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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
19931213
#93-18193
ONTARIO COURT (PROVINCIAL DIVISION)
HER MAJESTY THE QUEEN
against
JOHN TURMEL
**********
PRETRIAL
HELD BEFORE THE HONOURABLE JUDGE B. LENNOX
on December 13th, 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]
COURT: O.K. Again, we either have an agreement or we don't with
respect to certain facts, and my role is limited to try and
estimate the time that's going to be taken on the basis of the
evidence that has to be called and the argument that's going to
be made. The matter of particulars....
TURMEL: It doesn't look like there's much left.
COURT: Well, that was my impression in the first place, and
that's why I suggested we have this meeting, after the initial
Motions were dealt with, to try and find an accurate estimate of
time. Mr. Marin, have you had a chance to look over briefly the
admissions that were made at the earlier trial in 1989? A number
of them are particular to the circumstances, I take it, but....
MARIN: Well, that's exactly it. I've just looked at it now. Mr.
Turmel is right that he had indicated to me last week, but he'd
be looking at the same admissions as '89 and I did ask my
investigators who are not the same, and they could not locate it.
This is the first time that I have been provided with what was
admitted the last time. The location is different, and, I mean, a
lot of them, the first four, for example, are case specific.
TURMEL: Well, Your Honour, I happened to have typed up a draft of
one set for 1993. Perhaps I could just read it and the Crown can
object if there are any facts that are wrong.
COURT: Mr. Turmel, my understanding from reading the brief
disclosure that I was given for the purpose of the pre-trial is
that, among other things, the police attended with the knowledge
of yourself and the operators at the premises to make certain
observations during the course of the investigation into what has
now become charges. Is that correct? Would you, in the normal
course, just generally and without speaking of specific
observations, would you, in the normal course, have any
objections to their observations going in by way of agreed
statement of fact?
TURMEL: No. As a matter of fact, I took Appendix C from the
search warrant application. I have a copy here. I suppose you
have one already, eh, appendix C, about 27 pages of facts from
the investigation, and I've noted just a few things I do disagree
with, opinions mainly. And virtually the rest I don't believe
there's a problem. So that, if I am to look through here, do you
want to go over these few objections?
COURT: Could you just go quickly through it?
TURMEL: Paragraph 1.017 where it says, "The sum of $2.50 is paid
to the dealer." If they were willing to put in the word "tipped",
I would agree.
COURT: Instead of "paid"?
TURMEL: Instead of "paid". If they'll put in the word "tipped",
I'll agree.
COURT: All right.
TURMEL: Where it says, "The dealer is acting on behalf of the
house", well, actually that's not true. The house really isn't
involved in any poker at all, so the line there....
COURT: I think what you're just telling us, I don't expect
perhaps for you and the Crown to reach agreement today, but, if
the only things in issue are the matters you raise, then
presumably the other matters are matters of admission that you
are not disputing and that's quite helpful.
TURMEL: That's why out of the 30 pages there may be five or six
little things like that that I dispute and other than that I'll
sign it.
COURT: All right. Could you tell me what the next one is, please?
TURMEL: O.K. On paragraph 21... They talk about Sergeant Joe
Fotia (ph). I would like that advanced to December 1991 when he
investigated my home undercover, and that date happens to be part
of the search warrant. And one other thing, at this stage I must
bring up: Would it be possible to have an examination of the game
?
You see, they went from February 25th when I was in my home at
Baseline Road which they did investigate. Then, on February 28th,
I moved to Baxter Road, which they did investigate. Then, on
November, I moved to Topaz which they did investigate.
Now, different things changed under different administrations.
Like, when I was in my home, I covered no expenses; when I was at
Baxter Road, I covered a few; and when I was at Topaz, I covered
them all. So there are differences here and I think that I would
be willing to look at, you know, case A, case B, case C, for
home, Baxter and Topaz, because they weren't the same operation
in the three different locations. So could we split that up into
three different instances? O.K. Well, then, I want that changed
to December '91 when Officer Fotia came to my home.
1.080 where it says, this is now the second last paragraph, "He
feels he's lost $60,000 to Turmel over the years." Could they
change "to Turmel" to "at Turmel's", because I certainly didn't
win it from him. This guy is a poker player and probably several
people in the room participated in his losings. So I didn't win
it all and can they put "at" with any objection? Is that O.K.?
MARIN: Well, I'll note them, Mr.....
TURMEL: O.K. And then the very last paragraph, "... where he had
been. Playing recently and he was forced to give part of his
poker winnings to the house." Actually I would like to change
that "He'd agreed to pay $100 off a loan per win.' That's the
truth. You know, people hurt themselves. I let them come in and
play and if they made a win, give me a little bit. Standard
practice. I'll admit that for not him, but for everybody. You
know, if you wanted to keep playing and you made a win, you give
me a little bit. So he wasn't forced to give part of his poker
winnings to the house which implies "a rake", is that O.K. ?
MARIN: He agreed to pay $100 off what?
TURMEL: Off his loan. Is that acceptable?
MARIN: I'm going to note them all and....
COURT: It may be that the matters that you are raising now won't
be in dispute at all Mr. Turmel but I think it's fair to give Mr.
Marin some time to consider them before asking that.
SGT. CLEARY: What's the issue, Mr. Turmel, that you earlier
mentioned with regards to Baseline Road?
TURMEL: You included it in the indictment. From the 25th of
February when I was running Poker and Blackjack games in my home
to July '93. And I know that Officer Fotia investigated my home
because I saw it in his reports. So they may not want to talk
about the game in my home but I want to. It was the same game in
my home as it was at both other places.
SGT. CLEARY: The evidence that relates to that date, the first
date you mentioned..
TURMEL: 25th..
SERGEANT CLEARY:.. of November?
TURMEL: Of February, '92. It was just before Baxter Road opened.
COURT: It's Sergeant Cleary speaking and perhaps what we could do
is address your remarks through me to Mr. Turmel. It's not quite
the mode that we use in a Pre-trial but this isn't the forum for
a Pre-trial normally, either.
SGT. CLEARY: Your Honour, we don't plan on introducing any
evidence in relation to the gaming that took place at Mr.
Turmel's residence. We are introducing gaming evidence of 1141
Baxter Road, and of 2335 St. Laurent Boulevard, the Casino Turmel
at Topaz Plaza.
COURT: I take it, Mr. Turmel, you see some benefit to your
defence of having the earlier...
TURMEL: Well, yes, I do, and mainly because there was an
investigation by Officer Fotia. Officer Fotia did investigate and
obviously didn't report a crime and, therefore, I would like to
have Officer Fotia talking about what he saw on Baseline Rd., and
it's in the right date of the indictment. They should have
started on the 28th....
COURT: That's something I'm sure the Crown will consider. It may
not be something the Crown would have called, but, if you feel it
necessary for your defence, it may be something they are prepared
to admit.
TURMEL: O.K. Next page. I think there are only three more things.
The top paragraph, it says, "This has occurred many times to him
and others every time there was a split pot at the Poker tables.
Whenever there was an extra five dollars left in the pot, both
players who had split had to forfeit the five dollars to the
house or the dealer." O.K.? Now, I don't know how to change that.
mean, obviously if that's true, I'm guilty. So, if they did have
to forfeit five dollars to the house, well, I'm guilty. So that's
not true, I object to that statement that "they had to forfeit"
COURT: All right If the Crown wants that in evidence, it will
have to prove that or else state it in some other way that is
agreeable to you if some transaction actually took place. Is that
correct? You're not admitting that?
TURMEL: I'm not admitting that one, no. Next paragraph, where it
says, second last line, "The other percentage goes to John
Turmel." O.K. This is the "tip pool." They're talking about the
tip pool here, where everybody in the room know that I wasn't
involved whatsoever with the tip pool, and Officer Cleary went
and told the J.P. and I was taking half of it. So I will not
admit that I was taking half of the tip pool. They will have to
prove that one.
COURT: All right. Do the first two sentences in the paragraph
cause any difficulty in terms of an admission?
TURMEL: No, that's no problem at all. Salary, things like that.
By the way, one other thing: On the third line, where it says,
"plus one percent of the tips, could that be changed to "one
share?"
COURT: O.K. Again the Crown can take that under advisement.
TURMEL: All right. Because every employee got one share of the
tip pool pro-rated on hours. Of the hundred percent, I didn't
take fifty. So if they can make that "one share," then Mr. K's
statement is correct, except that the fifty percent went to me,
that wasn't.
Paragraph 1.090, fourth line, last word, "They had to tip the
dealer." O.K. I object to the word "had." They "could."
COURT: O.K. So you're saying that you're position is, if that was
made an option of the players, the players could tip the dealer
and that would be satisfactory to you?
TURMEL: Could tip. That's right. As long as -- well, it's
admitted later in other of his statements that there were times
when there were no tips.
COURT: And, if the Crown wishes to prove an obligation, then they
have to prove that through evidence.
TURMEL: Yes. O.K. Paragraph 1.092. "That they need these tips to
pay the rent and expenses." O.K. Well, I object to both those
two. I paid the rent personally, and expenses at Topaz. The
dealer's tips, I never touched. That would have been stupid.
1.093, Oh no. There's the proof. Third last line, "With the
exception of two winning pots where there were no tips." So
obviously it wasn't forced. But, anyway, I thank God he did
mention it at that point.
I do believe I found nothing else objectionable in their
statement. So, not only do I grant everything I agreed upon in my
'89 statement, but everything except those few objections should
make this rather easy at this stage.
COURT: Mr. Marin, is that of some assistance? You may not have
had a chance to review Appendix C recently but it seems to me
there are a number of factual matters that are clearly admitted
by Mr. Turmel that should serve to limit the issues and shorten
the time required for trial.
MARIN: Yes, absolutely, Your Honour.
COURT: And, Mr. Turmel, you have a copy now of an Agreed
Statement of Facts that you specifically prepared for this
proceeding, is that right?
TURMEL: Yes. I changed a few of the words, kept it identically
numbered so that it would be virtually -- well, there's a reason
for wanting to keep it identically numbered. And I could provide
the Crown with -- I can give him this one. I have it on my
computer.
COURT: O.K. And is it safe to say then the matters that are not
admitted by the Crown, you would required proof by them if they
don't agree to those statements?
TURMEL: Yes, but, of course, first I'd like particulars. I don't
know what all th is evidence means, until they specify what --
they promised particulars two months ago, and then they were
screaming Section (a) a month ago. I still want it officially on
the record. What section is the Crown using in the gaming and
what section is he using in the betting definitions? And I
remember in '89 when I said I would like particulars, you just
turned to the Crown and said," "Go ahead" and she did. So I'd
like particulars now so I can prepare and know which particular
sections to defend against.
COURT: Mr. Marin, are you in a position to specify?
MARIN: Your Honour, there is just one thing I would like to
clarify. My friend of the accused had raised the issue of
insufficiency of the Information before. That has been decided.
All right. So I just want to make that clear. The Court has
already ruled on whether it is particular or not. But, be that as
it may...
COURT: I thought that was a Motion to quash.
MARIN: For lack of sufficiency, and I believe the Court found the
Information to be sufficient in every respect, and so the Court
did not order particulars at that time. But, if I may say this,
that I have had the opportunity to indicate it before on the
record and lost with time, I believe , and I can do it now.
The common gaming house charge, the first count on the
information, section 201, the offence is to keep a common gaming
house which is the first count. The Crown is relying on the
common gaming house definition found under Section 197(a). All
right? There are five ways in which common gaming house is
defined. It is "kept for gain to which persons resort for the
purpose of playing games or" and then there are four alternative
ways that consist of a common gaming house. The Crown is relying
on the (a) definition of "common gaming house."
COURT: Which is kept for gain?
MARIN: That's correct.
COURT: For the purpose of playing games?
MARIN: And I come on this judicial pre-trial to get admissions on
the nature of the games played. Secondly, the issue of gain, and
I have identified at least nine or ten areas of gain through the
evidence that I was going to lead at the trial. The third element
would be the place and I believe that there can't be an issue
there. So it's really the game and whether there is gain. I mean,
it really boils down to something quite simple in my view, Your
Honour.
COURT: My understanding would have been and correct me if I'm
wrong: Those are the matters that were litigated previously. I
don't know if Mr. Turmel is in a position or would wish to admit
those. I had thought -- Mr. Turmel?
TURMEL: Yes, Judge Fontana did rule that there were no sales and
Section (a) did not apply. So I'll admit that.
COURT: I'm sorry, you're admitting what?
TURMEL: That Judge Fontana said section (a) does not apply.
COURT: O.K. I had thought that the way that this trial was to
proceed, quite frankly, with respect to the factual elements was
that almost everything would be admitted, but that you would
probably be required to call an expert to testify with respect to
the question of whether or not what was taking place in fact was
a game, whether or not the premises were being kept for gain for
the purpose of playing games. Now, it seems to me are you asking
for admissions in respect of those matters now?
MARIN: Yes, Your Honour.
TURMEL: I don't understand what's lacking yet. I mean I admit the
games. I admit everything about the games.
COURT: Well, we could go back to the first point which is whether
or not you are prepared to admit that the specific games,
Blackjack and Poker, are in fact games of chance or mixed chance
and skill?
TURMEL: They're admitted in there we were playing those games.
DET. YOUNG: Your Honour, if I could inject here, I am Detective
Constable Young with the Ontario Provincial Police, Anti-Rackets
Gaming section. The main focus, we would say, rather than going
on Section (a), 197(1)(A), our main focus of our investigation is
197(1)(a), but we are not restricted under 197 to keep our
evidence to 197(1)(a), but that is the thrust of our
investigation.
TURMEL: Oh, I thought they were restricted to the sections that
they claimed.
DET. YOUNG: We are restricted to the section or the definition
and in 197 under the Code under part VII is the definition by
which they can offend 201(1) of the Criminal Code, which is
keeping a common gaming house. However, they are totally open as
far as the violations concerning the sub-sections. We are not --
if we go under section 201(1), that's the charge, keep a common
gaming house, and, by that, we are unlimited in the definition
under 197.
TURMEL: And I though particulars were to limit them.
COURT: Yes, my understanding, too, at the elementary level, the
purpose of the particulars is to enable the defence to know the
charge that has to be met and in the normal course of events,
although the broader definition gives rise to a potential
liability, once the particulars are offered, then normally, the
scope of the prosecution is limited to the particulars provided.
I understood that was part of what we were doing.
DET.YOUNG: And the focus of that is 197(1)(a), Your Honour.
COURT: That's something that the trial judge would have to
ultimately to determine but I understood, in terms of
particularization, that, Mr. Marin, you were indicating (a) as
being the definition.
MARIN: That's correct, Your Honour.
COURT: All right. So there is an admission with respect to the
games. What was the next point, Mr. Marin, you were requesting?
MARIN: The aspect of gain, Your Honour, "Kept for gain," that the
premises were kept for gain.
TURMEL: Well, actually, I was saving this for last, but, I mean,
we now have the particulars for the gaming house, Section (a). I
would like to take a moment and see how all this evidence we have
been discussing now deals with the betting house charge. I mean,
therein likes the most ambiguous of all that have to face; with
again no particulars there and no evidence there, and I think,
before we get into the deepness of Section (a) which is a
legitimate attack I accept, I'd like to go on to the spurious
sections, the betting house which had no evidence in '89 and have
no evidence now and could really facilitate the case if we
dropped the spurious charges.
I unveiled a chart showing a list of the two sections with all
nine subsections and Marin's jaw dropped. He was totally
unprepared for any discussion of betting house particulars. I bet
he didn't even know betting house had so many different ways of
being committed.
I mean, I'd like to know what particulars they have on the
betting house when one considers that there happened to be nine
different ways I can violate the betting house. Under the (a)
section, I can enable bets, encourage bets, assist bets. Who
know? Maybe I did. Under the (b)s, I can receive, record,
register, transmit, pay bets. The point is: I don't know yet what
the particulars of the betting charge are, and before we get into
what I consider the legitimate case, I would like to deal with
the illegitimate charges first, if you don't mind, get
particulars of betting house.
COURT: I guess it was at an earlier pre-trial you suggested that
the Crown may wish to go only on the first count and not proceed
on the betting house? Is that your position?
TURMEL: Well, not, I'm not saying that they would prefer. I'm
just saying that the last three charges are spurious and can be
argued so, but let's see if they have any evidence on it when you
consider in '89 they had no evidence of betting house when they
charged me with it, and now again, they have charged me with
betting house once more, and again, I point out there is no
evidence of betting house. So I think the best way to show there
is no such evidence is to ask for particulars. Does he have any
recording slips of bets? Does he have any telephone calls of
bets? You know, I mean, which of these particulars or which of
these definitions have I violated? I don't know yet and I believe
there are none and that could really clean up the indictment
considerably to get rid of these ones.
COURT: Mr. Marin, with respect to the betting house charge, did
you intend to proceed on the betting house charges?
COURT: Yes and I presumed we were still on common gaming house
and I presume that the answer is that the "kept for gain" is not
admitted, and then we moved to the other charges but I would
still like to have an answer on common gaming house.
TURMEL: Well, I will. I promise to come back to that one in much
more depth once we get rid of the...
MARIN: The common betting house, the Crown is proceeding with
that. It's essentially the same evidence as used in common gaming
house. My friend has full disclosure of all the evidence and all
the statements.
TURMEL: Well, I have lots of case law that says common gaming
house and common betting house aren't the same, and he says he's
going to use gaming house evidence to prove a betting house.
COURT: Mr. Turmel, does that cause you concern? Your view, I take
it, from the beginning is that whatever this is, it could not be
considered a common betting house.
TURMEL: That's right. Well, yeah, it does cause me concern
because it serves to confuse. The last thing I want is a
situation where people who aren't gamblers have a chance to be
confused about the difference between betting and gaming, and, if
we could settle that before we go into a Judge, he'll be able to
devote his exclusive attention to no "red herrings." See, first
of all, I have a definition of "betting" but I don't think the
Crown does, and I think that it could pretty well be easily
established in just a few moments, and I am saying here now, I
could pull out the Pilon case which stresses that betting is on
outside considerations, horse races, Pro-Lines, things you don't
control, and gaming is betting on things you do control. Very
simple distinction by the Pilon case established and the Marbella
case, and I have four or five others explaining the difference
between gaming and betting which the Crown did have and I thought
might have read.
Now, the Crown thinks there's evidence of bookmaking at my place
and I'd like to hear -- I don't see any evidence of bookmaking in
anything I read so far. I see evidence with respect to Blackjack
and I see evidence with respect to Poker. Both games have always
been treated under the gaming house laws, have never been treated
under the betting house laws, and that's the reason why it was
dismissed, sorry, withdrawn in '89 and dismissed in '91. (in
Quebec) And not only that, now that they threw in two more
bookmaking sections.
If one realizes that the business of betting -- well, no, no, I'm
in the business of gaming and I admit it. I'm a professional
gambler. I'm in the business of gaming. And yet, they are
attacking me under the business of betting because they don't
have a definition of "betting" versus "gaming." I don't think
it's fair that I have to go into a Judge with three "red
herrings" and only one good one which could serve to confuse the
issue when there's zero evidence now, as there was zero evidence
in '89 and '91 of betting, and I think we should clean that,
that's the number one criteria to make this the true issue. Is
this a gaming house or not? Because there was no bookmaking going
on that I knew about.
COURT: O.K., Mr. Turmel. Again, I come back to my mandate in this
proceeding. All I really have before me is an Information. I'm
not entitled to go necessarily into the evidence or require
evidence evidence at this point. If the Information and the count
on the Information is valid on its face and the Crown says it's
going to proceed with it, then I presume it's going to proceed
with it.
TURMEL: Well, shouldn't the Crown be exposing what evidence they
have of my enabling bets, or my encouraging bets, or my assisting
or receiving or recording or registering or transmitting or
paying bets?
COURT: The material that's before you in terms of disclosure
should contain all the evidence upon which the Crown intends to
rely , and if there is no evidence of betting, then you may have
much less concern about that count than you would otherwise. But
I can't go any further than that, I don't think, except to ask
Mr. Marin, since we are discussing the second count, and there
has been a request for particulars, what is it specifically that
you're alleging under section 197 for the common betting house?
What activities? Is it a) or b) in terms of the definition?
MARIN: Again, Your Honour, this is the situation where the Crown
will be relying on (a).
COURT: That's enabling, encouraging or assisting to bet between
themselves or the keeper?
MARIN: That's correct, Your Honour. Yes.
COURT: All right. don't think I can go any further than that, Mr.
Turmel. If the evidence isn't there, then, from your perspective,
that's a good thing and if it is, then the Crown is entitled to
call it an rely on it.
COURT: The question was whether or not the premises were being
kept for gain, I think, Mr. Marin?
MARIN: Yes, Your Honour.
TURMEL: O.K. Well,
COURT: I think, Mr. Turmel, again, perhaps, unless there is a
need for particulars, then you....
TURMEL: No, this is going to be pretty good. Now I brought along
a little graph because I assumed we'd be dealing with Section (a)
because that's what it said. Can I put it here for a moment?
COURT: Now the point is: Section (a) says "a place kept for gain
to which persons resort fort the purpose of playing games," O.K.,
"of gambling," I put here.
TURMEL: Now the point is: What kind of a place "kept for gain"
operates to which persons do not resort for the purpose of
gambling? Well, obviously, if you have parking, entry fee, coat
check, dinner, drinks, food, smokes, photographers, video tames,
all these things can make the house money independent of whether
there is a game there or not.
Now, obviously, we've got four ways when it's a game of finding
the game illegal but the mere fact of bringing gambling, whether
it be a legal game or not, into this environment makes this a
gaming house under Section (a) because it's a place "kept for
gain" to which persons resort for the purpose of gambling.
Now, for the moment, let's shut down every game in my casino. No
Blackjack games, no Poker games. I now say to the Crown: What
kind of gain have I made when they are not coming there to
gamble? So the (b) section deals with the gambling, the (a)
section deals with the house.
I think the Crown blew it today. I think this is a big mistake.
The fact is I have a letter there from Judge Young, former Judge
Young, who explained in one of my o0pinions that the gain out of
the house is different than the gain out of the game.
I'm saying here the Crown has now restricted themselves to
accusing me of making a gain out of the place, like they
originally thought I was charging for the cigarettes, and they
found out after the raid I wasn't, and they originally thought I
was taking half the tips -- mind you, that would be a rake-off
under the gaming section -- and they found that I wasn't.
I'm saying right now I don't see any evidence taking out the game
that there was any (a) section gain possible. If you shut down
the Poker and Blackjack, there was no GST-able commerce going on
and that's why my statement of admissions for '93 says that the
Government didn't ask me to pay or collect GST or anything in my
place. No GST-able gain and now the Crown has the problem of
coming up with evidence of a gain which would be illegal when the
game is there not when the game isn't there. And the best way is
an analogy.
Imagine they changed the laws, tighter laws in the country. We
have a place kept for gain for which persons resort for the
purpose of dancing, or fencing or sewing or singing. If you bring
a choir into the place, it's illegal, but if you don't have a
choir in the place, it's not illegal. Well, it's the same kind of
thing. These gains are not illegal under normal circumstances and
become illegal when gambling is brought in and now that they've
alleged there's none of the illegal games being played, I don't
think they have anything left. So I don't know what the Crown
wants to do with this now but I think they're dead.
--
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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