-off."
     - if they lost any chips "to a fee?" 
     "No fee."
     - if they were at any kind of disadvantage at all?
     No. "We played, we banked," up to half the time and by the 
statistical law of "mutual exclusivity," as long as all could 
bank half the time, it didn't matter whose chips anyone tried to 
win to guarantee a fair 50:50 game. 
 
     4. After the Crown had rested its case, the Defence moved 
for a directed verdict of acquittal on the grounds that there was 
no evidence of the presumption that any of the five gaming house 
definitions had been violated. Judge Fontana reserved his 
decision to April 3. 
 
     5. On Mar 31 1989 at the trial before Judge Lennox of the 
keepers, John and Ray Turmel, the Crown drafted a Statement of 19 
Agreed Facts signed by both parties. After the Crown had rested 
its case, the Defence moved for a directed verdict of acquittal 
on the grounds that there was no evidence of the presumption that 
any of the five gaming house definitions had been violated. Judge 
Lennox reserved his decision to Apr 8 after the Apr 3 decision of 
Judge Fontana. 
 
     6. On Apr 3 1989, Ontario Provincial Court Judge Fontana 
granted the motion for a directed verdict of acquittal of Tasso 
Paliovarkas, Gene Lo and David Booth after listing the evidence 
and ruling (p9-
 
        "- refreshments were available but there was no charge 
   for them,
        - there was no fee to enter the game,
        - there was no percentage or rake-off,
        - a player exercised his right to be dealer.(page9) 
        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 occasion 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.(page 12)
        The opportunity to be the banker\dealer was available to 
   all players who participated in the game.(page 15)
        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."(page 16)
 
     7. There are only 5 illegal ways for money to leave a found-
in's wallet in an illegal common gaming house and Judge Fontana 
had ruled that none of those 5 illegal flows had taken place 
playing Blackjack according to Turmel-style house and game rules. 
The charge of keeping a common bookmaking house was withdrawn 
because illegal card-playing is a gaming offence, not a 
bookmaking offence. 
 
     8. On April 8, 1989, after being presumed guilty of keeping 
a common gaming house by the same reverse onus, Judge Lennox 
found that given Judge Fontana's judgment that there had been no 
illegal flows from the found-ins wallets, there could be no 
illegal flows into Turmel's wallet and adopted the reasons of 
Judge Fontana to direct a verdict of acquittal of this unique 
uncommon gaming house.
 
     9. The Crown did not appeal and has never chosen to try to 
overturn those trial acquittals at the appellate court. 
 
     10. Being found innocent after facing the reverse onus is 
far more powerful than remaining innocent after facing the Crown 
onus. My acquittal brought me back all the way from the black of 
"presumed guilt" whereas the ordinary acquittal leaves the 
accused at the white of presumed innocence. I had to use an 
offensive defence while the usual accused uses a purely defensive 
defence. 
 
     11. On Feb 28 1992 I alerted the police I was moving my 
Turmel's Games Room to the Baxter Rd. Plaza and expanded to 5 U-
bank Blackjack tables and 2 Poker tables with 14 employees. After 
8 months, on Nov 14 1992, I alerted the police I was moving to 
the Topaz Entertainment Plaza on St. Laurent Blvd. in Ottawa with 
20 U-Bank Blackjack tables and 7 no-rake-off Poker tables served 
by 122 staff. As news of such a large uncommon gaming house in a 
city being being denied its own casino by the Province of 
Ontario, political pressure mounted to close me down. 
 
     12. On Mar 23 1993, after learning the Crown was simply 
going to re-charge me again rather than file an appeal, I filed 
an application before Justice Finlayson of the Ontario Court of 
Appeal to extend the time for the Crown to appeal as the proper 
route for the Crown to be taking to answer the question with a 
minimum of inconvenience and possibility of violating gamblers' 
rights. Judge Finlayson ruled that I could not initiate an 
application to extend the time for the Crown to appeal as only 
the Crown could initiate such an appeal from an acquittal. And 
the Crown did not want to appeal those acquittals. 
 
     13. On July 13 1993, with the acquittals of Judges Fontana 
and Lennox still not overturned, Ottawa Police launched the 
"Project Robin Hood" raid on Casino Turmel at Topaz Plaza. Added 
to the common gaming house charge was not only the common 
bookmaking house charge under Section 201(1) which had been 
withdrawn in 1989 but also two new bookmaking offences: "being in 
the business of bookmaking" under section 202(1)(c) and 
"controlling monies from bookmaking" under Section 202(1)(e). I 
stood mute at my plea.
 
     14. 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. Since a judicial ruling on the legality of the 
found-ins losses had hindered the past prosecution, they solved 
that problem by not charging any found-ins. While the innocence 
the winnings was easily seen by Judge Lennox after Judge Fontana 
had looked into the losses, that innocence was harder to prove 
when the next judge was only going to looking into the winnings. 
This is the first instance of the Crown stacking the deck. 
 
     15. On Oct. 3, 1993, David Booth was charged with keeping a 
"2-Man U-Bank Blackjack" game and Gene Lo was once again charged 
as one of the found-ins playing with him. 
 
     16. On Oct 22, Mr. Lo and 3 other found-in accused appointed 
me as their legal agent to represent them on this summary 
conviction offense and I was going to get the chance to prove 
once again that from the found-ins simple point of view, none of 
the five illegal flows of money came out of their wallets in 
Turmel-style Blackjack. 
 
     17. On Nov 15, 1993, I raised the Canadian double-jeopardy 
special pleas of Autrefois Acquit, Issue Estoppel and Abuse of 
Process for 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) before Ottawa Provincial Court 
Judge Peter Wright. As the pleas were all based the Lennox and 
Fontana decisions, the Crown had argued they should be heard 
together. Another motion sought to quash the bookmaking charges 
because case law placed playing cards under a gaming, not 
bookmaking, offence. 
 
     18. Judge Wright permitted Gene Lo a statement: 
 
        "Court: "Mr. Lo, do you have anything you would like to 
   add?" 
        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. 
        19. Judge Wright declined jurisdiction in the cases of 
   Gene Lo and David Booth and reserved his decision. 
 
     20. Defence cited in support: 
R. v. Carrier (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
 
     21. The Crown argued double jeopardy did not apply because:
 
     a) it was a new offence at a new time and new place making 
the matters different:
 
     b) Judge Fontana had not dealt with section (a) which was 
therefore open to be litigated now;
 
     c) the evidence was different. 
 
     22. On Nov. 26, 1993, Provincial Court Judge Peter Wright 
ruled:
 
        "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." 
 
     23. The motion to quash the bookmaking charges was also 
denied. 
 
     24. On Feb 7 1994, my motion before Judge Wright to quash 
the bookmaking charges was put off to the trial. 
 
     25. On Feb 24 1994, the Crown withdrew all three bookmaking 
charges but Judge Wright denied Defence Attorney Matt Sagle's 
request for costs to cover the needless preparation of defence to 
those spurious charges. The Crown entered our joint Statement of 
Agreed Facts identically worded to the 19 Agreed Facts in the 
1989 Statement of Agreed Facts. 
 
     26. On Feb. 25, after the Crown had presented no evidence of 
any changes in the operations of the establishment which had not 
been admitted in both the 1989 and 1994 Statement of Agreed 
Facts, Defence again raised the double jeopardy pleas on the 
grounds that the nineteen 1993 Agreed Facts were indeed congruent 
with the nineteen 1989 Agreed Facts which had resulted in 
acquittal and no new interpretation of law was allowed other than 
by the Ontario Court of Appeal. The motion was dismissed by Judge 
Wright who ruled: 
 
        "The plea is not founded upon evidence which the court 
   has before it."(page 73)  
 
     27. Then I filed a notice of motion for relief sought under 
the Charter of Rights to remedy violations of the following 
rights: 
 
Section 2:   to peaceful assembly and association; 
Section 6:   to gain a livelihood; 
Section 7:   to not suffer double jeopardy; 
Section 8:   to not suffer unreasonable search and seizure; 
Section 9:   to not be arbitrarily detained; 
Section 11a: to be informed of the specific offence; 
Section 11d: to be presumed innocent; 
Section 11h: to not be tried again if finally acquitted; 
Section 12:  to not be subjected to cruel and unusual treatment; 
Section 15:  to be equal before and under the law. 
     The motion was denied. 
 
     28. 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. 
 
     29. The Crown was permitted to enter detailed forensic 
accounting evidence on the amount of the admitted gambling 
winnings and amount of the tab even though Defence cited the R. 
v. James case: 
 
        "The question of what is keeping it for gain ought not be 
   embarrassed by the amount."  
 
     30. The Crown was permitted to enter detailed forensic 
accounting of the tab expense house losses like rent and 
refreshments as a proof of gain. Defence argued they were proof 
of loss and their totals were irrelevant. 
 
     31. When the Crown rested its case with no fresh evidence of 
any change in the operations which had been admitted and no 
evidence of any 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:
 
        "The notion of gain necessarily implies that the amount 
   paid to the vendor must exceed the cost of the items sold." 
 
     33. 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. 
 
     34. The Defence pointed out that when subsection (a) states 
"keep for gain to which persons resort for the purpose of playing 
games," it mentions both the act of "gaining" and the act of 
"playing" in 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 
 
     35. 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. 
 
     36. 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:
 
        "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."
        "As Turmel pointed out during the trial, there is no case 
   law on that."   
 
     37. 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. 
 
     38. On Mar 4 1994, the Crown withdrew the charges against 
all my found-ins and no new judgments on found-in losses were 
going to be obtained. 
 
     40. On Mar 18 1994, having never pleaded, I again invoked 
the special plea of issue estoppel which prohibits inconsistent 
verdicts on the same facts 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. 
 
     41. 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. 
 
     42. On Mar 23 1994, Judge Wright ruled on page 2: 
 
        "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."
        "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." 
 
     43. On May 16, 1994, despite no evidence of any change in 
the operations of the establishment,(Mar 31, 1995 p123), Judge 
Wright convicted me of keeping a common gaming house under 
Section (a) ruling: 
 
        "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)."
        "There is no evidence of any indirect gain or income 
   whatsoever, only from the business of gambling directly."
        "If the charge against Mr. Turmel turns on the meaning of 
   the word "gain", does gain include winnings?"
        "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."
 
     44. On Mar 10 1995, Tasso Paliovarkas was charged with being 
found-in a common gaming house being kept by Ray Turmel in Hull 
and has appointed John Turmel as his prosecutor agent. 
 
     45. On Mar 31, 1995, Justice Wright sentence the Appellant 
to 3 years probation with the condition not to gamble in any 
unlicensed establishment after ruling: 
 
        "If you're making a living by playing cards at home, then 
   your home becomes a place which is kept" for illegal gain.
 
     46. On Sep 8 1995, 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: 
 
        "There's no difference gambling in a licensed premises 
   and gambling in your own house which he's now prevented from 
   doing."
        "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." 
 
     47. On Aug 13 1996, the Ontario Court of Appeal sustained 
the Appellant's conviction which is the subject of this appeal. 
 
PART II: POINTS IN ISSUE
 
     48. A) Judges Fontana and Lennox's strict interpretation of 
section (a) is historically correct and Judge Wright's novel 
expanded interpretation of section (a) is a usurpation of 
Parliamentary prerogative by violating the doctrine of strict 
interpretation of criminal statutes.
 
     49. B) Judge Lennox's decision to apply Judge Fontana's 
ruling on found-in losses and follow the judgment was correct and 
Judge Wright's decision to risk a contradictory judgment by 
trying the same set of facts was a violation of the doctrines of 
autrefois acquit, issue estoppel and res judicata. 
 
     50. C) A fine and supervised penal servitude are uncalled 
for where a former acquittal precludes criminal intent and where 
the conviction results from a novel interpretation of a criminal 
statute. 
 
PART III: STATEMENT OF ARGUMENTS:
 
A) GAIN 
 
     51. Where Judge Fontana ruled that the premises were "not 
kept for gain," Judge Wright ruled that the premises were "kept 
for gain." 
 
     52. Where Judge Fontana ruled: 
 
        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."(page 16)
 
     53. Where the Court of Appeal on Sep 8 1995 varied the 
condition of my probation so that I could make my living by 
playing cards at home, Justice Labrosse had stated:  
 
        "There's no difference gambling in a licensed premises 
   and gambling in your own house which he's now prevented from 
   doing."
        "We're all agreed that the two conditions of probation 
   are too broad in the circumstances of this admittedly unique 
   case. 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."(page 141)
 
     54. Yet, on Mar 20, 1994, Judge Wright stated:
 
        "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)
        "If you're making a living by playing cards at home, then 
   your home becomes a place which is kept" for illegal gain.
 
     55. Where Judge Fontana ruled that Turmel's winnings were 
not contemplated by the section, Judge Wright ruled that Turmel's 
winnings were contemplated in the section. 
 
     56. Where Judge Fontana ruled that playing at U-Bank 
Blackjack with the option of banking half the time is 50:50 fair, 
Judge Wright has ruled that playing at U-Bank Blackjack is still 
 
     57. Where Judge Fontana ruled that evidence of a bank edge 
when the bank could rotate is irrelevant, Judge Wright allowed 
such evidence to be entered as relevant. 
 
     58. Where Judge Fontana treated Turmel-style Blackjack is 
neutral like Poker, Judge Wright has treated it as not neutral 
like Poker. Winnings of $150,000 at Blackjack were objected to 
but winnings of $250,000 at Poker were not. 
 
     59. Where Judge Fontana ruled that not being able to play 
with anyone but the host was "of no consequence" due to Mutual 
Exclusivity, Judge Wright ruled that being forced to play only 
with the host at 50:50 fair game was of consequence.
 
     60. Where Judge Fontana treated Indirect gain versus Direct 
gain as the significant distinction between sections (a) and (b), 
Judge Wright ruled that Indirect gain versus Direct gain is not a 
significant distinction."
 
     61. Where Judge Fontana used a strict interpretation of 
section (a) to indirect gains from the house based on a history 
of case law, Judge Wright's expanded the interpretation to direct 
gains from game based on a dictionary. 
 
     62. The syntax of the section also includes an indicator 
that gaining at commerce was to be held as different from winning 
at the game. the section reads:
 
        "a place kept for gain to which persons resort for the 
   purpose of playing games."
 
     63. By mentioning both gain and playing games in the same 
sentence, it is submitted that gain is therefore not a product of 
playing games.
 
     64. The Court of Appeal found that the historical 
interpretation was too narrow and allowed the expansion to the 
plain meaning of gain as winnings from the dictionary. 
 
    65. Where Judge Fontana dispensed evidence of admitted facts 
as superfluous, Judge Wright allowed evidence of admissions to be 
entered. 
 
     66. Where Judge Fontana dispensed with accounting of 
admitted expenses, Judge  Wright allowed evidence of these 
admissions to be entered. 
 
     67. Where Judge Fontana dispensed with "How well found-ins 
played" as irrelevant, Judge Wright allowed evidence of how well 
they played to be entered. 
 
     68. Where Judge Fontana had no interest in "How well Turmel 
played," Judge Wright allowed evidence of how well I played. 
 
     69. Where Judge Fontana had ruled that the accounting of 
found-ins' losses" was irrelevant, Judge Wright ruled that the 
accounting of Turmel's winnings was relevant evidence to be 
entered.
 
     70. Where Judge Fontana had no interest in which banks the 
found-ins' losses were deposited into, Judge Wright found that 
which banks Turmel's winnings were deposited to be relevant 
evidence.
 
     71. The Court of Appeal ruled that the magnitude of my 
winnings constituted keeping it for gain despite R. v. James: 
 
        "The question of what is keeping it for gain ought not be 
   embarrassed by the amount." 
 
     72. The Court of Appeal in citing R. v. Di Pietro said that 
the business purpose test which had been applied to the sales of 
coffee should also be applied to the winning of pots. All the 
cases cited dealt with sales of refreshments. 
 
     73. Repeatedly, the Court stated that the objective of the 
law was is to restrict business of gambling. Repeatedly, the 
Appellant pointed out that the legislators had not outlawed the 
business of gaming like they had outlawed the business of 
betting. 
 
     74. At the appeal, Justice Austin noted:
 
        "What you're saying if I understand it is that the first 
   time around, the Crown objective was not to demonstrate that 
   he was running a business. 
 
     75. Judge Fontana's objective was to find out if I was 
running a common gaming house, not a business. 
 
     76. All of the evidence had been admitted in the Statement 
of Agreed Facts. There were no factual disputes. Once Judge 
Wright had concluded that "there was no evidence of any change in 
the operations," they were the same facts and new evidence of the 
same admitted facts was completely superfluous. The Crown noted 
that the case rested on statutory interpretations and the 
Defendant had admitted all the elements of the offence. What 
possible new evidence of the same facts can be relevant?
 
     77. Where a judgment on the same facts from another angle 
with no confusing and extraneous accounting evidence gave Judge 
Lennox a binocular perspective, without such a judgment, Judge 
Wright was limited to a monocular perspective. 
 
     78. Where Judge Fontana ruled found-ins had to worry about 5 
money flows out of their wallets, Judge Wright has ruled that 
they have to worry about a sixth illegal flow into mine. 
 
     79. With the upcoming Dec 10, 1996 trial of found-in Tasso 
Paliovarkas will be the opportunity to have the question of 
found-in losses determine the question of whether players of 
Turmel-style Blackjack have to worry about a sixth way of 
spending their money.
 
B) ISSUE (2) DOUBLE JEOPARDY
 
     80. Where Judge Lennox accepted Judge Fontana's ruling that 
none of the 5 gaming house definitions applied to the same facts, 
Judge Wright ruled that one of the 5 definitions does apply to 
the same facts. 
 
     81. Where Judge Lennox ruled that he would not hand down an 
inconsistent or contradictory verdict on the same facts and had 
to follow Judge Fontana on all five sections, Judge Wright has 
handed down an inconsistent and contradictory verdict on the same 
relevant 19 facts after ruling that he ruled that Judge Fontana 
had not dealt with the proper interpretation of section (a) and 
he didn't have to follow Fontana on (a). 
 
     82. Clearly, Judge Fontana dealt with all five sections and 
the proper interpretation of gain. 
 
     83. In R. v Wright (1965) (1965)3CCC160 affirmed 
(1963)1CCC254 on page 338 and 339: 
 
        "The doctrine of issue estoppel springs from the 
   reluctance of the courts to permit inconsistency of verdicts." 
        "There is issue estoppel if it appears that the same 
   point was determined in a previous criminal trial which is 
   brought in issue on a second criminal trial of the same 
   prisoner. The allegation of the crown in the subsequent 
   proceeding must itself be inconsistent with the acquittal of 
   the prisoner in the previous proceeding." 
 
     84. In Connelly v Dir. Public Prosecutions, 
[1964]AC1254(H.L.) on page 1259: 
 
        "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." 
        "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." 
 
     85. In R. v Grdic, 19CCC3d(SCC) on page 289: 
 
        "The Crown was not allowed to re-try except if there was 
   fresh evidence... Unless it can be shown the subsequent 
   prosecution is an attempt by Crown to re-try the accused, the 
   preferable policy is to exclude issue estoppel. 
        "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." 
 
     86. From the moment it became obvious that the facts were 
the same as in the other two cases, this court could not have 
jurisdiction as the Crown was therefore "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." 
 
     87. Indeed, His Honour Judge Wright was put in the position 
of being invited to reconsider the same evidence and conclude 
differently which can only be done through the appeal process 
finding reversible error in Judge Fontana's decision and 
resulting in the ordering of a new trial before a different 
judge. 
 
     88. The Court of Appeal accepted that there was no double 
jeopardy because the offences took place at different times and 
locations; 
 
     89. The Court pointed to all the cases which showed that 
autrefois acquit does not apply to a second criminal act at a 
different time and place. The Court cited R. v. Riddle, an 
assault, R. v. Prince, a stabbing, R. v. Kineapple, manslaughter, 
Van Rassel, robbery. 
 
     90. The Court pointed out that the complement of autrefois 
acquit, autrefois convict, did not protect someone formerly 
convicted of a criminal act from prosecution for a new criminal 
act and ruled that autrefois acquit and autrefois convict do not 
apply to future offences. 
 
     91. I had argued that there was a difference between an 
acquittal or conviction for doing a criminal act and an acquittal 
for being a criminal behavior when that acquittal has been 
obtained on the essential basis of the existence or non-existence 
of a right.
 
     92. I had cited R. v. Carrier where a pamphlet was alleged 
to be seditious at two different times and places and was judged 
to be protected by autrefois acquit. 
 
     93. In particular, I CITED Montreal v. Rothman Realty where 
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. 
 
     94. The Court of Appeal concluded that Carrier and Rothman 
were really more cases of stare decisis than autrefois acquit, 
that the previous acquittals were merely persuasive and that 
Judge Wright was not bound to look at section (a) in the same way 
as Judge Fontana and not bound to acquit.  
 
     95. Stare decisis is the doctrine of following precedent 
usually set by higher courts where the two parties are not the 
same and David Booth could have certainly argued that the Turmel 
Keeper acquittal before Judge Lennox was stare decisis for his 
charge of keeping a gaming house. 
 
     96. Yet, autrefois acquit is the plea when the two parties 
are the same so that Gene Lo could have argued that his previous 
acquittal as a found-in offered protected against a subsequent 
conviction for the same activity. 
 
     97. In my case, I was acquitted and though my plea of 
autrefois acquit may sound like a plea of stare decisis, it is 
actually for not the relief of a verdict of acquittal but relief 
of a dismissal or stay of prosecution.  
 
     98. I leave it to Judge Lachappelle in Montreal v. Rothman 
Realty LTD (1965)RL214,41CR372 (QUEMunCt) to make my case:
 
        "The accused was acquitted of operating a rooming(gaming) 
   house without a permit on a certain date. A second prosecution 
   was commenced before another judge covering a different date 
   in a different year and the accused pleaded autrefois acquit. 
   There had been no structural change in the building 
   (rooming/gaming house) but the prosecution contended that 
   since the offence was a continuing offence it was entitled to 
   lay the second charge.
        Charge should be dismissed. The accused had already been 
   acquitted of infringing the by-law and the second prosecution 
   constituted an unlawful attempt to revise the judgment 
   previously rendered without following the prescribed remedy of 
   an appeal.]
        "The city replies that the complaint being for quite a 
   different date and year, the plea autrefois acquit cannot 
   receive any application since, for a continuous infringement, 
   there is a liability to the penalty for each day during which 
   the infringement is continued.
        At first glance, this argument appears correct. When an 
   infraction is committed, each day constitutes a new infraction 
   and no plea of autrefois acquit can be entertained when a 
   different date is alleged but indeed, the ruling must be 
   entirely different when an acquittal has been obtained on the 
   essential basis of the existence or non-existence of a right.
        If it is true that no permit is required (it is legal), 
   the date mentioned in any future complaint is irrelevant and 
   would render a plea of autrefois acquit useless and the 
   Defendant would never know any peace and could be tried every 
   day in the year and placed in jeopardy for the identical 
   offence whose merit has been judicially adjudged.
        It appears from the above-stated considerations that the 
   rules laid down for a plea of autrefois acquit are far from 
   applying entirely in a case of infringement of a by-law.
        Call it autrefois acquit or res judicata and it would be 
   illegal and against public order to attempt to revise the 
   judgment rendered by one judge before another judge thus 
   making an appeal without following the prescribed remedy set 
   by law.
        Notwithstanding the fact that a judgment which has 
   finally decided the issue when the basis of the existence of a 
   right has been pleaded as an exception, the City is still 
   allowed to meet such a plea by proving that subsequent 
   modifications have created a new status preventing the 
   judgment so alleged from receiving application.
        It was admitted that no structural changes had occurred 
   since the last judgment and consequently the court upholds the 
   plea of autrefois acquit and the complaint is dismissed.
        As to the very merit, the building in question is in fact 
   an apartment house, not a rooming house."
 
     99. The ultimate problem with ignoring the Fontana and 
Lennox decisions is demonstrated by cited by the court:
 
        COURT: "Can we get original 1989 charge?"
        CROWN: : No."
 
     100. The court ruled:
 
        "The final obstacle to the appellant's double jeopardy 
   argument is that there is some ambiguity whether Fontana 
   P.C.J. and Lennox P.C.J. turned their minds directly to the 
   issue whether winnings count as gains within the meaning of 
   s.197(1)(a). This ambiguity must be resolved in favour of the 
   respondent Crown because the principles of "res judicata" and 
   "issue estoppel" apply only when an issue was clearly decided 
   in a previous litigation. 
 
     101. The only reason there is ambiguity is that in skipping 
over the Lennox and Fontana decisions, the transcripts of the 
evidence leading to their conclusions were not presented to the 
court of appeal and only the transcript backing up Judge Wright's 
trial had been presented by the Crown. Only the transcript of the 
Fontana trial had expert evidence in the Mathematics of Gambling 
while the transcript of the Wright trial did not. 
 
     102. I think it is impossible for the decisions of Judges 
Lennox and Fontana to have received a hearing equal to that given 
to the decision of Judge Wright. 
 
     103. From the Crown's Factum comes the request that:
 
        "Even if the word "gain" is held not to be plainly 
   applicable to the casino's profits, a purposive interpretation 
   of the legislation would point to the inclusion of such 
   profits. It is therefore submitted that it is in the interests 
   of justice that this Court examine and decide authoritatively 
   upon the Appellant's underlying argument that winnings 
   directly from gambling are not gains under s.197(a).
 
     104. It says that even if the law doesn't prohibit his 
winnings, convict him anyway. And even though the word "gain" is 
not applicable to this unique casino's winnings, the Court of 
Appeal did offer a purposive interpretation of the legislation 
which did include such winnings. 
 
C: ISSUE (3) SENTENCE
 
     105. The Appellant submits that the fine and supervised 
penal servitude imposed are uncalled for where a former acquittal 
has precluded any criminal intent and where the conviction 
results from a novel interpretation of a criminal statute. 
 
D: ORDER REQUESTED:
 
     106. The Appellant seeks an order overturning the conviction 
and staying the prosecution on the grounds of autrefois acquit, 
issue estoppel, res judicata and abuse of process;
 
     107. Or in the alternative, the Appellant seeks an order 
varying the sentence to time served with an absolute discharge. 
 
Dated at Ottawa on Oct. 31, 1996. 
 
For the Appellant:
 
John C. Turmel, B. Eng.,
111-1505 Baseline Rd.,
Ottawa, ON, K2C 3L4,
Tel/Fax: 613-723-2739,
Email [email-masked]
 
TO: 
THE REGISTRAR OF THIS COURT:
AND TO: 
 
Ontario Attorney-General Office:
Ottawa Courthouse,
161 Elgin St. Ottawa, ON, 
Tel: 613-239-1200
--
John C. "The Engineer" Turmel, Leader, Abolitionist Party of Canada
Box 111 Canada K2C 3L4, Tel/Fax:613-723-2739
All TURMEL topics to newsgroup: can.politics
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