Laphkas v. The King

J.-The appellant was convicted by the Recorder of the city of Montreal, of having on the 28th day of March, 1941, illegally kept a common gaming house at number 2060 Bleury street, Montreal.

The judgment was upheld by the Court of King's Bench, appeal side, province of Quebec, and the appellant on application to a judge of the Supreme Court of Canada, under the provisions of section 1025 of the Criminal Code, was granted leave to appeal to this Court, the judgment of the Court of King's Bench, appeal side, province of Quebec, being in conflict with a judgment of the Court of Appeal of Ontario (Rex v. Levine (3)).

The record reveals that the accused had in his premises an automatic slot machine for the amusement of the public, known under the name of " Evans Ten-Strike Miniature Bowling ". It is put in motion by placing a large five cent piece in a slide, which, under the pressure of the operator, establishes an electrical current in the machine. A ball is LAuHs then released, and a mechanical player receives it coming THE from a wooden chute and automatically holds it in its hand. T - The operator places the player in the desired position, and Tashereau J.then pushes a button which releases the ball that strikes the pins at the other end of the alley. The number of pins knocked down by the ball is registered after every two plays, and automatically the pins are placed in front of the player who repeats the same operation five times, playing with two balls each time. The machine adds the total number of the pins knocked down during the game and indicates the final score.

The skill of the operator in aiming at the pins is the determining factor of the success of the operation; and it, is clear from the evidence and the examination of the machine itself produced as an exhibit in the case, that in the playing of the game there is no element of chance, or mixed elements of chance and skill. A skilful operator will obtain far better results.

The relevant sections of the Criminal Code are the following:- 226. A common gaming house is- (a) a house, room or place kept by any person for gain, to which persons resort to for the purpose of playing at any game of chance, or at any mixed game of chance and skill.

229. Every one is guilty of an indiotable offence and liable to one year's imprisonment who keeps any disorderly house, that is to say, any common bawdy-house, common gaming-house, or common betting-house, as hereinbefore defined.

There can be no doubt that under these two sections, the appellant operating or keeping in his premises this innocent machine for the amusement of the public could not be convicted.

(Roberts v. The King (1)).

But the respondent relies on section 986, paragraph 4 of the Criminal Code as amended in 1938, chap. 44, section 46, and which reads as follows:- 4. Slot machines.-In any prosecution under section two hundred and twenty-nine any automatic or slot machine used or intended to be used for any purpose other than for vending merchandise or services shall, and any such machine used or intended to be used for vending merchandise shall, if the result of one of any number of operations of it is, as regards the operator, a matter of chance or uncertainty or if as a consequence of any given number of successive operations it yields different results to (1) [19311 S.C.R. 417.

It is in virtue of this subsection that the appellant has been convicted.

The Court of King's Bench, appeal side, province of Quebec, had dealt with similar cases since the amendment of 1938, and relied upon its former decisions to dismiss the appeal in the present case.

In Rex v. Perlick (1), the court of appeal had to consider a "Target Skill" which was alleged to be useful in developing revolver shooting. The court reached the conclusion that under section 986 (4) of the Criminal Code, this apparatus not being used or intended to be used for the vending either of merchandise or services was illegal, and that its possession created an irrebuttable presumption that the place where such a machine was kept was a common gaming house. It also held that the shooting at a stationary target which affords no return other than amusement, may not be called a "service" within the meaning of section 986, paragraph 4, Cr. C.

In that case, Mr. Justice Hall said:- In Rex v. Granda (2), the same court dealing with a Pin Ball Slot Machine expressed identical views.

The Court of Appeal of Saskatchewan, in Rex v. Collins (3), had then already given its decision as to the legality or illegality of this Pin Ball Slot Machine.

Although it dismissed the appeal on the ground that this machine was a game of chance yielding Collins a gain, it expressed views as to the interpretation of section 986, paragraph 4, Cr. C., which were adopted by the court of appeal of Quebec. The result of the above pronouncements and of the judgment of the court of appeal of Quebec, now before this Court, is that section 986, paragraph 4, of the Criminal Code.declares all slot machines vending amusements illegal, and that there is an irrebuttable presumption that a room or place where such a machine is found is a common gaming house.

J

With the greatest respect, I cannot agree with these judgments, and I believe that the opposite views adopted by the Court of Appeal of Ontario in Rex v. Levine (1) should be upheld.

In the present case, we have to deal with a machine that provides a harmless amusement to the operator, and I believe that for the purpose of determining this case the word "services" includes "amusement".

This word must not be given the narrow interpretation that some courts have attempted to give to it, and its meaning must not be limited to cover only certain necessaries of life like lavatories and telephones. If such an interpretation were accepted, it would then be a criminal act, for instance, to keep in a hotel or a restaurant a gramophone reproducing music or vocal sounds after a five cent piece has been deposited in a slot. I am satisfied that this is not the letter nor the spirit of the law. This recording machine, and the one seized in the present case, do sell "services", in the sense that they furnish innocent recreation for the benefit and advantage of the public.

I fully agree with the interpretation given by the Chief Justice of Ontario in the Levine case (2):- This machine selling services is excluded from the application of the Act, and is not the kind of a machine which is the object of the new enactment, and the possession of which creates the " irrebuttable presumption " which is found in the amendment.

It is necessary, however, to add, as the Chief Justice of Ontario has pointed out, that certain machines vending merchandise and services may be illegal if for instance