Between:
John C. Turmel
Applicant/Accused
And
Her Majesty The Queen
Respondent
RESPONSE TO THE APPLICATION FOR LEAVE
(under s.691(1)(b) of the Criminal Code
and S.40(1) of the Supreme Court Act)
1. The Respondent can add little to the
cogent reasons provided buy
the Court of Appeal in its judgment of
Aug. 13 1996 and relies heavily
on them for the proposition that no issues
of national importance are
raised on this application and that leave
should not be granted.
PART I:
STATEMENT OF FACTS:
2. For the purpose of clarity, the Respondent
relies on the facts as
summarized by the Court of Appeal. A review
of the relevant facts can
be broken down into three categories relating
to:
A. the plea of autrefois acquit and res
judicata;
B. the statutory interpretation of s197(1)(a)
of the Criminal Code;
C. the sentence.
3. Before conducting this review, it is
important to understand the
two facets of the definition of "common
gaming house" contained in
the Criminal Code, R.S.C. 1985, c C046,
s.197(1). Subsection 197(1)(a)
provides a general definition asserting
that a gaming house is a place
"kept for gain to which persons resort
for the purpose of playing
games." Subsection (b) is an alternative
definition. Under this
definition, the Crown need only prove
that gaming was conducted under
one of the four rules which render the
keeping of a gaming house
illegal. These four rules, which give
an advantage to the person
operating the gaming house, are listed
in s.197(1)(b). A common gaming
house means a place that is kept or used
for the purpose of playing
games
(i) in which a bank is kept by one or
more but not all the players,
(ii) in which all or any portion of the
bets on or proceeds from a
game is paid, directly or indirectly,
to the keeper of the place,
(iii) in which, directly or indirectly,
a fee is charged to or paid
by the players for the privilege of playing
or participating in a game
or using gaming equipment, or
(iv) in which the chances of winning are
not equally favourable to all
persons who play the game including the
person, if any, who conducts
the game.
When invoking s.197(1)(b), the Crown need
not prove that the place was
kept for gain. All that is required is
that one of the rules listed
above had been put into practice.
A. Facts relevant to autrefois acquit and res judicata
4. The conviction for keeping a common
gaming house at issue on this
Application was imposed on May 16 1994
by Judge Wright after rejecting
the Applicant's plea of autrefois acquit.
It related to two gaming
operations in Ottawa on Baxter Road and
St. Laurent Blvd. The Crown
did not argue that any of the rules prohibited
by s.197(1)(b) had been
used by the Applicant in running his casinos.
Instead, it successfully
relied on the general definition in s.197(1)(a)
requiring proof of
"gain."
Reasons p12-13,14 [Court of Appeal]
5. Seven years prior to this conviction,
on April 3, 1989, four of the
Applicant's customers had been acquitted
by Judge Fontana of being
found in a gambling establishment operated
by the Applicant on Carling
Avenue. Judge Fontana ruled that the establishment
was not a gaming
house.
Reasons p6-9 [Court of Appeal]
6. A few days later, on April 7, 1989,
the Applicant came before Judge
Lennox on gaming charges stemming from
his operation on Carling Ave.
Judge Lennox decided to adopt the reasons
of Judge Fontana and
acquitted the Applicant. The Crown did
not appeal.
Reasons p.9-10 [Court of Appeal]
7. In all his gambling establishments,
the Applicant offered his
customers blackjack games which were played
under certain rules. These
"Turmel rules" - which included a limited
rotation of the role of the
bank to the players and excluded any fees
to the house - represented
an attempt by the Applicant to avoid the
four specific elements of
s.197(1)(b).
Reasons p11-13,27,28 [Court of Appeal]
8. While substantially the same blackjack
rules prevailed in all of
the operations run by the Applicant, the
Respondent takes issue with
the references in the Application to "same
evidence" being led against
him concerning the Carling Avenue operations
in 1989 as was led
against him in 1996 over the operation
of the premises on St. Laurent
Blvd. and Baxter Rd. Only the Blackjack
rules and the keeper of the
premises (the Applicant) remained the
same; the evidence led on each
location involved a different time-frame
and a different location.
Reasons p18,20,23 [Court of Appeal]
B. Facts relevant to the statutory interpretation of s.197(1)(a)
9. The evidence on whether the establishments
at St. Laurent Blvd. and
Baxter Rd. were "kept for gain" was led
in the form of financial
analysis of their operations and statements
from the Applicant's
employees and undercover police officers.
Reasons p26 [Court of Appeal]
10. The St. Laurent location was described
as a "full-fledged casino"
with around 20 uniformed employees and
between 75 and 100 customers in
attendance and eventually operated 24
hours a day with a gross monthly
income of $600,000. At Baxter Rd., five
Blackjack tables were observed
in operation and monthly net revenues
from this location were as high
as $30,000. The Applicant's wage costs
for one month were $175,000.
His general manager estimated total yearly
profits at $1,000,000.
Reasons p26-27 [Court of Appeal]
11. Expert evidence was led by the Crown
to demonstrate that these
revenues came from the Blackjack tables
under the "Turmel rules."
While these "Turmel rules" may not have
infringed s.197(1)(b), they
gave the revenue-generating advantage
to the house run by the
Applicant. First, the rules only provided
for a limited rotation of
the role of the bank and even this limited
rotation was loosely
enforced. To even out the house's advantage,
the role of the bank
would have to go to the players half the
time. It did not. Second,
under the "Turmel rules" a player could
only be bank against the
house. The true advantage of being bank
is in facing several players
at once which allows the bank to collect
on the busted hands by going
last during each round. Therefore, even
under the Turmel rules, the
keeper of the game retained his lucrative
position. As the Applicant's
general manager stated:
The casino makes
its money from the Blackjack tables. It's what
pays the bills. If you take out the Blackjack
tables you wouldn't make
any money. If you don't make money, the
casino wouldn't be here.
Reasons p27-28 [Court of Appeal]
C. Facts relevant to sentence
12. The Applicant had a related criminal
record and had recently been
sentenced to four months for keeping a
common gaming house. In this
case, he was given a suspended sentence
with three years probation,
200 hours of community service and a victim
surcharge of $2,500. An
overly-restrictive probation term concerning
the Applicant's ability
to gamble was redrafted by the Court of
Appeal.
Reasons p2,32-33 [Court of Appeal]
R. v Turmel [1995] O.J. No. 2683 C.A.
PART II:
STATEMENT OF POINTS IN ISSUE
13. Does the application of autrefois acquit
and res judicata in this
case raise an issue of national importance
or otherwise merit leave?
14. Does the interpretation of s.197(1)(a)
of the Criminal Code raise
an issue of national importance or otherwise
merit leave?
15. Does the sentence imposed on the Applicant
raise an issue of
national importance or otherwise merit
leave.
PART III:
ARGUMENT
A. Autrefois acquit and res judicata
16. The Court below ruled that the mere
fact that the blackjack rules
at the casinos were the same at the 1989
trial as were at issue in
1996 did not allow for a plea of autrefois
acquit nor raise concerns
about res judicata and the rule against
multiple convictions. The St.
Laurent Blvd. and Baxter Rd. operations
were distinct from the earlier
one on Carling Ave. and were capable of
independently supporting
criminal liability.
Reasons p18-20 [Court of Appeal]
17. Whatever was said by Judge Fontana
in 1989 (and adopted by Judge
Lennox a few days later) on the application
of s.197(1)(a) to the
"Turmel rules" was not clear enough to
settle the issue through issue
estoppel and make the 1989 acquittal binding
on Judge Wright in 1996.
Reasons p24-25 [Court of Appeal]
R. v. Von Rassel [1996] 1.S.C.R. 225
18. IN reaching this conclusion, the Court
below relied on cases from
the Supreme Court of Canada. In particular,
the Court cited Dickson
C.J. in R. v. Prince [1986] 2 S.C.R. 480
at p491:
It is elementary
that Kienapple does not prohibit a multiplicity
of convictions each in respect of a different
factual incident.
Offenders have always been exposed to
criminal liability for each
occasion on which they have transgressed
the law, and Kienapple does
not purport to alter this perfectly sound
principle. It is therefore a
sine qua non for the operation of the
rule against multiple
convictions that the offences arise from
the same transaction.
Reasons p21-22 [Court of Appeal]
19. The "perfectly sound" nature of this
principle is evident on the
facts of this case. If the Applicant's
submission (that Judge
Fontana's ruling decides his case because
the same "Turmel rules" were
still in use the purpose for the 1996
trial) is correct, then the
Applicant has been granted a personal,
life-long exemption from
prosecution no matter where and how many
times he operates his private
casino under those rules. This would not
be a proper outcome, not one
fair to other individuals who would not
benefit from the same
exemption.
Reasons p18 [Court of Appeal]
20. Instead of bringing into question the
principle that different
transactions do not bar subsequent prosecutions
and warranting that
that principle be revised by the Supreme
Court of Canada, the facts of
this case merely confirm the principle's
wisdom.
21. The authority cited by the Applicant
for the contrary proposition
was ably distinguished by the Court below.
In R. v. Carrier (1951) 104
C.C.C. 75 (Que. K.B.), the King's Bench
in Quebec allowed a plea of
autrefois acquit to be entered in a relation
to a pamphlet allegedly
containing false news. The accused had
already been acquitted on a
seditious libel stemming from the very
same pamphlet. In City of
Montreal v Rothman Realty (1963) 41 C.R.
372 (Mun Ct.), a municipal
court in Montreal dismissed charges of
operating a rooming house given
a previous acquittal on the same charge
relating to the same building.
The Court below held that the similarities
between the first and
second prosecutions in those cases were
greater than here and that
those cases were simply examples of stare
decisis (or judicial
comity).
Reasons p16-18 [Court of Appeal]
22. Even assuming that the cases cited
by the Applicant are in
conflict with the present one, neither
Carrier nor Rothman Realty,
supra, present the type of disagreement
amongst appellate courts that
is generally a hallmark of an issue of
national importance. Further,
if this HOnourable Court wishes to revise
the law as it relates to
judicial comity and res judicata issues,
it is submitted that the
Court might await to see how other courts
of appeal deal with any
conflict between the decision here and
the cases relied on by the
Applicant.
23. The Court of Appeal's treatment of
these issues is thorough and
comprehensive. As such, it would provide
a solid basis for any
judgment the Supreme Court of Canada might
wish to render on the
subject. However, there is nothing controversial
in what was said
below that would warrant this Court granting
leave in the first place.
B. The interpretation of "kept for gain" in s. 197(1)(a)
24. The Applicant also raises the issue
of the interpretation of the
phrase "kept for gain" in s. 197(1)(a).
The Applicant characterizes
the revenues from his casinos as direct
"winnings," the fruit of a
skilled gambler and his employee-agents.
He argues that the term
"gain" does not include "winnings" and
is properly restricted to
indirect gains from charging of fees or
the sale of drinks and food in
gambling establishments - practices he
deliberately does not engage
in.
Reasons p28-30 [Court of Appeal]
25. As noted by the Court of Appeal, if
the Applicant is right, then
gambling provisions of the Criminal Code
would not restrict gambling
itself but only indirect gains from the
sale of food or parking
charges. The Court below accordingly declined
to read in the term
"indirect" next to "gain" as suggested
by the Applicant. IN doing so,
the Court followed the rule of statutory
construction as set out in R.
v. MacIntosh, [1995] 1 S.C.R. 686.
Reasons p29-30,32 [Court of Appeal]
26. While it is admitted that "gain" in
s.197(1)(a) has not been
decisively interpreted by the Supreme
Court of Canada, two cases from
this Honourable Court guided the Court
of Appeal's interpretation. In
both R. v. Rockert, [1978] 2.S.C.R. 704
and R. v. DiPietro, [1986]
1.S.C.R. 250, the Court suggested that
a common gaming house was one
conducted for a business purpose or for
profit. The Applicant's
operation clearly fell within this definition.
Therefore, not only is
there no case-law in conflict with the
statutory interpretation
advanced by the Court of Appeal, but the
interpretation advanced below
is consistent with jurisprudence from
this Honourable Court.
Reasons p30-32 [Court of Appeal]
27. Even if the Court of Appeal's interpretation
was found to be in
error, such an error would not raise an
issue of national importance.
With the widespread legalization of casinos
operating under government
supervision and open to the public, the
role of the gaming provisions
of the Criminal Code is likely to become
less significant.
See for instance:
Saskatchewan Gaming Corporation Act S.S.
1994 C S-18.2, s.2(b), 4
Ontario Casino Corporation Act, 1993,
S.O. 1993, C.25,
s.2(1),5(c),S.8(2)
Gaming Control Act. S.N.S. 1994-5, C.4,
s.3(b), 10(a), (b)
Act respecting the Regie des alcools,
des courses et des jeux, R.S.Q.
C. R-6.1, s.2, 23(4)
C. Sentence
28. The Respondent assumes that the Application
with respect to
sentence is made under s. 40 of the Supreme
Court Act. It is submitted
that the Applicant raises no new sentencing
principle that might
warrant this Honourable Court's attention
and might remove the
sentence imposed from the ambit of the
appellate deference already set
out in R. v. C.A.M., [1996] 1 S.C.R. 500.
Supreme Court Act R.S.C. 1985, c. s-26,
s.40(1)
29. It is also noted that the sentence
at issue is not a custodial
one, this further lessen any need for
this Honourable Court to
intervene. The performance of community
service of the type ordered in
this case will generally not produce undue
hardship that might, by
itself, raise an issue of national importance.
PART IV:
ORDER REQUESTED
30. That the application for leave to appeal
be dismissed and that
leave to appeal be denied.
31. The Respondent does not seek costs.
ALL OF WHICH IS RESPECTFULLY SUBMITTED BY:
Trevor Shaw
Of Counsel for the Respondent
Dated this 15th day of November 1996.