TURMEL: #13 Robin Hood Raid on Casino Turmel Trial Transcript

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 

19930208
#93-18193
        ONTARIO COURT (PROVINCIAL DIVISION)               
               HER MAJESTY THE QUEEN
                      against
                    JOHN TURMEL
                    **********
                    PRETRIAL II
    HELD BEFORE THE HONOURABLE JUDGE B. LENNOX  
      on February 8, 1994 at Ottawa, Ontario.
                    **********
[continued]

AFFIDAVIT OF JOHN TURMEL

13. On Feb. 21, 1994, Mr. Marin faxed me a list of anticipated 
witnesses which included 20 names, hardly the paring down 
expected number for the announced two-day trial. In 1989, the 
legal issues were established on the basis of an Agreed Statement 
of Facts and the testimony of three witnesses. 

14. Considering Point 4 of the Undisputed Facts between the 
Parties admits how much rent John Turmel paid at both locations, 
it seems the two landlords who were subpoenaed should have very 
little if anything to add. After that admission in 1989, the 
landlord wasn't even called and with that same admission now, I 
am quite interested in learning what else they could possibly 
have to add to the Crown's case to justify their presence on the 
witness list.

15. No other admissions were added to the Undisputed Facts 
between Parties other than that I did not control the dealers' 
tips account; yet, the word "all" was not deleted from the 
statement that I controlled "all bank accounts" in the 
"Undisputed Facts from the Transcript." This direct contradiction 
between facts in the two documents is one of the unfortunate 
results of producing a two-document substitute where a one-
document Agreed Statement of Facts would have more than sufficed.  
Why the Crown chose to produce two documents with rather unheard-
of names instead of an Agreed Statement of Facts is unclear but 
it certainly confused them enough to miss the contradiction.

16. None of the ten areas of gain the Crown stated it had 
identified have been disclosed. The Crown had forestalled a 
special plea of "autrefois acquit" on the basis that those ten 
areas of gain had been identified and has yet to disclose such 
identifications to the Defence.

17. My 150 former employees have been asking for their T4 slips 
and Revenue Canada says they must be mailed out by the end of 
February. Incomplete disclosure of the computer files has 
hampered my ability to accomplish this civic duty. My book-
keeper, Howard Greenberg, telephoned Ottawa Police Sgt. Cleary to 
ask that he might come to the station and print out the T4s on 
the seized equipment or make an electro-magnetic copy of the 
subdirectory with the necessary financial information on a 
diskette. It's as easy as putting an electro-magnetic diskette in 
the A: disk drive, moving to the data subdirectory on the hard 
disk and typing: COPY *.* A: which leaves the information on the 
hard disk intact while sending a copy of that electro-magnetic 
information to the diskette in the A: drive. Sgt. Cleary refused. 

18. I telephoned Mr. Marin and asked if he had any objection to 
my receiving disclosure of the financial information on diskette 
and he did not. But when I called Sgt. Cleary, I was told it 
couldn't be done. 

19. A Revenue Canada agent visited Sgt. Cleary to help us obtain 
access to the tax-information but Sgt. Cleary told him that 
sufficient information had been disclosed for me to meet those 
requirements. I do not know if Sgt. Cleary has any accounting 
expertise with respect to selecting which records and fields of 
information are necessary for the completion of Canada's tax 
forms. Logically, it's to be expected that all the computer's 
files deemed relevant by the prosecution were printed out and 
disclosed. But it's not logically to be expected that all the 
computer files deemed relevant by the defence were also printed 
out and disclosed. I have checked some of the printed-out 
information I was given in disclosure against my knowledge of the 
database structures I created and I can show that many fields of 
information in the financial and witness databases were omitted 
from the printed records. Since certain fields of information 
have been found missing from the printed transcript, the Defence 
can not know if all the information relevant to the Defence has 
been printed out unless the Defence also has access to the data's 
electro-magnetic medium.

20. With the video tape evidence, the Crown disclosed the 
information in both the electro-magnetic medium and paper 
transcript medium. Having provided data in the electro-magnetic 
form which is compatible with the video technology seems to have 
in no way prejudiced the Crown's case there. Since the original 
electro-magnetic information is as easily disclosed on the 
diskette medium as on the video tape medium, there should be no 
reason full disclosure would not include production of full 
information on both media.

21. Because the Crown has the information on an electro-magnetic 
medium, they have the capability to examine the prima facie 
electro-magnetic evidence with the computer program that created 
and managed it. In the financial reports disclosure on Feb. 14, 
1994, witness Penny Cookson says in point #2.2b:

"I received the available photocopies of the Income Statement 
prepared using "AccPac Simply" program. 

22. She notes a financial statement prepared with that program 
over the 18-day period in question which showed an average weekly 
win of $74,498.05. She also noted another financial financial 
statement prepared for a selected 14-day period within that 18 
days which showed that I averaged $102,504.75 per week, a weekly 
increase of 28,006.70. This 38% percent weekly increase was 
accomplished by ignoring a stretch of three days where I had 
suffered losses. It's evident counting wins and not counting 
losses makes the wins look bigger.

23. The Crown's use of AccPac Simply to present some of the 
information in such a way as to infer the largest possible debit 
by not counting some losses could have been matched by my use of 
AccPac Simply to present some of that same information to infer 
the smallest debit by not counting some of the wins. Not counting 
the wins would certainly have been as valuable to the Defence as 
not counting the losses has been to the Crown. 

24. My defence has therefore been impaired by my inability to 
examine the evidence in the same detailed fashion as is available 
to the Crown. I've been restricted to examining less than all the 
information with pen and paper even though I too possess the same 
technological tools of retrieval and examination for the prima 
facie electro-magnetic evidence. If there are going to be 
accounting arguments, I should have the same information 
management capabilities as the Crown. To restrict me to a paper 
copy of electro-magnetic information seems to be a fundamental 
lack of disclosure. 

25. This This Affidavit is made in support of an application for 
an Order that the Crown complete the following undertakings:

a) to dispense with unnecessary witnesses;

b) to produce an Agreed Statement of Facts;

c) to disclose 10 areas of Section (a) identified;

d) to correct the Undisputed Facts from the Transcript;

e) to reconsider disputed admissions.

f) to complete full electro-magnetic disclosure.

Sworn in Toronto on Feb. 22, 1994.
**********

940223

SUCCESS

Mr. Marin faxed me a letter at 5p.m.

Dear Mr. Turmel:

Further to our letter dated Feb. 21, 1994, we have now received 
your Record for the Motion scheduled to be heard Feb. 24 and we 
wish to advise you of the following:

1. Re: "Undisputed Facts between Parties." The facts listed as 
11, 17, 18, and 19 in paragraph 5 of your record are not 
disputed.

2. Furthermore, please be advised that the Crown will not be 
proceedings on the betting charges listed for trial on the 24th 
of February. We will therefore be withdrawing the following 
betting house charges s. 201(1), 202(1)(c) and 202(1)(e).

3. We would like to meet with you Thursday at 9a.m. at the 
Crown's office in order to sort the required witnesses so as to 
further reduce the witness list.

Please confirm receipt of this letter before 4:30p.m. since our 
offices are closed after that time.
Andre Marin

This is the Affidavit that broke the betting house camel's back. 
It basically showed them the case law they might be arrayed 
against as well as quoted every put-down to date.


AFFIDAVIT

1.0 On April 3, 1989, Mr. Matt Sagle defended gamblers charged 
with being found-in a betting house for playing at "Turmel-style" 
Blackjack. Mr. Sagle is an accomplished "card-counter" at the 
game and could easily earn a winning expectation. After the Crown 
had proffered no evidence other than evidence of card playing, 
Ontario Provincial Court Judge Fontana granted his motion for 
non-suit and dismissed the charge.

1.1 On April 7, 1989, the Crown then withdrew charge of keeping a 
betting house against John Turmel.

1.2 On Oct. 22, 1991, Quebec Provincial Court Judge Bonin 
acquitted John Turmel of keeping a betting house for playing at 
"Turmel-style" Blackjack.

2.0 The case law seems very clear. In every case, card games were 
not found to be prima facie evidence of a betting house:

BALL (1957)118ccc361qca Betting on horses

BOOTH, (1989) Fontana acquittal on betting with cards

LEWIS (1949)97ccc268QKB Cards not betting Recording essential

MAH SAM (1910)15WLR668SCC Gaming different from betting

PILON (1920)32ccc342 Difference between gaming and betting

RUSKOFF (1979)41dccc2d93oca/scc Cards not betting

TURMEL, (1989) Lennox withdrawal of betting house

TURMEL, (1991) Bonin acquittal of betting house

2.1 Betting convictions have always been for bets on outside 
considerations with the usual bookmaking paraphenalia and 
activities: BENWELL (1972)9ccc2d158oca Betting on horses

DECOME (1991)63ccc3d460qca Keeping accounts Mini-Lotto numbers

JARMAN (1972)10ccc2d426oca Recording Registering Betting slips

JOHNSON (1915)25ccc124osc Betting slips

WILSON (1986)26ccc3d8MQB Recording Placing Transmitting bets

2.2 Other cases which may be procured:

BANK OF TORONTO (1878)28uccp345 Betting definition

CARLILL v CARBOLIC (1892)2qb484 Betting definition

COHEN (1984)15ccc3d231 Bookmaking definition

EARL OF ELLESMERE (1929)2Ch.1 Betting definition

GHIO (1927)255p.205(dis C.A.2ndDistDiv1 Calif Placing of bets

GRUHL AND BRENNAN (1970)1ccc104 Betting on horse

GULA AND BERNESKI (1971)17crns129 Taped bet taking

HATTY (1955)111ccc145nbca Betting contracts definition

HORBAS (1970)5ccc46 Betting contracts

KELLY (1982)qca500-20-000008-803 Sports betting

LEBANSKY (1941)75ccc348 Betting definition

LUNCHEON (1929)A.C.400 Betting definition

MOZEL and McCauley (1973)5ww4333 Bookmaking vs betting house

POWELL (1899)a.c.143 Bookmaking definition

SILVESTRO (1965)2ccc253 Receive Record Register Transmit Pay bets 
with phone taps - No need record/ Enough simply enabling the 
receiving

TOTE INVESTORS (1967)3wlr1239 Betting definition

TRUDEL (1969)3ccc95 Betting contracts

VACCARO (1974)27crns162 Betting on baseball

3.0 On July 20, 1993, for organizing games of "No-rake-off" Poker 
and "Turmel-style" Blackjack in Ottawa, John Turmel was charged 
under Section 201(1) with keeping a gaming house and and keeping 
a betting house. Evidently, the Crown thinks gaming and betting 
house acquittals have to be two out of three. John Turmel was 
further charged under subsection 202(e) with being in the 
business of betting and finally charged under subsection 202(c) 
with controlling monies from any subsection of section 202; in 
this case, subsection (e), the business of betting. The Crown did 
not charge any found-ins in my case.

3.1 On Oct. 21, 1993, for organizing identical games in Ottawa, 
David Booth, one of my former managers, was charged with the same 
four offences but the other keepers and found-ins were charged 
only with gaming house, not a betting house offences.

3.2 On Dec. 2, 1993, for organizing "Turmel-style" Blackjack in 
Mississauga, Denis Mazerolle, one of my former managers, was 
charged with only gaming house and not charged with betting 
house. No found-ins were charged. 

3.3 Do Dave, Denis and I need one out of three, two out of three, 
or three out of three to be left alone?

4.0 With respect to the betting charges, the transcript of my 
Dec. 13, 1993 judicial pre-trial shows:

MARIN: (page2) The games of Blackjack and Poker were played."

COURT: (page26) Mr. Marin, with respect to the betting house 
charge, did you intend to proceed on the betting house charges?

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 the gaming house evidence to prove a betting house.

COURT: Mr. Turmel, does that cause you concern? Your view, I take 
it, is that whatever this is, it could not be considered a common 
betting house. 

TURMEL: That's right.... 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... I don't think it's 
fair that I have to go into a Judge... when there's zero evidence 
now, as there was zero evidence in '89 and '91 of betting...

COURT: O.K., Mr. Turmel. Again, I come back to my mandate in this 
proceeding.... I'm not entitled to go necessarily into the 
evidence or require evidence at this point.....

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 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: All right. I 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 and rely on it.

4.1 Though card games have never been prima facie evidence of 
betting house, the Crown has alleged only that "the games of 
Blackjack and Poker were played" and that the betting house 
evidence the Crown has to proffer is "essentially the same 
evidence as used in common gaming house." In gaming we account 
for wagers by fading them with chips; in betting we account for 
wagers by booking them with slips. Chips are not used in betting 
houses and betting slips are not used in gaming houses. It seems 
a clear distinction.

4.2 In restricting themselves to section (a), enabling, 
encouraging, or assisting betting, the Crown has acknowledged 
that none of the five betting activities listed in the (b) 
subsection actually took place. No one was charged with doing any 
betting but I was charged with helping. An allegation of a 
Section (b) activity would seem to be an essential averment 
before an allegation of enabling such activity can be made. Since 
no bets were alleged to have been received, recorded, registered, 
transmitted or paid, I submit that I could not enabled, 
encouraged or assisted the five such betting activities which are 
not even alleged to have taken place. 

4.3 In failing to charge any of the found-ins from the Booth raid 
with both gaming and betting offences as Booth himself was 
charged with keeping both, the Crown has again acknowledged the 
impropriety of betting house charges against found-ins, none of 
which placed a wager on anything but cards.

4.4 In failing to charge Denis Mazerolle with keeping a betting 
house and only charging him with keeping a gaming house and as 
O.P.P. Officers Bihun and Young participated in all three 
prosecutions, it now seems that the Crown has backed off the 
allegation that card playing is evidence of a betting house. I 
further submit that it would not be equal treatment under the law 
for my Turmel-style game to be encumbered with defending against 
the spurious betting house charge when Mazerolle's Turmel-style 
game was not.

5.0 On Jan. 20, 1993, as the appointed agent for nine of the 
found-ins at the Booth Club raid, I attended a scheduled judicial 
pre-trial with four attorney's for the keepers including Matt 
Sagle for Dave Booth, two police officers and Judge Lennox. Mr. 
Sagle indicated his disappointment in again having to deal with a 
betting house charged but unfortunately, Mac Lindsay, the 
assigned Crown was ill that day and the pre-trial was scheduled 
for Feb. 2, 1994.

5.1 On Feb. 2, 1994, I again attended a scheduled judicial pre-
trial with the four attorney's for the keepers, two police 
officers and Judge Lennox. Crown David Stewart indicated that Mr. 
Lindsay was elsewhere preparing for another trial. He wasn't at 
another trial. He was just too busy preparing for another trial 
to meet with us. From my audio-taped notes: 

SAGLE: My concern today was to get the Crown to particularize the 
betting and the gaming house. In the Turmel case, they've gone on 
(a) sections in both cases. That's one of the biggest things I'm 
trying to get out of this. Are you prepared to make that choice? 
Focus in?

STEWART: Not today.

5.2 After discussion of rescheduling the pre-trial in March:

SAGLE: Leaving it that late leaves some options to the Crown to 
make decisions based on what happens later. In other words, 
they're focused in on the (a) section with Mr. Turmel's trial, 
and rightly so, but supposing they lose that trial and there's a 
good indication they will, then they come back and though they 
might go into (a), they decide to go into (b) just because it's 
more convenient or they've already lost on one. I want to know 
what they're going to do on this and get them pinned down so we 
can decide how we're going to respond.

COURT: My preference is to deal with the person who has dealt 
with has dealt with the previous similar matters and who has 
carriage of this and can deal with it more effectively... Mr. 
Sagle, do you have any further concerns?

SAGLE: There was a lot of information from the Crown I wanted to 
get and things I wanted to do today basically with respect to the 
betting charges and bail conditions. That wasn't urgent. 

5.3 Judge Lennox then returned to the topic of this motion:

COURT: Was also not one of the concerns whether the Crown would 
be proceeding on the betting house as opposed to gaming house?

SAGLE: Oh yes, certainly. That's the betting house and gaming 
house sections.

COURT: So you want to know: "Is it gaming or betting? Is the 
Crown going to proceed on one, the other, or both?" 

SAGLE: Yes.

COURT: And secondly, with respect to each one, "Is the Crown 
relying on (a) or (b)?"

SAGLE: Yes, they have basically not gone on betting against any 
of the keepers but only against Mr. Booth. I was hopeful that Mr. 
Lindsay would have looked this stuff up and checked the law and 
cases by now and be in a position to realize the distinction 
between the two and be able to tell us he wouldn't go on that. I 
don't suppose there's any chance another Crown could handle this 
case? 

COURT: I would, having been involved in the other one, I think 
you might well be better off with Mr. Lindsay.

5.4 I then brought up the connection between the two trials:

TURMEL: Excuse me, your Honour, now it looks like most of the 
information is going to be pushed off to within a week of my 
trial or after and it looks like I'm going to have to go and 
prepare a defence for the betting house charge. Now, I was hoping 
that the attorneys would be able to reason with the Crown because 
I don't expect, as a layman, I'll have the same effect on the 
Crown. And now it looks like no one's going to be reasoning with 
the Crown until one week before my trial. 

COURT: Mr. Turmel, this isn't related to your other trial.

TURMEL: Well, actually, it is because it's an identical Turmel-
style game. We're both facing betting house charges. I don't have 
a lawyer so I can't reason with the Crown. We have people here 
with the identical misapplication of the section. Surely their 
lawyers could sit down with Mr. Lindsay and within half an hour, 
especially with the case law that's available, convince him not 
to waste everybody's time. But at this stage, it looks like I'm 
going to have to go waste my time. 

COURT: Isn't Mr. Marin the one who's got your file? 

TURMEL: Yes. 

COURT: So Mr. Lindsay is of no particular use.

TURMEL: The point is there's got to be some consistency. If they 
drop the betting house because Mr. Lindsay's convinced by his 
peers that's it's really pretty unusual, perhaps Mr. Lindsay will 
be able to prevail on Mr. Marin and save me some time. But I 
don't want to walk into court having to go against a betting 
house charge which scares me more than the gaming house charge 
because if the judge makes out a case with zero evidence, I need 
infinity to win. I have motions prepared here and I'm going to 
keep going and get back in front of Judge Wright on the betting 
house alone but I don't want to waste his time or mine. I've 
already researched a dozen cases and I've got another twenty to 
go and it's just not right I should be spending time on something 
ridiculous especially when I'm using transcripts from our pre-
trial where you used the words "no evidence" instead of "little 
evidence" of betting house. I mean, what does it take the Crown? 
How many hints did you have to give them? 

COURT: Mr. Turmel, there are two problems here. One is this has 
nothing to do with Dave's Junction in the pre-trial we're doing 
here where you're representing the found-ins and secondly, you 
and I should not be talking about your case in the absence of the 
Crown who has carriage of it. All we do now is agree to meet 
again on Feb. 18, twelve thirty.

6.0 When Judge Lennox asked if the Crown was proceeding with the 
betting house charge in both pre-trials, the implication was an 
invitation for the Crown to consider the alternate option of not 
proceeding? Judge Lennox did not bother to ask the Crown if they 
were really proceeding with the gaming house charge because it 
makes historical sense. Dealing with this total absence of 
evidence, Judge Lennox twice said "I can't go any further." I 
submit the only thing further Judge Lennox could have been 
contemplating was quashing the charges. If only the trial judge 
may go further, then the Defendant submits this Honourable Court 
should quash the betting charges before the Defendant spends any 
more resources preparing a defence against a completely frivolous 
and vexatious absence of evidence. 

6.1 If the Crown does not have some new case law, even one, which 
now permits the laying of betting house charges against card 
games, then the case law which shows that wagering on cards is 
not prima facie evidence of betting should be accepted and the 
total absence of evidence of betting should allow the charge to 
be quashed on a pure question of law.

7.0 On the grounds that the judicial pre-trial has disclosed that 
all wagers were made at the card games of Poker or Blackjack and 
that no actual Section (b) betting activities, essential 
averments, were even alleged, this Affidavit is made in support 
of an application for:

1) an Order quashing the last three counts of betting offences on 
a question of law, that is, a complete absence of prima facie 
evidence; or

2) an Order pursuant to the special pleas of autrefois acquit and 
issue estoppel quashing the count of keeping a common betting 
house on the grounds that the Defendant has been formerly 
acquitted in the identical circumstances in 1991 by Judge Bonin; 
or

3) an Order staying the betting charges on the grounds their 
continued prosecution tends to bring the administration of 
justice into disrepute.

--
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