Di Pietro et al. v. The Queen

Lamer J.‑‑The two appellants were convicted by an Ontario Provincial Court judge in the district of York of keeping a common gaming house contrary to s. 185 of the Criminal Code . Their appeal to the Ontario Court of Appeal was dismissed and they were granted leave to appeal at large to this Court.

This case requires an analysis of s. 179(1) of the Code where "game" and "common gaming house" are defined and raises the issue whether the exemption of s. 188(1)(b) of the Code can apply to a charge of keeping a common gaming house.

Sections 179 and 185 read as follows:

179. (1)...

"common gaming house" means a place that is

(a) kept for gain to which persons resort for the purpose of playing games, or

(b) kept or used for the purpose of playing games

(i) in which a bank is kept by one or more but not all of 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;

"game" means a game of chance or mixed chance and skill;

185. (1) Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and is liable to imprisonment for two years.

(2) Every one who

(a) is found, without lawful excuse, in a common gaming house or common betting house, or

(b) as owner, landlord, lessor, tenant, occupier or agent, knowingly permits a place to be let or used for the purposes of a common gaming house or common betting house,

is guilty of an offence punishable on summary conviction.

At the time of the charge s. 188(1)(a) to (c) stated that:

188. (1) Sections 185 and 186 do not apply to

(a) any person or association by reason of his or their becoming the custodian or depository of any money, property or valuable thing staked, to be paid to

(i) the winner of a lawful race, sport, game or exercise,

(ii) the owner of a horse engaged in a lawful race, or

(iii) the winner of any bets between not more than ten individuals;

(b) a private bet between individuals not engaged in any way in the business of betting;

(c) bets made or records of bets made through the agency of a pari‑mutuel system only as hereinafter in this section provided, upon the race course of an association during the actual progress of a race meeting conducted by an association upon running, trotting or pacing horse races being run thereon and if the provisions of this section and any regulations made thereunder are complied with.

The Facts

The appellants are husband and wife and they conduct a business known as "Corrado Billiards" in Toronto. On the business premises there are several pool tables, pinball machines, a counter at which coffee, soft drinks, candy and cigarettes are sold, and four tables with sets of chairs at which customers can sit. There are two signs on the wall which read "No Gambling".

From November 4, 1980 to January 16, 1981 the premises were frequented by Constable Salvatore LoStracco of the Metropolitan Toronto Police Force who, on numerous occasions, observed men seated at the tables playing an Italian card game known as scalaforti. He further observed score sheets on the table where the game was being played and witnessed the appellants providing their customers with playing cards and score sheets. Constable LoStracco testified that scalaforti is a game that can be played for money or merely for amusement. After analysing the score sheets, he was of the opinion, but could not confirm the fact, that the players were betting $10 a game with a $2 penalty levied against any player who went over a set number of points.

On January 16, 1981 Constable LoStracco, along with others from the Metropolitan Toronto Police Force, entered the premises with a search warrant and seized decks of cards and score sheets from each of the four tables. The appellants were arrested and charged with keeping a common gaming house and a common betting house contrary to ss. 185 and 186 of the Criminal Code .

The Judgments

Provincial Court

Parker J. found that there was no betting taking place on the premises and as such, he acquitted the accused on the count of keeping a common betting house. The Crown did not appeal this verdict. The trial judge also found that although no money had changed hands among the players, the card games described included elements of both chance and skill; and that the premises on which these games were played were kept by the accused for gain in the sense that they profited from the sale of refreshments to the players. He concluded that once the element of chance is found, gaming is proved; and that the accused as keepers of the premises were therefore guilty of keeping a common gaming house.

Ontario Court of Appeal

The accused appealed their convictions for keeping a common gaming house. Martin J.A., in a unanimous judgment, found that both accused kept the place for gain: (1982), 1 C.C.C. (3d) 458. Unlike the trial judge, he said that the elements of skill and chance were not sufficient to constitute the offence of gaming. According to Martin J.A., wagering is an essential element of gaming and there must be proof that money or money's‑worth was exchanged among the players in order to sustain a conviction. In support of this proposition Martin J.A. referred to the decision of the Court of Appeal of Ontario in R. v. Irwin (1982), 1 C.C.C. (3d) 212, where Goodman J.A., speaking for Martin and Cory JJ.A., stated at p. 225:

It is not sufficient for the prosecution to prove only the elements required by the plain and literal meaning of the words of ss. 179(1) and 185(1) of the Criminal Code in order to obtain a conviction under s. 185(1), in the absence of proof of facts bringing into play the conclusive presumption provided for by s. 180(2). The prosecution must also prove that the participants in the game or operators of the game have a chance of both winning and losing money or money's‑worth by participating in a game of chance or mixed chance and skill.

Martin J.A. went on to say that the practice by which the loser would purchase refreshments for the others constituted such an exchange and, therefore, the element of wagering on the game of chance and skill was established. He stated, at p. 465:

It is clear, however, from the evidence of the appellant Corrado Di Pietro that it was the custom for the loser of the game to pay for the drinks and scores were kept for determining who was the loser. Thus, the participants in the game had a chance of winning and losing money or money's‑worth, which suffices to supply the necessary element of gaming. The minimal nature of the stakes, no doubt, goes to the seriousness of the offence, but all the elements of the offence were present.

He indicated that it did not matter that there was no evidence that the appellants charged a fee for the use of the cards or the tables. He pointed to s. 180(1)(b) of the Code which provides that, in the absence of evidence to the contrary, the fact that a place is found to be equipped with gaming equipment is proof that the place is a common gaming house. When coupled with the fact that the cards and score sheets provided by the appellants were in fact used for gaming, this evidence was held to be sufficient to uphold the conviction and Martin J.A. dismissed the appeal.

Issue

In their factum before this Court the appellants stated that the issue on appeal was whether the courts below had erred in law in failing to apply the exemption in s. 188(1)(b) of the Code on the facts as found in this case. Notwithstanding this statement, they also argued that the finding by the trial judge that gaming took place was in error. After a review of the relevant caselaw on gaming, the appellants argued that staking is an essential element of gaming and they claimed that the facts of the case at bar did not indicate that the players were at risk of winning or losing money or money's‑worth. Furthermore, even if they were, the amount wagered, the price of a cup of coffee, was too unsubstantial to constitute a real stake:

In the case at bar the practice was for the loser to pay for the winner's or winners' coffee. There would be at least one winner and one loser, and depending upon the score in the game and the rules agreed upon by the players, there could be one winner and three losers or possibly one loser and three winners.

Does the agreement between the players that the loser was to treat the winner or winners constitute the place a common gaming house? In any event the proprietor of the establishment will sell only four coffees no matter who pays for the coffee. Is it incumbent upon the vendors of the coffees to inquire of the purchaser as to the nature of the agreement between the players where one player proposes to treat the other players? Were the players at risk of losing in the sense they were obliged to hazard a stake on their part? Are the coffees a stake or a prize in the game? If the answer is "yes" that the coffees are a stake or prize it is submitted that it is not a `valuable thing' and that the possibility of winning a free coffee `was too unsubstantial in nature to constitute a real stake or prize' and that following R. v. Wilkes, supra, and R. v. Zippilli (1980), 54 CCC (2d) 481, the premises in question were not a common gaming house.

It was not until after they raised these important questions that the appellants commenced their argument with regard to the application of the exemption found in s. 188(1)(b) of the Code:

But even if this Honourable Court were to decide that the coffee was a real stake and to follow the reasons of Mr. Justice Martin in Di Pietro that the minimal nature of the stakes, no doubt, goes to the seriousness of the offence, but all the elements of the offence were present, it would still be left with the exemption in s. 188(1) (b) of the Criminal Code .

I would allow this appeal on the preliminary issue raised by the appellants, namely that no gaming occurred at Corrado Billiards. While Martin J.A. was, in my respectful view, correct in stating that a necessary element of the offence of gaming was the chance that the participants could stand to win or lose money or money's‑worth, I cannot agree with his characterization of the custom by which the loser pays for the drinks as meeting that requirement.

As this case can be disposed of without a discussion of the applicability of s. 188(1)(b) of the Code, I will not advance a concluded opinion on that issue. The courts below did not address it and without the benefit of their reasoning I would prefer to leave the resolution of this issue for another day. At the hearing in this Court, both parties argued their case on the assumption that the "private bet" exemption found in s. 188(1)(b) of the Code does apply to a charge of keeping a common gaming house, their disagreement being as regards the success of its application to the facts of the case at bar.

The Court subsequently invited counsel to address in writing the issue whether the exemption of s. 188(1)(b) applied to a charge of keeping a common gaming house and whether a wager by a participant in a game is a bet, as that term is meant in s. 188(1)(b). In written submissions both parties answered in the affirmative. Because of this request by the Court, I feel that, as a matter of courtesy, I should give some indication as to why I welcome another ground upon which I can dispose of this appeal. Indeed, despite the Crown's concession, the criteria advanced by the Crown for the exemption to succeed are such that the exemption could never have any practical application to a gaming house. After an extensive review of the legislative history of the gaming laws and of the exemption, one might seriously question whether Parliament ever intended the exemption to apply to a charge of keeping a common gaming house.

Furthermore, in order for the private bet exemption to apply, the wagers by the players would have to be considered as bets. This would blur the distinction between a betting and a gaming house. While I cannot visualize the exemption ever inuring to the benefit of an alleged keeper of a gaming house, I am concerned that, accepting that a wager by a participant in a game is a bet, as that term is meant in the definition of a betting house, would result in the further incrimination of gaming houses which are otherwise lawful. For example, while the mere keeping of a place for the purpose of playing games does not constitute the offence of keeping a common gaming house without proof of one of the additional elements found in subparas. (i) to (iv) of the definition of a gaming house, such behaviour would nearly always be punishable as keeping a common betting house! For these and other reasons I need not set out here, I think it preferable that this Court not make any definite pronouncement in the case as regards the availability of the exemption of s. 188(1)(b) to a charge of keeping a gaming house, nor as to whether a wager by a participant in a game is a bet. Now to address the other issue.

Section 185(1) of the Code makes it an offence to keep a common gaming house. According to the definition of a common gaming house found in s. 179(1), the constituent elements of the offence, are:

1. keeping a place;

2. for gain;

3. resorted to by persons for the purpose of playing games;

4. which games are games of chance or mixed chance and skill.

The first two elements of the offence are present as the appellants admitted that they are the proprietors of Corrado Billiards and that they profit from this undertaking. In assessing whether or not games were being played on the premises, in other words, whether the third and fourth criteria of the offence have been met, I agree with Goodman J.A. in his judgment in R. v. Irwin, supra, where he stated, at pp. 218‑19, that:

There is ... a substantial body of Canadian and English judicial authority to the effect that, in addition to the [four] elements listed above, the prosecution must establish that `gaming' took place in the sense of `wagering' on the part of the participants in a game either between the players themselves or the players and the person conducting or operating the game so that the participants in or operator of the game may win or lose money or money's‑worth depending on the outcome of the game of chance or mixed chance and skill.

Although the Criminal Code is silent as to the necessity of wagering on the outcome of the game by the players thereof in order to establish that gaming did take place, it has long been recognized by the common law that this is an essential element of gaming. As the early English statutes did not contain definitions of "gaming" and "common gaming house" the courts defined "gaming" as "playing a game for stakes hazarded by the players" (Eddy & Loewe, The New Law of Betting and Gaming (2nd ed. 1964)). For example, in R. v. Ashton (1852), 1 E. & B. 286, Lord Camp‑ bell C.J., with whom Coleridge, Wightman and Erle JJ. concurred, stated at p. 289:

The object of the statute was to prevent the contracting of bad habits by the practice of games, where money was staked, in public‑houses: if money were staked, that would be gaming; and then there might be a lawful conviction for allowing gaming in the house.

(Emphasis added.)

In 1903, in the case of Lockwood v. Cooper, [1903] 2 K.B. 428, Lord Alverstone C.J., speaking for Wills and Channell JJ., stated, at p. 431:

To amount to gaming the game played must involve the element of wagering‑‑that is to say, each of the players must have a chance of losing as well as of winning. To hold otherwise would be an unjustifiable straining of the Act.

That decision was referred to with approval by the English Court of Appeal in Ellesmere (Earl) v. Wallace, [1929] 2 Ch. 1, where the Master of the Rolls, Lord Hanworth, stated at p. 28, that:

...the interpretation to be given to `gaming' must be one that involves wagering or betting.

In 1930, in R. v. Wilkes (1930), 55 C.C.C. 1, the Ontario Court of Appeal followed the English courts and acknowledged that wagering was a necessary element of the offence of gaming.

The decision in Wilkes involved the interpretation of s. 226 of the Criminal Code , R.S.C. 1927, c. 36, whose definition of a common gaming house is substantially the same as the present definition found in s. 179(1) of the Code. As stated by Goodman J.A. at p. 221 of the report of his judgment in R. v. Irwin, supra, the Wilkes decision "was clearly based on common law principles applicable to the meaning of the words `gaming' and `common gaming houses' ".

When Wilkes was adopted by this Court in Roberts v. The King, [1931] S.C.R. 417, it became evident that in Canada, as in the United Kingdom, the element of wagering constituted part of the offence of gaming notwithstanding the silence of the Criminal Code as regards this element.

In 1960, the Parliament of the United Kingdom codified the common law definition of gaming in its enactment of s. 28(1) of the Betting and Gaming Act, 1960 (U.K.), c. 60. That provision stated that:

‘gaming’ means the playing of a game of chance for winnings in money or money's‑worth.

The case of McCollom v. Wrightson, [1968] A.C. 522, dealt with that statutory provision, renumbered as s. 55(1) in the statute of 1963. The House of Lords, in a unanimous decision, was of the view that the codification did not alter the existing common law. Lord Hodson, speaking for the rest of the Law Lords said at p. 528:

I am in entire agreement with the Lord Chief Justice and with Widgery and Waller JJ., the other members of the Divisional Court, that the introduction of the word `winnings' first in the Act of 1960 and then in the Act of 1963 has done nothing directly or by inference to alter the law as it previously existed, namely that `gaming' only takes place where there is the chance not only of winning but of losing; in other words where some stake has been hazarded.

Thus the McCollom case, even though dealing with the U.K. statute, is still a relevant reference for us in Canada.

The facts in that case are analogous to those in the case at bar, at least when one takes the facts as found by the trial judge as regards the absence of wagering of money at Corrado Billiards. The accused in McCollom advertised in local newspapers that there would be free games of bingo on Sundays. On three separate occasions members of the public did actually play bingo on the premises. No charge was made for cards; no stakes were hazarded by the participants; the distribution of the cards was not related to the purchase of drink, and the prizes were provided by management.

In the McCollom decision, the only issue that needed to be decided was whether the participants were gaming.

Lord Hodson, with whom Lords Reid, Morris of Borth‑Y‑Gest, Pearce and Upjohn agreed, found that there was no gaming. As there were no stakes being hazarded it was found that the participants did not have a chance of winning or losing money or money's‑worth. Lord Hodson said, at pp. 528‑29:

...in no sense can it properly be said here that by buying drinks or in some other way those who attended the parties purchased anything so as to be indirectly putting up any stake in connection with the bingo playing. By being attracted to the hotel no doubt they were induced to buy drinks but in no sense were they contributing to the prizes even if they bought drinks before play began. Moreover, there was, as Widgery J. pointed out, an express finding by the justices in the case stated that the distribution of tickets in the alleged gaming was not dependent upon or in any way related to the purchase of drink or anything else.

And then, in conclusion, at p. 529, he said:

It would be necessary in order to make an indirect benefit to the donor of a prize equivalent to a stake in the game that a contribution should be made or proffered before gaming begins. After the prize is won, money spent, which finds its way into the pockets of the donor of the prize, does not automatically become equivalent to a stake.

Goodman J.A., in R. v. Irwin, supra, cites McCollom at length and then states, at pp. 224‑25 that:

It is significant that the accused in the McCollom case was acquitted notwithstanding the fact that it was clear that the players were playing a game of chance for winnings in money or money's‑worth in accordance with the plain wording of the definition of ‘gaming’ contained in s. 55(1) of the Act of 1963. The decision rests on the basis that the players were not at risk of losing in the sense that they were not obliged to hazard any stake on their part. In my view, the fact that the definition of ‘game’ in s. 179(1) of the Criminal Code does not include the modifying words ‘for winnings in money or money's‑worth’ does not render inapplicable the decision of the House of Lords in McCollom to the offence of keeping a common gaming house as set forth in the provision of the Criminal Code . It seems clear its decision would have been the same even if those words had not been included in s. 55(1).

(Emphasis added.)

I agree with Goodman J.A. that the McCollom decision and the previous common law authorities should aid in interpreting s. 179(1) of the Code. The prosecution must prove, as an element of the offence of gaming, that the participants had the chance of both winning and losing money or money's‑worth. These possible outcomes must be a result, direct or indirect, of wagering or hazarding a stake prior to or during the game.

I now turn to the facts of the case at hand.

Given Judge Parker's findings of fact that no wagering took place at Corrado Billiards, the only fact upon which a finding of gaming can rest is Di Pietro's admission that it was customary for the loser to pay for the drinks. Martin J.A. was of the opinion that that custom was sufficient to fulfil the requirements laid down by Goodman J.A. in R. v. Irwin, supra, of having a chance to win money or money's‑worth.

The custom at Corrado Billiards for the loser of the games of scalaforti to purchase drinks at the end of the evening for the other participants of the games would not, in my view, be sufficient to constitute staking as defined by the common law. The trial judge found, as a question of fact, that no money changed hands among the players. They were not "putting up a stake" on the outcome of the game, but had merely, in a sense, found a convenient way for taking turns at who would purchase drinks which they would normally consume as part of the evening's amusement. The winners were not eligible to win any sort of prize, as the cups of coffee that were being consumed on the premises as part of the evening's entertainment would not qualify as such. The fact that someone else might pay for the coffee was not, in my respectful view, an indication that the participants were winning money or money's‑worth. People did not go to the Di Pietro's to win drinks but to play cards. Playing cards was not a means to an end, winning money or money's‑worth, but an end in itself. The whole evening of playing cards was more in the nature of amusement than in the nature of betting and gaming as defined by the common law and by the Criminal Code . I would therefore allow the appeal and enter an acquittal.