Majority
The judgment of Laskin C.J. and Martland, Pigeon, Dickson, Beetz, Estey and Pratte JJ. was delivered by
ESTEY J.
ESTEY J.—The Ontario Court of Appeal dismissed an appeal from the conviction of the appellants on a charge of keeping a common gaming house contrary to s. 185(1) of the Criminal Code. On the hearing of the appeal therefrom, the argument in this Court was limited to the question as to whether the interpretation of the term “common gaming house” by the Ontario Appeal Court was right in law, that Court having interpreted the term in such a way as to permit a conviction where the premises in question had been used by the accused on only one occasion. Put in its simplest term, the contention of the appellants was that a place could not be a common gaming house in the absence of evidence that it was “kept” or “used” frequently or in an habitual manner for purposes prohibited by the Criminal Code.
Section 179 of the Code defines a common gaming house as follows:
“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;
The facts are set out by Martin J.A., writing on behalf of the Court of Appeal, reported at (1976), 14 O.R. (2d) 604, and need not be repeated here.
The Courts in this country, and in dealing with similar statutes, the Courts in the United Kingdom, Australia and elsewhere, have interpreted the word “kept” as it is employed in subs, (a) of the definition as connoting frequent or habitual activ-
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ity. The evidence before the learned trial judge in these proceedings indicated a single use of the arena for gambling purposes. Consequently, the Crown, in this circumstance, has argued that the arena was a common gaming house within the meaning of that term as defined in subs, (b) above, that is, that the arena had been “kept or used” for the specified prohibited purposes.
Martin J.A., delivering judgment on behalf of the Court of Appeal, concluded that such a single use of the premises would suffice to bring the arena within the definition of a common gaming house so long as the gaming activities were “carried on in a place in the way of a business by those conducting such activities”. This is the crux of the interpretative exercise performed by the Court of Appeal and with which, with the greatest respect, I am unable to agree.
It must be conceded at once that if the second definition of common gaming house (subs. (b) above) were to be interpreted in isolation and not in tandem with subs. (a) above, such a construction would not be unreasonable. The definition has two parts, (a) and (b), the first of which defines a place “kept for gain”. In construing the word “used”, Martin J.A. referred to a decision of Salmond J. in Weathered v. Fitzgibbon[2]. It should be noted, however, that this decision was made in relation to a statute (The Gaming Act, 1908) which did not include an alternate provision comparable to the first part of the definition of a common gaming house, that is, a place kept for gain.
It is unreasonable, in my opinion, to import a business purpose test into the second definition in the face of the express words employed by Parliament in the immediately preceding portion of the definition which imports the closely related notion of gain. That requirement has for many years been interpreted loosely as “kept for business purposes” (vide R. v. James[3]; R. v. Hoeltje[4]. More importantly, other provisions in this part of the Criminal Code deal expressly with the offences of engaging
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in the business of betting or placing or agreeing to place bets on behalf of others. The interpretation of the word “use” by the Court below in effect creates a new offence of engaging in the business of gaming once the prohibited activities can be proven to have been localized to the degree necessary to meet the definition of the word “place” in the Code.
In addition, it should be observed that the Courts have held, even in the case of the “business offences”, that there must be a “course of conduct” amounting to the carrying on of a business in order to justify a conviction for engaging in the business of betting and that, for these purposes, an isolated act will not suffice (vide R. v. Hynes[5]).
In view of the first definition of a “common gaming house” in s. 179, and taking into account the specific offences related to engaging in business activities in this field, it is difficult to conclude that Parliament, in omitting any reference to “gain”, in the second or alternative definition of “common gaming house” could have intended that the meaning attributed to it by the Court of Appeal below should be imported into this part of the definition section.
The second proposition fundamental to the judgment of the Court of Appeal in interpreting the term “kept or used” as employed by Parliament in the definition of “common gaming house”, is that some meaning must be assigned to the word “used” other than that assigned to the word “kept” which, as we have already noted, has been interpreted by the Courts for many years as connoting an habitual or repeated act of gaming. Otherwise, there would have been no reason for Parliament to have employed both words in this alternative definition. The Court then concluded that “used” in contrast to “kept” indicated a single or isolated use of the premises for the prohibited purposes and, therefore, a single use would be sufficient to support a conviction. Such an analysis depends, of course, on a preliminary determination that the two words are referable to the same sort of activity and to the same class of actor. Turning
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back to the question as to whether or not “used” has been employed by the legislative draftsman in contradistinction to “kept” (which latter term is based in the context of repeated or habitual use), it is helpful to examine several related provisions of the Criminal Code which indicate that the words “kept” and “used” have different meanings apart altogether from plurality and singularity as assigned to them by the Court of Appeal below.
“Keeper”, in s. 179 of the Code, is defined so as to include a person who:
(a) is an owner or occupier of a place,
(b) assists or acts on behalf of an owner or occupier of a place,
(c) appears to be, or to assist or act on behalf of an owner or occupier of a place,
(d) has the care or management of a place, or
(e) uses a place permanently or temporarily, with or without the consent of the owner or occupier;
In R. v. Kerim[6], Martland J., speaking also for Ritchie and Cartwright JJ., held that a person may be convicted under what is now s. 185(1) only where there is “…some act of participation in the wrongful use of the place…” (at p. 131). The combined effect of the definition of “keeper” in s. 179, and the interpretation of the word “keeps” in s. 185(1), laid down in R. v. Kerim, supra, suggests that a place is “kept” by a person who allows others to use it for a prohibited purpose. It is observed that the definition of “keeper” employs the word “use” in connection with both the words “permanently” and “temporarily”. That construction is reinforced by s. 185(2)(b) which imposes a lesser liability on a “keeper” who does not himself participate in (that is, use the premises for) the illegal activities but merely “knowingly permits a place to be used” for the purposes of a common gaming house.
Conversely, the word “used” in the definition of a common gaming house is directed not at the person in control of the place who makes it available to others, but rather at the person conducting
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the forbidden activities, whether or not he is a “keeper” who keeps the place for the purposes condemned by s. 185(1). Accordingly, one should not compare “kept” and “used” in an attempt to find a difference in meaning based on frequency of use. The two words refer to different activities which in some cases are carried on by different persons. These words describe in their employment in connection with gaming activities, two separate and distinct roles, the one being partly active and partly passive (“kept”), and the other (“use”) being active.
It, therefore, follows in the interpretative sequence that a Court must next determine whether the word “used” employed in the above sense properly connotes either a single use or repeated, frequent, or habitual use.
The words “used” and “kept” have, when assigned the foregoing meanings, at least in some contexts, the same connotation in the sense of a requirement of a repeated action. The word “used”, on the other hand, may in some applications indicate a single use.
In the Oxford English Dictionary, “used” is defined as follows:
“That is or has been made use of; utilized.”
In ordinary speech, the past participle “used” employed with the present tense of the verb ‘to be’ indicates a repeated use; in contrast perhaps to the past and imperfect tenses. The definition of ‘common gaming house’ employs the former:
“…means a place that is…used for the purpose of playing games…”
Applying the dictionary terms mentioned, the word “used” might be replaced with “that is made use of”. The plain meaning in ordinary parlance requires a practice of so employing the premises, or at least a practice consisting of more than one use or occasion in order to qualify within the definition. In my view, the application of the definition to embrace the circumstances of this case would be to put an unnatural extension upon the simple language form used to describe the “place” which the accused must “keep” under s. 185(1) in order to constitute the offence.
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“common betting house” means a place that is opened, kept or used for the purposes of
(a) enabling, encouraging or assisting persons who resort thereto to bet between themselves or with the keeper, or
(b) enabling any person to receive, record, register, transmit or pay bets or to announce the results of betting.
It has been generally held by the Courts over the years that ‘resorting’ connotes habitual or frequent activity; vide Patterson v. The Queen[7], where the expression is discussed at p. 162 with reference to a ‘common bawdy house’. It is impossible to see how a place can be “used” (once) as a common betting house for certain purposes by persons who “resort thereto” (frequently or habitually). It is, of course, possible that the word “used” in the definition of a common betting house was intended to have a different meaning than the same word in the case of a common gaming house in the same subsection, but that surely is highly unlikely.
The second provision of the Criminal Code which reinforces the construction of ‘use’ as connoting frequent or habitual activity is the charging section of the Code, (s. 185) which, in express terms, makes it an offence not to ‘use’ a place, but rather provides that “everyone who keeps a common gaming house…”, which word ‘keeps’, on authority, as mentioned above, connotes frequent or habitual behaviour.
This conclusion as to the proper construction of the word “used” as employed in the definition of ‘common gaming house’ in s. 179 of the Code is further reinforced by an examination of the historical antecedents and development of the offences relating to disorderly houses. These offences are collectively dealt with in Part V of the Code. This task was ably carried out by the learned trial judge in the case at bar with refer-
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ence to common gaming houses, and it is sufficient in this regard to refer to that part of his reasons for judgment in which he discussed this point:
Historically, the keeping of a common gaming house was also a common or public nuisance, as distinct from a private nuisance, and as such was also an offence, indictable as a misdemeanour, at common law. Common gaming houses were said to be “detrimental to the public, as they promote cheating and other corrupt practices; and incite to idleness and avaricious ways of gaining property persons whose time might otherwise be employed for the good of the community.” Bac. Abr. Tit. “Nuisances” (4); 1 Hawk. c. 75, s. 6; Russell on Crime, 12th ed., vol. 2, p. 1442.
The authorities leave little, if any, doubt that the mischief to which these offences were directed was not the betting, gaming and prostitution per se, but rather the harm to the interests of the community in which such activities were carried on in a notorious and habitual manner. (Vide Jenks v. Turpin[8].)
A similar historical analysis of the offence of keeping a common bawdy house was carried out by Schroeder J.A. in R. v. Patterson[9], at p. 46 C.C.C., cited with approval by this Court on appeal [1968] S.C.R. 157 at p. 161:
Viewed in historical perspective the keeping of a brothel or a common bawdy-house was a common nuisance and, as such, was indictable as a misdemeanour at common law. It was treated as a public nuisance “not only in respect of its endangering the public peace by drawing together dissolute and debauched persons but also in respect of its apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness”: Russell on Crime, 12th ed., vol. 2, p. 1440. It consisted of maintaining a place to the disturbance of the neighbourhood or for purposes which were injurious to the public morals, health, convenience or safety. The maintenance of a nuisance of this character later became the subject of legislation in England in 1752 when the Disorderly Houses Act, 1752 (U.K.), c. 36, was enacted and the offence is now embraced (sic) in the provisions of the Sexual Offences Act, 1956 (U.K.), c. 69, s. 33, the English counterpart of s. 168 (1) (b), (h) and (i) of our Criminal Code.
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For these reasons, I would allow the appeal, set aside the conviction of the appellants, and direct the acquittal of the appellants.
The judgment of Ritchie and Spence JJ. was delivered by
SPENCE J. (dissenting)
SPENCE J. (dissenting)—This is an appeal, by leave, from the judgment of the Court of Appeal for Ontario pronounced on the 15th of September 1976 whereby that Court dismissed an appeal from the judgment of Cannon, Prov. Court Judge, convicting the four appellants upon a charge of keeping a common gaming house contrary to s. 185 of the Criminal Code.
The reasons of Martin J.A., giving judgment for the Court of Appeal for Ontario, are reported in (1976), 14 O.R. (2d) 604, and contain a complete recital of the agreed statement of facts which, therefore, need not be repeated here.
The single issue before the Court of Appeal for Ontario and this Court was whether a place could be found to be a common gaming house within the definition contained in s. 179(1) of the Criminal Code upon proof of the use of such place for the purpose of gaming on only one occasion. Neither in the Court of Appeal nor in this Court was any argument advanced that the accused were others than keepers if the place could be found to be a common gaming house within the section.
Section 179(1) of the Criminal Code defines “common bawdy-house” and “common gaming house” in these words:
“common bawdy-house” means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency;
“common betting house” means a place that is opened, kept or used for the purpose of
(a) enabling, encouraging or assisting persons who resort thereto to bet between themselves or with the keeper, or
(b) enabling any person to receive, record, register, transmit or pay bets or to announce the results of betting;
“common gaming house” means a place that is
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(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;
With respect, I am in complete agreement with the analysis of the effect of these definitions outlined so clearly by Martin J.A. in his reasons and I share his view that the requirement of frequent habitual use of the place before there could be a conviction for keeping a common bawdy-house as made by this Court in Patterson v. The Queen[10], does not apply to a prosecution for keeping a common gaming house. As Martin J.A. points out, the addition of the word “use” in para. (b) of the definition of “common gaming house” must be significant and its appearance as an alternative to “kept” may properly be interpreted as a legislative authorization of conviction without proof of the frequent or habitual use required by the words “kept” and “resort” in para. (a) of the definition of “common gaming house” and “kept” in para. (b) thereof or the words “kept” or “occupied” or “resorted to” in the definition of “common bawdy-house”.
Martin J.A. saw the danger that the interpretation of the word “use” as encompassing employment of the place on a single occasion might bring within the prohibition in the section the case of a few friends having a friendly game of say black jack and simply for convenience or because of his skill leaving one of them to act as banker. The learned justice on appeal took some encouragement from the words of Salmond J. in Weathered v. Fitzgibbon[11], where, interpreting the words
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“opened, kept or used” at p. 342, he repeated his own words from an earlier decision:
A man does not keep an illegal betting-house until and unless his betting transactions are so far generalized as to the persons with whom he bets, and so far localized as to the place where they are made, that he can properly be said to maintain a betting establishment—that is to say, to carry on the business of betting on premises which he owns, occupies, or keeps for that purpose.
I do not find it necessary to decide such an issue in dealing with the present appeal. As long ago as 1875, Lord Russell of Killowen when faced with such a situation said in R. v. Davies[12], at p. 202:
Those are in substance the facts of the case, and, looking to the purpose of the Act under which this prosecution is instituted, it is in my opinion monstrous to say that the case falls at all within the mischief or within the provisions of the statute, which was intended to prevent the user of a house as a gaming house.
However, as I have said, the issue does not arise in the present appeal. The accused were not friends engaged in a quiet game but were conducting a very business-like operation. Indeed, as Martin J.A. infers, the accused might have been carrying out the very operation that the legislators aimed at when they added the alternative word “used” to the word “kept” in para. (b) of the definition of common gaming house. The “floating crap game” is not a recent invention.
I would dismiss the appeal.
Appeal allowed, RITCHIE and SPENCE JJ., dissenting.
Solicitor for the appellants: B. Clive Bynoe, Toronto.
Solicitor for the respondent: Ministry of the Attorney General of Ontario, Toronto.
Footnotes
- [1] (1976), 14 O.R. (2d) 604.
- [2] [1925] N.Z.L.R. 331.
- [3] (1903), 7 C.C.C. 196 (Ont. C.A.).
- [4] (1932), 41 O.W.N. 69.
- [5] (1919), 31 C.C.C. 293.
- [6] [1963] S.C.R. 125.
- [7] [1968] S.C.R. 157.
- [8] (1864), 13 Q.B.D. 505.
- [9] [1967] 1 O.R. 429, 3 C.C.C. 39, revd. [1968] S.C.R. 157.
- [10] [1968] S.C.R. 157.
- [11] [1925] N.Z.L.R. 331.
- [12] [1897] 2 Q.B. 199.
Cases cited
- 14 O.R. (2d) 604 14 O.R. (2d) 604
- R. v. Kerim R. v. Kerim, supra
- Patterson v. The Queen scr-1968-157 p 161
Statutes and regulations cited
-
- s. 185(1)
- Section 179
- s. 179
- s. 185(2)(b)
- s. 179(1)
- s. 185
- s. 6
- s. 33
- s. 168
- Section 179(1)
-
Unresolved citations
- para. (b)
- para. (a)