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JCT: Since the Project Robin Hood raid on Casino Turmel case was
brought up in the Big Five Marijuana appeals at the Ontario
Court of Appeal recently arguing against judges imposing new
criminal sanctions, rather than Parliament, I've decided to to
publish the transcripts of the trial on the biggest gaming house
raid in Canadian, probably world, history. 28 tables/155 dealers.
See: http://www.cyberclass.net/turmel/gambler.htm
19931111
#93-18193
ONTARIO COURT (PROVINCIAL DIVISION)
HER MAJESTY THE QUEEN
against
JOHN TURMEL
**********
MOTION FOR AUTREFOIS ACQUIT & ISSUE ESTOPPEL
HELD BEFORE THE HONOURABLE JUDGE P. WRIGHT
on November 11, 1993 at Ottawa, Ontario.
**********
CHARGE: S. 201(1) (2 counts), C.C.
S. 202(1)(e), C.C.
S. 202(1)(c), C.C.
**********
APPEARANCES:
A. Marin, Esq. Crown Counsel
J. Turmel Appearing for Self
[continued]
MARIN: And, finally, you have the right to do that if it's an
abuse of process. Here we go, page 329, "Conclusion".
"Conclusion: I am satisfied on the basis of the authorities that
I have set forth above that there is a residual discretion in a
trial court judge to stay proceedings where compelling an accused
to stand trial would violate those fundamental principles of
justice which underlie the community's sense of fair play and
decency and to prevent the abuse of a court's process through
oppressive or vexatious proceedings."
So, this keeps being repeated by everybody. That's the standard
line. And compelling us to stand trial - you know - on the same
issues would, I believe, be that same abuse of process.
And, finally, that has to do with the autrefois acquit, abuse of
process and issue estoppel, is all the case law we could find to
buttress our case for one of these applying, preferably autrefois
acquit.
I would just like to finish at this stage with some betting house
information. Again, it is a question of law because it is arguing
an absolute total absence of evidence and just as in 1989, it was
established that you cannot do book-making with cards. Cards
constitutes evidence of gaming house, not betting house. And just
like in 1991 where the charges of book-making, betting house were
dismissed when I was using cards. Lo and behold, we're faced with
the same red herring again.
And I would like to now get over to the next case, which is Ball.
Okay. These last few will be short and quick because they are
pretty straight-forward. In the Ball case when you go down to the
second - third last paragraph:
"In view of the fact that playing cards were found on the
premises..." - so, this clearly establishes this is a case of
playing cards being the gambling device - it says: "...Barclay,
J. explained that he did not consider that playing cards came
within the terms of s.986(2) be reason of the fact that they were
specifically mentioned in the preceding s.985..." - whereas this
other one... dealt with both a common gaming house and a common
betting house."
Now, this is an old case. If we go down, now, to the fourth-last
paragraph where it starts with, "The old wording is clearer...",
third line, end of it, it says: "...the particular type of
equipment found must be the type of equipment associated with a
common gaming house if the charge relates thereto or in a common
betting house if that is the basis of the charge."
In Lewis v. The King, which we will bring up later, he mentioned:
"that the finding of playing cards does not constitute prima
facie evidence that a place is a common betting house."
And, of course, I would point out that there was nothing going on
anywhere in our games, other than cards. You can't do book-making
with cards and, yet, they threw it in the end.
Here we are, again, Mr. Booth and myself, again, facing book-
making with cards charges. And, of course, we're going to assume
that when we get there, they will be thrown out as quickly and as
arbitrarily as they were in the past, simply because the case law
I'm going to be reading to you makes things very, very clear. I'm
still shocked that they hang on to this charge, but, Lewis v The
King finds: "...that the finding of playing cards does not
constitute prima facie evidence that a place is a common betting
house. It may also be said that this is drawing a very fine
distinction...", but, it's got to be treated with particular
care."
Now, at the next tab, we go into R. v. Jarman and I put this one
in here strictly to give the Crown and the police a good idea of
how a good book-making charge should be laid. I mean, as an
example of how a book-making charge should be laid, they could
learn a lot if they study this one. Jarman. In the indictment in
Jarman, they have, "unlawfully did keep a common betting house,
did record or register bets." Now, that's a key ingredient, the
recording. That will be brought up a little later. Unlawfully did
engage in book-making, did did engage in the business or
occupation of betting. They've hit us with this, of course. And
transmit information.
And the last line: "The Crown also furnished particulars of these
charges in the following terms...". And take a look at the
particulars. You've not constitute prima facie evidence that a
place is a common betting house." And, of course, I would point
out that there was nothing going on anywhere in our games, other
than cards. So, to be facing all these betting house charges,
seems - especially after the Crown had already received - and
it's part of their evidence but, Your Honour, it's not as if I
was hiding - you know - why and how I was doing it - you know -
and the Crown had this hundred key of information to read all
about why book-making - you can't do book-making with cards and,
yet, they threw it in the end.
Here we are, again, Mr. Booth and myself, again, facing book-
making with cards charges. And, of course, we're going to assume
that when we get there, they will be thrown out as quickly and as
arbitrarily as they were in the past, simply because the case law
I'm going to be reading to you makes things very, very clear. I'm
still shocked that they hang on to this charge, but, Lewis v The
King finds:
"...that the finding of playing cards does not constitute prima
facie evidence that a place is a common betting house.
It may also be said that this is drawing a got a page full of
information. Take a look at what I've got. You read it. Book-
making. I mean, does it say I recorded debts? Does it say I had
chips? Does it say I have lines with odds? Does it say I made
telephone id I transmit? Nothing. So, I mean, when you look at
the two, when you look at how this Information was framed and how
the one I'm facing is framed, you see that the one I'm facing is
pretty sub-standard compared to this, and this was an old case, I
believe, back in 1972. So, 21 years later, they still can't even
do as good as these guys here. You know, this is clean,
efficient, you get information out of it. I got nothing. Why?
Because they' have nothing to add.
So, at the next tab, we're moving into the good stuff now, Lewis
v The King. And right in the very first information, the bottom
of page one, page 268:
"In order to prove that a place is a common betting house it must
be established not only that bets are recorded...".
Now, I mean, that's the inherent gist of a betting house, the
recording of the bets.
Now, if you will notice the charges against me, recording a bet,
can be a betting house charge. It's even included in amongst all
the gaming house definitions. I have some definitions for the
different crimes. You will notice now that they have recording
bets, which is one of the (b)'s. Of course, receiving bets,
recording bets, registering them, transmitting, paying, you could
have one house that records, one house that receives the money,
one house that registers it, one house that transmits them, one
house that pays the money, and that point is, either one of them
would all be guilty of book-making, okay? But, none of these
things have been alleged. Absolutely none. They are going in like
1989 and like 1991 with nothing. Zero. You know, because there
was no book-making. I mean, why would I want to endanger my
friends, once we found a legal way of playing cards, by doing
book-making? But, anyway, the Crown threw in the book-making
charges. It makes it look bad from people on the outside who
don't know any better, but, in this case, Lewis is very, very
clear. He says that not only you have to prove that there has
been recordings - so, that's primordial, that's number one.
You've got to prove the recording of bets before you can allege a
betting house. But, then, it's got to be kept or opened for that
purpose.
Now, they're alleging here that I opened my Topaz card house for
the purpose of recording bets, which is the ultimate charge in a
betting house. And, of course, since that is not true, one
wonders who went and swore this Information to a Justice of the
Peace, that there was book-making going on, when there wasn't?
Continuing: "In order to prove that the accused is the keeper of
such premises it must be established that he was involved in the
care, government and management..." thereof.
Now, zoom down to the third-last paragraph where it says: "In
order to prove that a place is a common betting house it must be
established not only are bets recorded, but that the place in
question is opened or kept for that purpose."
So, the recording of bets, which is just one of the (b) sections
in today's Code, was considered a primordial ingredient and you
will see why later in the Pilon case.
Turn to page 270:
"Under that section when any cards, dice, balls, counters or
other instruments of gaming used in playing any games of chance,
et cetera, are found in any place suspected of being used as a
common gaming house, entered under a search warrant, it shall be
prima facie evidence that such premises are used as a common
gaming house."
Now, I grant we had cards and nothing else. And I grant that -
you know - on first view, it does look like a gaming house and
that should be the charges we should be facing. And it does show,
page 271, the next page, one, two, third paragraph, about eight
lines down where it starts with, "The onus...".
"The onus was on the Crown to show that this equipment was kept
for the purpose of betting."
I'd love to see the Crown show up how he is going to use a deck
of cards for the purpose of betting. Okay. So, that's Lewis. I
think that's pretty clear.
But, now, the winner explanation of all is at the next tab, which
is the Pilon case. The Pilon case, the second page, third
paragraph from the bottom, small text, it starts in the middle,
where it says, "If these parties..." - I believe it's page 343,
but, you can't - anyway, it doesn't show, but, anyway, it's the
second page, third paragraph, it says:
"If these parties are to play an active role in the event; that
is to say, if the one of them who shall be the author of the
event is to be the winner, there is gaming; on the contrary, if
the event be independent of the will and actions of the parties,
there is a bet."
So, that means, if I'm betting on a horse race, or I'm betting on
a football game and there is absolutely nothing I can do to
influence it, that's betting. That's bookaking. They record the
bets because it's going to be decided later when the outside
information comes in.
He says if I am wagering on something that I, myself, can affect,
like a card game, a dice game, a backgammon game, a bridge game
or something like that, that is gaming.
Now, of all the case law that I've looked for to find someone who
can best explain the difference between betting and gaming, I
think that this is it. It's very simple. If you're betting on
something you are controlling - you know - like cards, things
like that, that's gaming. If you're betting on something out of
your control, that's betting. Pretty simple analysis, pretty
simple distinction between the two.
Finally, I would point out on page 348, first new paragraph: "So,
the game of poker, whatever may be wagered upon it, is not a
crime...".
I would like to establish that right away because many people
have thought that if a player is a skillful professional and he
runs the game, that that would be illegal. But, if he's a loser
and he runs the game, that would be okay. That seems to be the
Crown's - the general gist of his consensus is, if you're good
and you expect to win, well, that's illegal. But, if you're bad
and you expect to lose, that's illegal. So, it means I wouldn't
be able to run a gaming house, but the Crown would. And I don't
think that's fair. Anyway]s....
That was - I had to lighten up a little bit anyway. We've been in
pain for four months with 150 people, no jobs. You know, it's
anyway, finally, we're going up to the Pouliot, the next tab. The
Pouliot case.
Okay. On the right hand side, the second paragraph from the
bottom, it says that: "Attorneys for Pouliot made a motion to
quash the Information by reason of the total absence of an
essential element...".
And, we are, today, Mr. Booth and I would like to have all
betting charges quashed on that absolute absence of that element.
There was no betting going on, no recording element, no
transmissions, and I think it would only confuse things to go
ahead at this point with betting charges still alive.
And, then, finally, in the last case of Ruskoff, Marbella and
Damore, which was a Supreme Court of Canada case - I would also
point out that it was argued by Mr. Gordon McNab, who was one of
the lawyers I engaged in early March when the police started to
found - like, they were starting to get upset over how things
were going, and I engaged Mr. McNab for an opinion on the
legality of my operation and he gave me a positive response and
he didn't think - he said Fontana was correct, basically.
I also got an opinion from a former Judge, Judge Young, in
Niagara Falls, who also said Judge Fontana was right and should
be followed, and another lawyer. So, I did go out and get several
lawyers opinions before I did continue playing, even though I had
had some rumors that the police were looking for something to
argue about. I would point out now that if we zoom down to page
506, second-last paragraph, three lines from the bottom - very
similar to us. It says:
"He said that, on occasion, card games were played by members for
money, but no one took a rake-off, nor did anyone have a monopoly
on the deal in any game, nor did the house take a percentage."
So, these guys were playing cards. They were gaining, but they
were charged with bookaking. And the Judge ruled on the next
page, second paragraph:
"The learned trial Judge found, on the basis of evidence...that
the bets made by the players were private bets between
individuals not engaged in any way in the business of
betting...".
And, of course, that is the same thing that Judge Fontana found
about our game. He even referred to this case when he ruled that
Mr. Lo and myself and Mr. Booth and myself were simply private
individuals who were betting amongst ourselves in two-man
contests.
The next page, page 508, first large text, is: "It is to be noted
that the words "gaming equipment"...include anything that is or
may be used for betting. It was submitted by counsel for the
respondents that evidence that a place was found to be equipped
with "gaming equipment", but which is not, or may not "be used
for betting" is not proof that the place is a common betting
house. I agree with that submission."
So, the fact that they came in and they found a whole bunch of
decks of cards, does not prove that we managed to do any
bookaking with these cards. "Keeping a common gaming house...",
the Judge continues, "...and keeping a common betting house, are
distinct offences." A distinction which was laid out in my
original newspaper text the Crown had, but, which seems to have
eluded them, unless they have an alternate interpretation they
won't fill us in on.
Again, he quotes Lewis v The King, which we read earlier and if
you look on page 509, that's the right hand side now, second
paragraph - oh, he's still quoting from Lewis where we had
earlier said: "...that the particular type of equipment found
must be the type of equipment associated with a common gaming
house...".
Now, cards, have historically been associated with a common
gaming house. Cards have never been associated with a common
betting house, except in my last two cases. The next paragraph,
it says at the conclusion, the second-last line: "...that the
finding of playing cards does not constitute prima facie evidence
that a place is a common betting house.
It may be said that this is drawing a fine distinction but the
creation of a presumption as serious and difficult to rebut based
on the finding of a simple pack of cards...makes this necessary."
So, that's basically the case law that we've gone through, trying
to establish that, first of all, the betting house and the gaming
house charges should be quashed on the grounds of the special
plea of autrefois acquit. They should - or, they should be
quashed on the grounds of the special plea of issue estoppel, to
prevent contradictory judgments, which, I believe, would be
rendered if a Judge did conclude that either Mr. Booth or myself
were operating gaming houses after Judge Fontana had concluded we
were not, or, I was not. And, finally, that these book-making
charges, all the bookaking charges are absolutely in an absence
of evidence whatsoever for book-making and on the basis that
they've always lost, in 1989, with Fontana and 1989, with
Lennox, they withdrew, and in 1991 with Bonin, they lost, I just
don't think it's fair to muddy up the waters by having us move in
and face these charges. And for that reason, we would like to
have the betting house and betting charges quashed on the grounds
of an absolute zero chance of success and conviction, when you
cannot do book-making with cards.
So, on that note, I would only point out that Mr. Booth ran an
absolute, meticulous, even better Turmel-style casino than I did,
because after I had been raided, we took a look at what the
police had alleged I might have done wrong. They thought I was
selling cigarettes. They found out the day of the raid, it was
another guy who ran the machines. They didn't find out the day
before the raid, they found out the day after the raid. So, half
their reason for raiding was gone because they didn't do their
investigation correctly. They assumed I was making the profits
from cigarettes and being so stupid as to do something that could
get us all busted.
Or, number two, there was an allegation about an unsplit chip at
a poker game, which will have to be rebutted, I assume, at some
point, had they thrown it in the charge. But, again, Mr. Booth,
having been given the benefit of the minor allegations, was
perfectly capable to avoid them a hundred per cent and ran an
absolutely Turmel-style casino. So, we're sitting here with Mr.
Booth and Mr. Lo, who have both been acquitted of these similar
charges before, who now face - you know he onus of government
oppression, or prosecution, for exactly the same offence they
were acquitted of doing before and, as well, I think it's pretty
reasonable to assume that the guys who were formerly acquitted,
were smart enough to understand why Fontana formally acquitted
them and it should be rather easy for us to have stayed within
those strictures and not do more than Fontana had permitted.
So, I would simply say that it's new law we're asking you to do
here. When the Judge in Montreal did say, 'Well, okay, I'm going
to extend issue estoppel to a rooming house at a different date',
he was creating new law. When a Judge said, 'I'm going to
extend...' - not issue estoppel, autrefois acquit, when a Judge
said, 'I'm going to extend autrefois acquit to a pamphlet...,'
independent of where, when and who, well, that's another Judge
making new law. And I'm saying, frankly, I think all the doors
have been opened for us to use this now.
We have the example in Carrier where the Judge ruled time and
place were immaterial. It was a pamphlet. And you have the Judge,
Lachapelle! in City of Montreal v Rothman Realty Limited, who
said that time is irrelevant. Autrefois acquit should apply.
And we're simply saying that in this case, Wayne's weiners - if
Wayne came to you and said, 'Hey, my weiners have been found not
guilty before. The formula is the same formula. You know, time
and place don't matter. What corner I was selling and when I was
selling them, the formula was good', I would say that just as the
pamphlet was acquitted and autrefois acquit applied and the
rooming house was acquitted and autrefois acquit applied, I
should be acquitted. I mean, I was acquitted. And autrefois
acquit should be applied. And Wayne's weiners was acquitted and
he should also have it applied.
We all sit in the same boat saying autrefois acquit is the only
way we can get justice and have these charges thrown out against
us quickly and if you find that is not barred to the prosecution,
I think that issue estoppel would be the very next best block to
such an abuse of process. And, finally, the most damaging of all
rulings, would be a ruling that we have a prosecutorial abuse of
process. And I would think that if you took a look at the public
mischief charges, you would see that when the Crown and the r the
police did go to their expert statistician and gave him a set of
false odds and allege that I was taking - that I was giving
people a two-to-one pay off on a third-to-one shot, a thirty-
three per cent advantage, which was not true, and then try and
base their case on this expert witness coming back and telling
them, 'On the set of odds you've given me, I'd advise you to go
and bust him as a gaming house, I would say that when one
considers the falsehood that went in to getting their expert to
advise busting me, someone ought to be charged with public
mischief at some point.
So, we have here, a lot of people interested to know the truth
about our case. We have done our very best to stay within the
strictures of Judge Fontana and, frankly, given the trivial
nature of those constrictions and given the trivial effort it
took us to abide by them originally, I would see no alternative
but to say that autrefois acquit should be extended to this case
of gaming house, as well as rooming house because time and place
or immaterial to the questions of structures and the Crown has
not alleged any structural change. Thank you, Your Honour.
MARIN: I'm just wondering whether the two other gentleman had
anything to say prior to the answer.
COURT: Mr. Lo, do you have anything you would like to add?
LO: Yes. I was acquitted of the charge of playing black-jack, 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.
COURT: Mr. Booth?
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.
COURT: Mr. Marin?
MARIN: Much has been said by Mr. Turmel as to how proper it was
to prosecute these types of charges and how it was, in fact,
improper. And in reviewing his case law, in the case of Lewis, I
note that the lawyer acting for the Crown in that case has the
name of Antonio Lamer, so, I'm in good company I would think.
Your Honour, the first thing that has to be decided is even if
you give my friend's submissions, if you put them in - or,
rather, the accused's submissions, in their best light, it comes
down to this:
In 1989, the betting charge that he was facing was withdrawn, the
gaming charge was dismissed. So, his whole argument for autrefois
acquit is that he was in peril, that there was jeopardy, he was
put in jeopardy previously.
The case law is clear in my respectful submission, that once a
charge is withdrawn, that the accused was not dismissed, or the
charge was not dismissed or the accused was not acquitted. There
was no such jeopardy. And that is a pre-requisite to the defence
of autrefois acquit.
MARIN: Your Honour just before I continue on my the submissions
that I started to make, Your Honour will note that some of my
case-book, actually, the total of five cases, deal with the
sufficiency of the Information. The accused has alluded to that
in his submissions today as part of the materials he has filed
before the Court, but, Judge Nadelle has previously entertained a
motion on the sufficiency of the Information, has ruled that the
Information should not be quashed, that, in fact, it is
sufficient. I had expected the accused to present that ruling
today, but he hasn't.
It's my submission on that particular point that the matter has
already been decided by this Court and that no further argument
should be entertained. I didn't argue that motion and I was not
there when the ruling came out, but, I've included some of the
cases that I'm told were referred to by the Judge in his ruling
and I won't be making submissions on the argument of sufficiency
as I, in my respectful submission, submit to the Court, it's a
moot point at this stage in the proceedings.
The argument was that Mr. Turmel was charged with charges of
betting and gaming. The betting charge was withdrawn. The gaming
was dismissed. The case law is to the effect that because it was
withdrawn by the Crown, that the accused was never put in peril,
or in jeopardy.
And I refer Your Honour to the case of Petersen, which is the
leading case in this area of law from the Supreme Court of
Canada. The Supreme Court of Canada adopts the following sayings:
"In my view, a criminal trial commences and and an accused is
normally in jeopardy from the moment issue is joined before a
Judge having jurisdiction and the prosecution is called upon to
present its case in Court. The person accused continues in
jeopardy until final determination of the matter by rendering of
the verdict.
I do not consider that Dickson J. imposed by those words a
requirement that some direct invitation must be issued to the
Crown to call evidence before it could be said that the issue had
been joined and the accused placed in jeopardy. The authorities
he relied upon in his reasons support the proposition that once a
plea is entered before a court of competent jurisdiction the
accused is in jeopardy."
If it withdrawn or pleas entered, therefore, he is not in
jeopardy.
So, even when it's quashed, it's quashed prior to plea, the Crown
can still re-lay because no plea has been entered. So, again, it
goes much further than withdrawn, even when it is quashed before
a plea. The accused is not in jeopardy because no plea is
entered, the Crown is not called upon to present evidence and
that, in my respectful submission, puts that matter to rest.
So, we are really dealing here with not the betting charge,
because the betting can be put forth to the Court because Mr.
Turmel and the others were not put in that jeopardy as I
understand it.
So, the issue left is the gaming charge. The gaming charges were
dismissed by Judge Lennox because of the reasons of Judge
Fontana.
The argument that is advanced on autrefois acquit by the accused
is that because he runs the same operation, basically, and the
charges were dismissed on the basis of the proceeding operation
that, in fact, it would be a bar to any subsequent prosecution.
In a nutshell, that's how I understand his argument to be.
It is my respectful submission that the test for autrefois acquit
is set out in the Criminal Code under section 609 and the test
under 609 on issues of identity reads as follows:
"609(1) where an issue on a plea of autrefois acquit or autrefois
convict to a count is tried and it appears (a) that the matter on
which the accused was given in charge on the former trial is the
same in whole or in part as that on which it is proposed to give
him in charge...", et cetera, "...the judge shall give judgment
discharging the accused in respect of that count." That is the
provision in the Code where my friend, I assume, is bringing his
application for the charge to be dismissed on his special plea.
I've presented a number of cases, Your Honour, that stand for the
proposition that the requirement is that for the special plea to
apply, we are, in fact, dealing with an offence that has to occur
within the same time period, the same type offence must be
charged; we're dealing with the same transaction. In effect, the
spirit of this whole defence is to not allow the Crown to have
the same kick at the can when the same transaction is involved.
The substance of the section 609 is that the Crown is prohibited
from re-trying the issue when it's substantially the same matter.
Now, are we dealing with this situation here? In my respectful
submission, we are not for a number of reasons.
Firstly, the Information reads quite clearly, a different era.
The location of the establishment is different. And the series of
transactions are not the same as were before the Court in 1989.
It is not the same transaction. It is not the same rooming house.
It is not the same weiner and it is not the same pamphlet.
--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 519-756-1325 USENET: can.politics
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