ONTARIO PROVINCIAL COURT JUDGE FONTANA
April 3th 1989
Queen VS. Dave Booth
Judge James Fontana; P.C.J. (Orally) :
This is a motion for a directed verdict, inadvertently referred to by
counsel as a non-suit brought at the completion of the Crown's case
with respect to the charges brought against four individuals who are
charged with two counts, both on the 23rd of February, 1988.
Count number is that they were without lawful excuse in a
common gaming house, contrary to Section 185 ( 2) (a). A second count
that, on the same date, they were found without lawful excuse in a
common betting house at the same location, contrary to the same
section which, under the new numbering, is now Section 201 (2) (a).
The Crown's evidence was presented by essentially two witnesses. The
main Crown witness was Mr. John Turmel and the court finds itself in
the somewhat unusual position of having to rely, as a main Crown
witness, on the individual who arranged the game, if I may put it in
those words. I purposely do not use the word "keeper" because that
involves finding of law which in not yet made.
In this case before me, Mr. Turmel was the principal Crown witness. He
described a series of events in which he rented, for a period of time,
a room in the Bayshore Hotel on Carling Avenue in Ottawa. Rental was
by the month. The room in question was equipped with a certain minimal
amount of gambling apparatus for the playing of cards, including decks
of cards, a semi-circular green felt table, a shoe. Posters were
prominently displayed in the room setting out the rules of the game.
Mr. Turmel described the game as, "Atlantic Twenty-one" and throughout
the course of evidence, the examination and cross-examination,
reference was also made to the term "Black Jack". Although there may
be regional differences, the terms for our purposes were used
interchangeably. He described the game, as the dealer pushing cards to
the player from the shoe. The object being to come as close as
possible to 21 without going over, and he described the dealer playing
against the individual player, one player at a time. The rules of the
game, were that the dealer must hit on 16. That means that he must
take another card. There were a number of options open to the
individual players who may themselves take a hit: that is, take an
additional card. They may stand. They may double up, split, or
surrender. Players may make a "natural 21" or they may take out
insurance.
Judging from the manner from which the testimony was given from both
Mr. Turmel and Sergeant Durnel of the O.P.P., it would appear that
these are options and variations that are well known to the persons
who play these games. In the course of the testimony, the words
"banker" and "dealer" came to be used interchangeably as the person
dealing the cards from the shoe.
There were additional general rules which are, in my opinion, of
consequence in this case, the first being that anyone could be the
bank at any time. And attendant upon that, a player who wished to
enter the game must be the bank at least once before playing, and
that, presumably, was so, the individual would know how to be the
banker and deal from the shoe in order to exercise right and
opportunity to be the banker at any time.
Looking at it another way, it might be difficult to say that a person
had the opportunity available to him if he had no experience doing it.
So, that became as well one of the posted rules of the game. As Mr.
Turmel indicated in his testimony, any player could be the banker all
night as far as he was concerned.
Exhibit Seven was an example of the poster that was prominently posted
around the room. The evidence indicated that there were posters at
three locations in the room setting out these rules, including the
provision just referred to that anyone could bank the game at any
time.
As well Exhibit Number Seven were invitations which were sent out to
various parties and friends inviting them to attend a game or making
them aware of it. Indeed, it was part and parcel of what went on over
the month of February, 1988, that on approximately two possibly three,
occasions the police attended themselves to view the game.
The evidence from the principal witness was that refreshments were
available but there was no charge for them. Refreshments are
observable on a table in photograph Exhibit Three. There was no fee to
enter the game on the evidence of Mr. Turmel. There was no percentage
or "rake-off" by the house on the wagering that occurred. Mr. Turmel
testified that (and this was the subject of some additional
questioning by the court) if a player exercised his right to be a
dealer, then that person played against him, that is Mr. Turmel, and
not against the other players at the table. Those other players would
then go to another game which would be played with an agent of Mr.
Turmel at another table or perhaps play among themselves. Having
regard to the criteria and the definition set out in the definition
section,
I do not consider this to be a consequential element in determining
the lawfulness or the unlawfulness of the game. Essentially it is a
case of the dealer, whomever that person might be, playing with one
player at a time and the wagering is between the contestants only.
On the date in question, that is the material date, the 23rd of
February, 1988, the police arrived and observed Mr. Turmel playing
against Mr. Lo and Mr. Paleavarkis. The other two named accused
persons were at that time bystanders. Mr. Turmel was precise and
forthcoming in his testimony as a Crown witness and his testimony was
uncontroverted in cross-examination. There is no reason for this court
not to believe that testimony with regard to the game as described by
Mr. Turmel.
The testimony of Mr. Turmel and Sergeant Durnel of the O.P.P was
interesting in that they were both, for the purposes of the trial,
qualified as experts although in my view, that was probably not
entirely necessary in this case since they were both really testifying
as to very factual considerations having to do with the way the game
was played or the way that Twenty-one is played generally; and Mr.
Turmel testified as to the precise course of conduct on the night in
question, and Sergeant Durnel confirming many of the things which Mr.
Turmel had to say about how the game Twenty-one is played.
The expertise, of course, extends for the purpose of venturing an
opinion with respect to certain areas that are not provable factually.
That had to do with the question of advantage to the dealer. And that,
of course, brings us to the charges themselves and, in particular
count number one which is the count under Section 201(2)(a). One must
necessarily, refer to the definition section, the new Section 197(1),
where "common gaming house" is defined, and it is defined in five
ways.
On the evidence alleged by the Crown, and accepting the testimony
presented on behalf of the Crown by Mr. Turmel, the operation in this
occasion clearly does not fall into the first four categories. That
is: a place kept for gain or for playing games where the bank is kept
by one or more but not all of the players; where there is a rake-off
to the house as is mentioned in subsection two; or where there is a
fee charged. Clearly, none of those first four criteria apply. If the
operation on this occasion is to be caught, it must be caught with
respect to sub-subsection four which I quote:
"Kept or used for purposes of playing games 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."
I have examined the testimony given by both Mr. Turmel and Sergeant
Durnel in their capacity as experts. As I have pointed out before,
their testimony is remarkable coincident. Indeed, it was difficult for
me to find any area in which they really disagreed. The upshot of that
testimony was that although it was very difficult to arrive at a firm
conclusion by reason of the fact that there are subtle variations from
game to game and regional variations, there is an advantage to the
dealer, the person who was dealing the cards in Twenty-one, of
approximately 5.9 percent. It is not a great advantage, but an
advantage nevertheless. Now that takes into account certain basic
rules of the game. Mention was made by both witnesses as to the
acknowledged authority with respect to these matters, who is the
writer John Scarnes, whose test is referred to.
I point out for these purposes that the opinions offered by both
witnesses were, not unexpectedly, guarded, but again, they were
coincident in that regard. The decision in Regina v. Munroe, 1971,
C.C.C. 2nd, page 68, is a decision of the British Columbia Court of
Appeal by Mr. Justice of Appeal Taggart who was confronted with a not
dissimilar situation. I am attracted to a passage on page 73 of that
decision where Mr. Justice Taggart says as follows:
"After reviewing a number of decision, from the foregoing decision, it
appears to me that mere possession of the fund which constitutes the
bank does not render the possessor the keeper of a common gaming
house. Two other elements appear to be required. The first of these is
that the possession of the bank must confer on the banker some
advantage over the other players in the game. The second element is
that the rules of the game preclude some or all of the players from
having an equal opportunity to become a banker."
He goes on referring to his own fact situation.
"Applying the foregoing case to that at bar, it seems clear on the
evidence of Mr. Nash that the banker\dealer derived no advantage over
the other players by reason of his position. And from the evidence of
those participating in the game, it seems clear that the rules
provided for the changing of the bank dealer, in the event that a
player "tapped" the bank, the opportunity to do so was available to
all players equally."
That, in my opinion, is precisely the situation that I have here
before me today, as testified to by Mr. Turmel, and as evidenced by
the posters on the wall and the general evidence. While there was a
small advantage to the banker\dealer, nevertheless that opportunity to
be the banker \dealer was available to all players who participated in
the game.
I drew emphasis to the words of Mr. Justice Taggart, "advantage over
other players by reason of his position", because the position being
referred to there is the advantage derived from his position as
banker\dealer, not by his qualifications or capacity as to his own
personal skill. It may be that a person who more frequently finds
himself in the position of banker plays more and develops greater
skill. That is not what is being discussed here. The advantage that is
derived to an individual by reason of his own skill and in playing the
game, in no way confers an unfair advantage as contemplated by the
Section.
Count two in this information again requires consideration. That
charge laid under 185 (2) (a), now Section 201 (2) (a), is somewhat
different. The first question that comes to mind is, is there a
distinction between the two, and if so, what is that distinction? The
Ontario Court of Appeal decision in Regina v. Puscov, Marbella and
D'Amour, decided in 1979, a decision of Weatherston, Justice of
Appeal, makes the point at page 508. I am referring to the decision as
it is reported, 1979, Vol. 45, C.C.C., 2nd, page 504. Mr. Justice
Weatherston, at page 508 - makes it clear:
"That keeping a common gaming house and keeping a common betting house
are distinct offenses. they are in no way, synonymous."
Of course, one would be attracted to that view initially by the very
fact that Parliament saw fit to pass two separate sections. He makes
reference to the decision of Ball v The Queen, 1957, 118 C.C.C., 361,
and a lengthy passage there, in which he quotes the Ball case at page
361:
"Reference to the definitions of common betting house and common
gaming house, contained in Section (then Section) 168, leads me to the
same conclusion as our court came to in Lewis v. The King, that the
finding of playing cards does not constitute prima facie evidence that
the place is a common betting house."
And he develops that to deal with the particular point upon which that
case turned, which is the exception, as it is sometimes referred to,
which is now part of new Section 204 of the Criminal Code. Section 204
of the Criminal Code contains a number of exceptions to which Sections
201 and 202 - the precursor being Section 187 - do not apply. Among
those, Section 204 (1) (b) makes an exception of a private bet between
individuals not engaged in any way in the business of betting.
I am then drawn back to the testimony given by Mr. Turmel, which
testimony is uncontradicted an he is the Crown witness. That is,
essentially. that no matter how many people there were at the table,
the dealer played against one individual. When the outcome of that was
known, he played the next individual and so on. So that, while one
might say that there were parallel games going on, that is as between
the dealer and several players, the outcome was completed with the one
player before the dealer went on to play the next player. That, in my
opinion, falls within that provision as private bets between
individuals.
One is tempted at this point to analogize and say, what is the
difference between one person dealing to one individual in a room and
having a game between the two of them, or one individual dealing to
five people in a room playing them sequentially and individually?
There is really no difference.
So, for that reason, the motion is to granted, the premises not having
been made out to be either a gaming house or a betting house, an the
charge will be dismissed.
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