McGarey v. R., [1974] SCR 278

Supreme Court of Canada

McGarey v. R., [1974] S.C.R. 278

Date: 1972-05-01

Richard McGarey (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1972: Februay 29; 1972: May 1.

Present: Chief Justice Fauteux and Martland, Judson, Hall, and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Game—Cheating—Milk bottle toss at fair—Three bottles similar in appearance—Heavier bottles at bottom of pyramid—No indication of varying weights—Difficulty of knocking them over—Whether “game of skill”—Whether fraudulent intent—Criminal Code, R.S.C. 1953-54 (Can.), c. 51, ss. 168 (1)(f), 181.

The appellant operated a game known as the milk bottle toss at a fair. To play this game, the player throws a ball at three metalic bottles so arranged on a platform as to form a pyramid, and tries to knock down all three bottles. The bottles were all similar in appearance but the two bottles at the foot of the pyramid were much heavier than the one on top. The appellant was convicted of cheating while playing a game with intent to defraud, contrary to s. 181 of the Criminal Code. The conviction was affirmed by the Court of Appeal. He was granted leave to appeal to this Court.

Held: The appeal should be dismissed.

If the game of bottle toss had been what it appeared to be to the patron, it would have been a game of pure skill. But, by the device of making the two bottles on the lower layer of the pyramid heavier than the upper bottle, the operator turned a game of pure skill into a game of mixed skill and chance. It is by the use of bottles varying so markedly in weight that the game of skill which appeared to face the patron was changed to a game of mixed skill and chance. The weighing of the bottles would have constituted the addition of a requirement for a higher degree of skill if the varying weights of the three bottles had been plainly indicated thereon. In the present case the intent of the accused was not only to induce a state of mind in the player but to induce a course of action by the instilling of that state of mind. The trial judge was therefore correct in finding that the accused had the

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intention to defraud. The weighing of the bottles, without knowledge of the patron, constituted cheating.

APPEAL from a judgment of the Court of Appeal for Ontario, affirming the conviction of the appellant. Appeal dismissed.

H.E. Stafford, Q.C., for the appellant.

Ian Cartwright, for the respondent.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal by leave of this Court from the judgment of the Court of Appeal for Ontario pronounced on May 17, 1971. In that judgment the Court of Appeal for Ontario dismissed the appeal from the conviction of the appellant by the Provincial Court Judge on December 10, 1970, upon the charge that

Richard McGarey you are charged that on or about the 9th day of May in the year 1970 at the town of Ajax in the County and Province of Ontario you unlawfully did with intent to defraud one Barry Nolan, cheat while playing a game to wit: milk bottle toss contrary to S. 181 of the Criminal Code of Canada.

Section 181 of the Criminal Code of Canada (now R.S.C. 1970, c. C-74, s. 192) provides

Every one who, with intent to defraud any person, cheats while playing a game or in holding the stakes for a game or in betting is guilty of an indictable offence and is liable to imprisonment for two years.

The appellant as an employee of one Watson was operating at a Canadian Legion fair in the town of Ajax a game known as the milk bottle toss. The complainant Constable Nolan attended the fair upon the instructions of his superiors and was watching this milk bottle toss when he was solicited by the accused to play the game. He did so throwing four balls and paying a total

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of 75c being at the regular rate of 25c for the first throw and then 50c for the next three throws.

Milk bottle toss was played on this occasion as follows: Three metallic bottles were arranged on a platform, the platform being about 1½ inches off the ground with two bottles set side by side some little distance apart and the third bottle set on the top of the two to form the apex of the pyramid. The player stood about 8½ feet to 10 feet away from this pyramid of bottles which all had exactly similar appearance and threw a ball much like the softball used in baseball at the pyramid in an attempt to knock down all three bottles. Should the player be successful in doing so he was awarded a prize which was said to be of a value of $2.75. As I have said the bottles were all similar in appearance but that appearance was deceptive. The bottle which sat on top of the two others at the apex of the pyramid weighted a little less than 3 lbs. The actual one used in the game which the constable played was 2 lb. 15 oz. The two bottles at the foot of the pyramid and upon which the light bottle rested were very much heavier, in this particular case 8 lb. 7 oz. and a similar variation of weight appeared in the other two game setups standing one on either side of the one actually used by the constable. The constable on his first throw struck the right hand lower bottle and the top bottle, both of which fell but the left hand lower bottle remained standing and on a second throw he missed the pyramid entirely. On a third throw he missed the actual pyramid and struck the base. In both these throws of course no bottles fell. On the fourth and final throw the constable knocked off the top bottle and left the two bottom bottles standing. The constable called for other members of the police force. The accused man was arrested and charged. After a trial the learned Provincial Court Judge registered a conviction and gave one year’s suspended sentence to the appellant. The appellant appealed to the Court of Appeal for Ontario and his appeal was dismissed without written reasons. The appellant then by leave appealed to this Court. The appellant took four

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grounds of appeal in his argument to the Court. These grounds are as follows:

(1) That no offence was committed by the Appellant in view of the evidence that Constable Nolan played the bottle toss as a result of receiving certain information and instructions from persons other than the Appellant.

(2) That the bottle toss is a game of skill and not a game as contemplated by s. 181 and defined by s. 168 (1) (f) of the Criminal Code.

(3) That the Appellant was not actually “playing a game” in accordance with the wording of s. 181 of the Criminal Code.

(4) That the placing of the two heavier bottles on the bottom of the pyramid merely had the effect of raising the degree of skill necessary to win and did not constitute a fraudulent intent to obtain money from Constable Nolan by a deceitful practice while playing a game.

It is my intention to deal with these grounds seriatim. Firstly, the appellant submits that due to the fact that Constable Nolan went to this fair on instructions to watch this game and to play it that the representation made by the appellant had no bearing on the constable engaging in the milk bottle toss. I think this submission is answered completely by consideration of the words of the Section creating the offence “Every one who, with intent to defraud any person, cheats”. It is the intent of the accused not the intent of the victim which is the issue under the Section. The accused had no knowledge that Constable Nolan had attended and played the game upon instructions from his superiors. So far as he was aware Constable Nolan was simply another member of the public who could be induced to spend his money in playing this game and the accused with the intent to obtain money from the person who turned out to be Constable Nolan did induce that person to pay money and to play the game. The second ground of appeal is that the bottle toss game was a game of skill and therefore not a game as contemplated by s. 181 and defined by s. 168 (1) (f) of the Criminal Code. The latter

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subsection defines “game” for the purpose of Part 5 of the Criminal Code to be:

“game” means a game of chance or mixed chance and skill

I am ready to agree with counsel for the appellant that if the game of bottle toss had been what it appeared to be to the patron who stepped up to the booth, paid his fee and engaged in the game, it would have been a game of pure skill. With the exception that the bottle was thrown rather than rolled, it much resembles a game of bowls. Of course, the bowl rolled by the player down the alley would not hit all of the pins whether there were five or ten. In fact, to do so would have been impossible. Yet the skill of the bowler very frequently causes all the pins to fall. This results from what bowlers term the “action” when one pin hit by the bowl is thrown against another pin and that pin against a third or fourth or fifth, resulting in all of them falling. So, to outward appearance, the player of this game of milk bottle toss could count on the “action” between three bottles alone which composed the “set up” to cause all of the bottles to fall despite the fact that only one of the bottles had been hit by the bell. The difficulty which the appellant faces and with which I shall deal later when I discuss the fourth ground of appeal was that this was not a situation which the patron faced. The two bottles on the lower layer of the pyramid were many times heavier than the upper bottle. Therefore, there could not be the “action” upon which a bowler was entitled to rely and upon which the player in this game was entitled, judging by all appearances, to rely, so that all the bottles would be knocked down if only one bottle were struck, whether that bottle were the one on the top of the pyramid or either one on the base of the pyramid. Therefore, by this device, the operator, the employer of the accused, had turned a game of pure skill into a game of mixed skill and chance. A lucky hit between the two lower bottles might knock down all three bottles, but such a hit would be no more skilful than one which struck the outer edge of either of the lower bottles and which, if they were evenly weighted, would have caused

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inevitably the “action” resulting in all three of the bottle falling. In Ross, Banks and Dyson v. The Queen[1], Pigeon J. said at p.791:

However, when the statute speaks of chance as opposed to skill, it is clear that it contemplates not the unpredictables that may occasionally defeat skill but the systematic resort to chance involved in many games such as the throw of dice, the deal of cards.

It is by the use of bottles varying so markedly in weight that the game of skill which appeared to face the patron was changed to a game of mixed skill and chance and, in fact, the chance all weighed against the patron.

As its third ground the appellant submits that he was not actually playing the game and that the only player was Nolan. In his Factum the counsel for the appellant describes the appellant’s act as being mere passive presence while the game was being played. I am of the opinion that the circumstances do not support such a contention. It was the accused who solicited the constable to engage in the game. It was the accused who collected the constable’s money when he paid the required fee. It was the accused who was in charge of the placing of the bottles in the three-bottle pyramid and it was the accused who would have had to part with a prize had the constable been so fortunate as to knock down the three bottles. In my view the accused was an active participant not a mere passive bystander.

The fourth ground of appeal submitted by the counsel for the appellant that the placing of the two heavier bottles on the bottom of the pyramid merely had the effect of raising the degree of skill necessary to win and did not constitute a fraudulent intent to obtain money from Constable Nolan by a deceitful practise while playing a game, I have already dealt with in part. In

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my opinion, the placing of the heavy bottles in such a fashion did much more than constitute the addition of a requirement for a higher degree of skill. That would have been so if the varying weight of the three bottles had been plainly indicated thereon. When the weights were not so indicated, as I have pointed out, the game of pure skill had added to it, or to put it another way, built into it an element of chance and in fact a very unlikely chance. Did this weighing of the bottles without knowledge of the patron constitute cheating? Again reference should be made to the actual words of the section under which the appellant was charged “Every one who, with intent to defraud any person, cheats”. The intention to defraud was dealt with in the Court of Queen’s Bench, Appeal Side of the Province of Quebec in Re Rosen[2]. There Martin J. giving the majority judgment of the Court was dealing with a game of three card Monte and at page 382 said:

The gist of the offence here charged is cheating that is to say, perpetrating some fraud or ill-practice of making use of some unlawful device in the act of playing.

The offence is cheating with intent to defraud and defrauding is dealt with by Buckley J. in Re London & Globe Finance Corporation, Ltd.[3]:

To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.

Although such a statement was obiter it has received wide acceptance as being the distinction between deceiving and defrauding. In the present case the intent of the accused was not only to induce a state of mind in the player but to induce a course of action by the instilling of

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that state of mind and I am of the opinion that the learned Provincial Judge therefore was correct in finding the accused had the intention to defraud. Then the question arises whether the accused did cheat. I have quoted supra Martin J.’s definition of cheating in Re Rosen, the “perpetrating of a fraud or ill-practice or making use of some unlawful device.” Here the accused man caused three metallic bottles exactly similar in appearance to be arranged so that the two which were much heavier sat on the bottom and the light bottle on the top. The appearance of this pyramid was such that anyone would believe that it would be very easy to knock over these three bottles. One witness Slavnick said that if all the bottles were the same weight and if they were all light the operator could not stay in business as a four year-old child could knock them over. That was however, the exact visual impression given to any prospective player of the game as he looked at the pyramid and it was that visual impression which induced the prospective player to play the game. That was the “perpetrating of the fraud or ill-practice” to use again the words of Martin J. It was this feature which the learned Provincial Court Judge stressed in his reasons for judgment when he said:

The cogent matter is what they [a tremendous lot of young people] believe and what they are not told. I think the average youngster takes a look at those dozen bottles and they would say—without examining them because they don’t get that opportunity—they would say they were all the same… In reality they are not the same. If there were a sign or some advertisement on these bottles saying this one is several times heavier than this one, or if it were posted up on a board so the public knew what they were doing, there would be no fraud.

The learned Provincial Court Judge found that the like appearance of bottles which in fact were varied very markedly in weight constituted a deceit and that the deceit was intended to induce the player to part with his money and that therefore the operator did cheat the player. For these reasons I would dismiss the appeal.

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Appeal dismissed.

Solicitor for the appellant: H.E. Stafford,St. Thomas.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.