Supreme Court of Canada
Ross, Banks and Dyson v. R., [1968] S.C.R. 786
Date: 1968-06-24
Leo Ross, George
Banks and Floyd Dyson (Plaintiff) Appellants;
and
Her Majesty the
Queen (Defendant) Respondent.
1968: March 25, 26; 1968: June: 24.
Present: Cartwright C.J. and Judson,
Ritchie, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Criminal law—Common gaming house—Accused
officers of unincorporated bridge and social club—Bridge players charged a fee
for playing—Whether bridge a game of skill or of chance or of mixed chance and
skill—Criminal Code, 1953-54 (Can.), c. 51, ss. 168(l)(f), 176(1).
The appellants, who were officers of an
unincorporated bridge and social club, were convicted of unlawfully keeping a
common gaming house, contrary to s. 176(1) of the Criminal Code. The
game played was bridge; and fees were charged to the players. The Court of
Appeal upheld the conviction and ruled that bridge was a game of mixed chance
and skill. The appellants obtained leave to appeal to this Court where the
question raised was as to whether there was any evidence upon which the Court
of Appeal could find that the game of bridge was a game within the definition
of “game” in s. 168(1)(f) of the Criminal Code.
Held (Spence
J. dissenting): The appeal should be dismissed.
Per Cartwright
C.J. and Judson, Ritchie and Pigeon JJ.: Bridge is a game containing an element
of chance and an element of skill and is, therefore, a “game” within the
meaning of s. 168(1)(f) of the Code. It was clear that Parliament
intended to avoid the uncertainties involved in determining what is the
dominant element and deliberately chose to include in the definition of “game”
all mixed games as well as games of chance.
Per Spence J.,
dissenting: In the game of bridge the only chance involved is the chance
in the dealing of the cards. The element of skill predominates in the playing
of the game. On that basis, the game of bridge is not a game of chance or mixed
chance and skill. The predominance of skill indicates that it should not be
considered as being within the words of the statute “a game of mixed chance and
skill”.
[Page 787]
Droit criminel—Maison de jeu—Dirigeants d’un
club de bridge non constitué en corporation accusés d’avoir tenu une maison de
jeu—Les joueurs de bridge tenus de payer pour jouer—Le bridge est-il un jeu
d’adresse ou de hasard ou un jeu où se mêlent le hasard et l’adresse—Code
criminel, 1953-54 (Can.), c. 51, art. 168(l)(f), 176(1).
Les appelants, qui étaient des dirigeants d’un
club de bridge non constitué en corporation, ont été déclarés coupables d’avoir
tenu illégalement une maison de jeu, contrairement à l’art. 176(1) du Code
criminel. Le jeu en question était le bridge; et les joueurs devaient payer
pour le privilège de jouer. La Cour d’appel a maintenu la déclaration de
culpabilité et a statué que le bridge est un jeu où se mêlent le hasard et
l’adresse. Les appelants ont obtenu la permission d’appeler à cette Cour où la
question soulevée a été de savoir s’il y avait une preuve en vertu de laquelle
la Cour d’appel pouvait déclarer que le jeu de bridge est un jeu selon la
définition du mot «jeu» de l’art. 168(1) (f) du Code criminel.
Arrêt: L’appel doit
être rejeté, le Juge Spence étant dissident.
Le Juge en Chef
Cartwright et les Juges Judson, Ritchie et Pigeon: Le bridge est un jeu qui
comporte un élément de hasard et un élément d’adresse et il est, en
conséquence, un «jeu» au sens de l’art. 168(1) (f) du Code. Il est clair
que le Parlement voulait éviter les incertitudes qui se présentent lorsqu’il
s’agit de déterminer quel est l’élément dominant et a délibérément choisi
d’inclure dans la définition de «jeu» au même titre que les jeux de hasard tous
ceux où se mêlent le hasard et l’adresse.
Le Juge Spence, dissident:
Le seul élément de hasard dans le jeu de bridge se trouve dans la
distribution des cartes. C’est l’élément d’adresse qui prédomine dans le jeu de
bridge. Par conséquent, le jeu de bridge n’est pas un jeu de hasard ni un jeu
où se mêlent le hasard et l’adresse. Le fait que l’adresse prédomine montre
bien qu’il ne doit pas être considéré comme compris dans le sens des mots du
statut «un jeu où se mêlent le hasard et l’adresse».
APPEL d’un jugement de la Cour d’appel de
l’Ontario, confirmant la déclaration de culpabilité des trois appelants. Appel rejeté, le Juge Spence étant dissident.
APPEAL from the judgment of the Court of
Appeal for Ontario1, affirming the appellants’ conviction. Appeal
dismissed, Spence J. dissenting.
G. Arthur Martin, Q.C., for the
appellants.
Clay M. Powell, for the respondent.
The judgment of Cartwright C.J. and Judson,
Ritchie and Pigeon JJ. was delivered by
[Page 788]
PIGEON J.:—The appellants have been convicted on
the charge of keeping “a common gaming house”. The agreed statement of facts
shows that they were officers of an unincorporated bridge and social club. The
game played was bridge and the players were charged for playing it the
following fees:
For one pivot, which is the equivalent of
three rubbers, the charge of $1.00; for more than one pivot but less than two
pivots, the charge of $1.25; for two complete pivots, a charge of $1.50; for
more than two pivots but less than three pivots, a charge of $1.75; and for
three pivots or more, a maximum charge of $2.00.
The question raised on the appeal is the
following:
Was there any evidence upon which the Court
of Appeal for Ontario could find that the game of bridge was a “game” within
the definition of “game” in section 168(1) (f) of the Criminal
Code?
The following provisions of s. 168 of the Criminal
Code should be considered:
168. (1) In this Part,
* * *
(d) “common gaming house”
means a place that is
(i) kept for gain to which persons resort
for the purpose of playing games; or
(ii) kept or used for the purpose of
playing games
(A) in which a bank is kept by one or more
but not all of the players,
(B) 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,
(C) in which, directly or indirectly, a fee
is charged by the players for the privilege of playing or participating in a
game or using gaming equipment, or
(D) 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;
* * *
(f) “game” means a game of chance or
mixed chance and skill;
* * *
(2) A place is not a common gaming house
within the meaning of subparagraph (i) or clause (B) or (C) of subparagraph
(ii) of paragraph (d) of subsection (1)
(a) while it is occupied and used by
an incorporated bona fide social club or branch thereof if
(i) the whole or any portion of the bets on
or proceeds from games played therein is not directly or indirectly paid to the
keeper thereof, and
(ii) no fee in excess of ten cents an hour
or fifty cents a day is charged to persons for the right or privilege of
participating in the games played therein; or…
[Page 789]
A brief description of the game of bridge, more
precisely contract bridge, was given in evidence. It is sufficient to say that
it shows that the cards in the hands of each of the four players are determined
by chance but that afterwards the outcome of the game depends in substantial
measure upon the skill of the players in bidding and in playing their hands. In
this the only element of chance is that which results from the deal and the
fact that only the hand of the dummy is disclosed to the other players after
the bidding. The opinion of an expert bridge player heard as the only witness
was that, on the whole, the element of skill outweighs the element of chance.
Appellants’ contention is that this takes the game of bridge out of the
category of games of mixed chance and skill.
In considering this submission, it is convenient
to start by examining the language used in the enactment. Taken by themselves
the words used in the definition of “game” are not ambiguous. They apply to any
game of chance only or of mixed chance and skill. The word “mixed” implies no
indication of the respective proportions of the two elements. Nothing shows
that they must be equal or nearly so. Nothing indicates which is to be
preponderant. The first rule to observe in construing any legislative enactment
is that unless there is ambiguity, it is to be applied literally.
In the Encyclopedia Britannica, under the
heading “gaming and wagering”, one reads:
In England and the United States a general
distinction between lawful and unlawful gaming seems to be that where skill
predominates, the gaming is lawful; where chance does, it is unlawful (27 Corpus
Juris p. 969). A court must decide which is the predominant factor in the
case of each game in question. Cases show that one cannot rely on the record,
for it is full of reversals and contradictions.
It seems clear that the Parliament of Canada
sought to avoid the uncertainties involved in trying to ascertain the
predominant factor in mixed games by enacting that they would be treated in the
same way as games of pure chance. The law in force prior to the enactment of
the 1892 Criminal Code was the Gaming Houses Act originally
enacted by 38 Vict., c. 41, reproduced in R.S.C. 1886, c. 158. As in the United Kingdom act, 17-18 Vict., c. 38,
“unlawful game” was not defined. From the decision of the Queen’s Bench
Division in Jenks v. Turpin, it
would appear that
[Page 790]
card games were considered “unlawful” if they
were games of chance, or games of chance and skill combined which cannot be
called games of mere skill.
When the first criminal code was enacted (55-56
Vict., c. 29), s. 196 read as follows:
196. A common gaming-house is—
(a) a house, room or place kept by
any person for gain, to which persons resort for the purpose of playing at any
game of chance; or
(b) a house, room or place
kept or used for playing therein at any game of chance, or any mixed game of
chance and skill, in which—
(i) a hand is kept by one or more of the
players exclusively of the others; or
(ii) in which any game is played the
chances of which are not alike favourable to all the players, including among
the players the banker or other person by whom the game is managed, or against
whom the game is managed, or against whom the other players stake, play or bet.
Three years later, chapter 40 of 58-59 Vict,
added to paragraph a “or at any mixed game of chance and skill”, thus
making the two paragraphs identical in that respect.
What is now subpara. B of para, (ii) of the
definition of “common gaming house” was added in 1919 by 8-9 Geo. V, c. 16.
Sections 4 and 5 of the same statute also replaced the words “any unlawful
game” by “any game of chance or any mixed game of chance and skill” in s. 985
(702 of the 1892 Criminal Code, 169 of the present Criminal Code) and
made a similar change in s. 986 (703 of the 1892 Code). Those two
sections had their origin in ss. 4 and 8 of the Gaming Houses Act and
it is apparent that the purpose of the amendment was to preclude any
possibility of construction by reference to the law prior to the Criminal
Code.
What is now in substance subpara. (C) of para,
(ii) of the definition of “common gaming house” as well as subs. 2 of article
168 was added in 1938 (c. 44, s. 12). This came shortly after a decision of the
Court of Appeal of British Columbia, Rex v. Williamson, in
which it held that a certain club could no longer be considered as not
operating for gain as this Court had on different facts decided, a few years
before, in Bampton v. The King. No
changes of substance have been made since that time and in the
[Page 791]
present Criminal Code, the maximum fees
for playing games in clubs remain those that were established by the 1938
statute.
To support their contention that in classifying
games, one has to ascertain what is the dominant element, appellants contend
that there is an element of chance in every game, even in those that are
admittedly games of skill such as chess, tennis and golf. This argument overlooks
the principle that statutes must be read in accordance with the usual and
accepted meaning of the words used. It is undoubtedly true that there are
chances involved in any human activity and that, statistically, results are
never predictable with complete certainty. 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.
Among dictionary definitions, the following
appear to be of some interest:
Funk & Wagnalls New Standard
Dictionary:
The expression games of chance is
used to describe those contests the outcome of which is largely governed by
chance, as in cards, dice and gambling games generally; and in opposition to games
of skill the result of which depends largely upon the dexterity of the
contestant.
Bouvier’s Law Dictionary. Vo Gaming:
There are some games which depend
altogether upon skill, others which depend upon chance, and others which are of
a mixed nature. Billiards is an example of the first; lottery, of the second;
and backgammon, of the last.
Larousse XXe siècle:
Jeu de hasard. Jeu
dans lequel le hasard seul décide de la perte ou du gain.
Jeux d’adresse. Jeux
où l’adresse a la principale part, comme le billard, la balle, etc.
Robert Dictionnaire de la langue française:
Jeux mixtes, où le hasard peut être plus ou
moins corrigé à l’aide du calcul ou de certaines combinaisons.
Having cited the above definition of “jeux
mixtes” (mixed games) given by a French lexicographer, I must add that French
courts having to apply criminal code provisions aimed at games of chance (“jeux
de hasard”) only, have held those provisions applicable to games in
[Page 792]
which chance is the predominating element, not
to those in which skill predominates, and have placed bridge among the latter.
Dalloz Nouveau Répertoire. Vo Jeu.
N° 37. Depuis 1877, la jurisprudence attribue
le caractère de jeu de hasard à tous les jeux dans lesquels la chance prédomine
sur l’adresse et les combinaisons de l’intelligence. C’est ainsi qu’elle
considère comme jeux de hasard: le loto, le poker, le baccara, les petits
chevaux. Ne sont pas par contre considérés comme jeux de hasard ceux où
l’adresse prédomine tels que le billard, les échecs, le bridge ou le piquet.
Thus, it would appear that French courts
interpret “jeux de hasard” much as British and American courts interpret “games
of chance”. However, granting that, in the application of legislative
provisions aimed at games of chance (“jeux de hasard”) the generally accepted
view is that these include only games of pure chance or games in which chance
is the dominating element, it does not follow that all other games must be
considered as games of skill within the meaning of a code provision
contemplating not only games of chance, but games of mixed chance and skill as
well. To admit appellants’ contention that mixed games in which skill is a
dominant element are to be considered as games of skill really means to deprive
of any effect the words “or mixed chance and skill”.
In my opinion this would be contrary to
Parliament’s clearly expressed intention. It is clear that Parliament intended
to avoid the uncertainties involved in determining what is the dominant element
and deliberately chose to include in the definition of “game” all mixed games
as well as games of chance.
Concerning Wurtele J.’s dictum in The King v.
Fortier, it
must be noted that it is not only obiter but entirely unsupported by any
reference or analysis of the enactment.
I would dismiss the appeal.
SPENCE J. (dissenting):—This is an appeal
from the decision of the Court of Appeal for Ontario
pronounced on July 4, 1967, wherein that Court dismissed an appeal from the conviction
of the three accused by the police magistrate at Toronto on September 22, 1966.
[Page 793]
The three accused were convicted on the charge
that:
within six months ending on the 12th day of
March, A.D. 1966, at the Municipality of Metropolitan Toronto, in the County of
York, unlawfully did keep a common gaming house situate and known as 3101
Bathurst Street, Suite 201, contrary to the Criminal Code.
Although the Crown, at the commencement of the
trial, adduced the evidence of detective John Frederick Ley-bourne, upon the
continuation of the trial on a later date, an agreed statement of facts was
submitted. That statement with the evidence of Mr. Eric Murray, who was
called as the only defence witness, comprised the complete record considered by
the learned magistrate. Mr. Murray was described by McLennan J.A., in the
Court of Appeal, as follows: “His qualifications as an expert on the game of
bridge are impressive.” In view of the offices held by Mr. Murray, as
taken from his own evidence, that description may be said to be, at any rate,
not put too strongly. Upon such evidence, and after the submission of argument
in writing, the learned magistrate convicted the three accused. That conviction
was affirmed by the Court of Appeal, McLennan J.A. giving in writing the
reasons of the Court.
The three accused applied for and obtained leave
to appeal to this Court, and served a notice of appeal in which was set out the
following ground of law:
Was there any evidence upon which the Court
of Appeal for Ontario could find that the game of bridge was a “game” within
the definition of “game” in section 168(1) (f) of the Criminal
Code?
McLennan J.A., in giving the reasons for
judgment of the Court of Appeal, said:
The narrow question is whether a card game
called “Bridge” is a game of skill, in which event the convictions cannot
stand, or whether it is a game of chance or of mixed chance and skill, and if
so, the convictions must be affirmed.
Section 176(1) of the Criminal Code provides:
176. (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.
Section 168(1) of the Criminal Code provides,
in part:
168. (1) In this Part,
* * *
(d) “common gaming house”
means a place that is
(i) kept for gain to which persons resort
for the purpose of playing games; or
[Page 794]
(ii) kept or used for the purpose of
playing games
(A) in which a bank is kept by one or more
but not all of the players,
(B) 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,
(C) 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
(D) 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;
* * *
(f) “game” means a game of chance or
mixed chance and skill;
It will be seen from a perusal of this
section that the ground of law cited by the appellants for the
determination of this Court is essentially the same question as that set out by
McLennan J.A. and which I have quoted above.
Counsel for the Crown before this Court took the
position that whether or not the game of bridge was one of skill, on the one
hand, or, on the other hand, a game of chance, or mixed chance and skill, was a
question of fact and not a question of law, that that question of fact had been
resolved by the magistrate and therefore there was no question of law to submit
to this Court. Counsel cited authority for that proposition: R. v. Thompson, per Lewis J. at p. 94. I am of the
opinion that such objection is not well based. What this Court must do is
interpret the words in s. 168(1) (f) of the Criminal Code “means
a game of chance or mixed chance and skill” and that interpretation is a
question of law. As I have said, the magistrate came to his decision upon
consideration of the agreed statement of facts and of the evidence of Mr. Murray.
That agreed statement of facts must be set out in full. It is as follows:
STATEMENT
OF FACTS
The North York Bridge and Social Club is
located at 3101 Bathurst Street, Toronto, in Suite 201 of an office building
and its name is listed as a tenant on the main directory in the lobby of the
building. The facilities and amenities provided by the Club are as indicated in
the photographs of the Club premises filed as exhibits. These facilities
include: one long room with card tables; an area where a restaurant is set up
with tables on which food may be served; a partitioned area used as an office;
and a room used as a lounge with television and other amenities. The
[Page 795]
Club premises are open from twelve noon
until midnight, and sometimes later, seven days per week. The premises, during
the six months prior to March 11, 1966 were used primarily for the playing of
card games.
During the period in question, the accused,
George Banks, who is aged 42, married, with one child, and is a local Toronto
business man was elected President of the Club. Mr. Banks is of previous
good character and has carried on business in the city of Toronto as a purse
and belt manufacturer for some twenty-five years. The accused, Leo Ross, who is
aged 32, married, and of previous good character, was employed as a Bridge
Instructor and was also elected an officer of the Club. Mr. Ross is a
recognized bridge expert in the city of Toronto and has worked as a Bridge
Instructor in several bridge clubs in the city. He was at various times in
charge of the premises. The accused, Floyd Dyson, was employed as a Bridge
Director sometime in the month of February 1966 and at a meeting of the Club
members was elected a member of the executive.
A copy of the minutes of the said meeting
have been filed as an exhibit. Mr. Dyson is of previous good character and
has been a recognized bridge player in the city of Toronto for a number of
years and has instructed in the game of bridge.
In accordance with various invoices and the
ledger book of the Club filed as exhibits, all of the furniture and fixtures in
and about the Club premises are owned by the North York Bridge and Social Club;
and were paid for by the North York Bridge and Social Club. The Club maintains
a bank account and all monies received are deposited to the credit of the Club
and all disbursements are paid out of Club funds. The four officers of the Club
are George Banks, Leo Ross, Floyd Dyson and Morris Taylor; and any two of the
said officers have signing privileges on the Club account for the disbursal of
funds.
Sometime during the month of December,
1964, the accused Banks contacted Sergeant of Detectives, John Wilson,
respecting the proposed operation of a bridge and social club. Sergeant Wilson
advised Banks as to the means of becoming incorporated.
On December 29, 1964, one Louis Silver, a
Solicitor acting on behalf of Banks and other proposed incorporators also
contacted Sergeant Wilson as to the proposed club. As a result,
Mr. Silver, on January 4, 1965, sent a letter to the Ontario Provincial
Secretary’s Office as to the proposed incorporation. Further correspondence was
exchanged between Silver and the Provincial Secretary’s Office leading to an
application for incorporation being submitted on January 14, 1965. Photostatic
copies of this correspondence have been filed as exhibits. A copy of the final
application for incorporation as submitted to the Provincial Secretary’s
department has also been filed as an exhibit.
In March of 1965, the Club began actual
operations, On September 24, 1965, the Provincial Secretary’s Office advised
Mr. Silver that it would not approve the application for incorporation at
that time. Meanwhile, on August 12, 1965, officers from the Morality Squad of
the Metropolitan Toronto Police force attended at the Club premises. It was
observed that there were approximately 40 men playing cards at the time. In
some of the games, the officers observed that there was an exchange of money
between players taking part in the games. It was learned that the Club charged
an annual membership fee of $35.00, an amount arrived at by the auditors of the
Club as being appropriate to cover the then expenses of running the Club and to
be adjusted as required for this purpose.
There were seven additional attendances by
various members of the Morality Squad from December 13, 1965 to and including
March 11, 1966.
[Page 796]
All these attendances were pursuant to
warrants to search filed as exhibits in this case. During all these
attendances, card games were observed to be played. All the visits made by the
police to the premises were made during the afternoon hours with the exception
of one visit which was made during the evening hours. During the afternoon
visits, the officers did not observe any bridge being played, however, at the
time of the evening attendances upon the premises, two games of bridge were in
fact in progress.
It would appear that the fees charged for
playing bridge are as follows: for one pivot, which is the equivalent of three
rubbers, the charge of $1.00; for more than one pivot but less than two pivots,
the charge of $1.25; for two complete pivots, a charge of $1.50, for more than
two pivots but less than three pivots, a charge of $1.75; and for three pivots
or more, a maximum charge of $2.00. The length of a rubber would be
approximately fifteen to twenty minutes, and consequently, an average pivot
would be about one hour.
On March 11, 1966, various articles on the
premises were seized pursuant to a warrant to search. Among those articles were
decks of playing cards. During the last seven visits, either the accused Banks
or the accused Ross was warned by the officers attending that in their opinion,
the operation of the Club violated the Canadian Criminal Code. It seems, on the
other hand, that Mr. Silver had previously advised Banks and other members
of the Club including Ross, that in his opinion, the operation of the Club on
the basis of instructions given to him were not in contravention of the
provisions of the Canadian Criminal Code.
The ledger of the Club was seized on March
11, 1966 and filed as an exhibit. This ledger was prepared by a chartered
accountant and is admittedly in good order. It has one sheet entitled “Card
Fees” which sheet reveals the amounts that were collected for card fees during
the time of the operation of the Club. The yearly dues supplemented by the
above card fees constituted the only revenues to the Club. The restaurant
facilities are provided to the operator of the restaurant and all profits
derived from the operation of the restaurant are retained by the operator
without any payment being made to the Club.
I shall attempt to summarize the evidence given
by Mr. Murray. Having outlined his qualifications, he very tersely
described the game of bridge in a few paragraphs as follows:
Q. Now, will you explain to the Court how
bridge is played and the basis on which it’s played?
A. Well, very briefly, bridge is a card
game and it’s played with the full deck of fifty-two cards. Thirteen cards are
dealt to each four players who participate in partnerships, one partnership
against the other.
The cards are dealt thirteen face down to
each player and thereafter the partnerships bid—the players bid in rotation,
attempting to reach certain contracts.
When a final contract has been determined,
then a person who has named the suit first becomes the declarer. His partner
spreads his hand face up on the table, which becomes the dummy, and the play
commences and you can play through by tricks, each trick consisting of four
cards, one card from each player’s hand, including the dummy, to each trick.
You bid and achieve game contracts or
[Page 797]
parts of contracts. With slam contracts you
receive points bonuses so that your end result is correlated into points, and
these points are kept on a tabulation.
Mr. Murray continued to testify that the
literature as to the game of bridge was voluminous consisting of many hundreds
of books and a very large number of magazines, monthly publications in Canada,
North America and throughout Europe. He pointed out that bridge was now played
on a basis of international competition, likening it to the Davis Cup in
tennis. Mr. Murray then dealt with the elements of chance and skill in the
playing of the game of bridge. He quite freely admitted that the dealing of the
cards was altogether a matter of chance. He described the deal as “that is
merely putting the weapons in the players’ hands” and continued, “well, once
the cards are dealt, the game is entirely skill, in my opinion”.
Mr. Murray contrasted the game of bridge with other card games such as
poker and pointed out that in the latter there was, what he described, as the
co-mingling throughout the game of skill and chance, and then testified, “this
isn’t true of bridge at all; once the cards are dealt it becomes a question of
conveying information between a partnership within the limits of the rules of
the game and then once the cards are dealt the dummy becomes a question of
playing the hand the most skilful way you can”. The latter part of this
sentence is an accurate quotation from the evidence as certified but the word
“dummy” must be an error. Mr. Murray was of the opinion that after the
deal theoretically there is no opportunity for chance to enter into the playing
of the game. He remarked that it was possible for an individual to play a hand
that, in his opinion, might be played badly and yet he might succeed, but that
had nothing to do with chance because a skilful player, even in a short game,
is going to succeed. Then, in cross-examination, he added: “Certainly over any
lengthy period of time it’s virtually a certainty, if the period of time is
long, you have control of the situation if you have skill”.
Mr. Murray gave as his opinion that in any
game there was some element of chance however small and he used as an example
two games which could easily be considered those of pure skill: firstly, a
chess game between masters, and, secondly, a finely played tennis match. In the
first case, he pointed out that the chance slamming of a door
[Page 798]
nearby when a chess master was in deep
concentration might disturb his thinking and cause him to make a poor move,
and, in the second case, a chance pebble on an otherwise perfectly prepared
court, might cause a ball to twist out of line. Those are both examples of what
I might term accidental hazards. An example had occurred to me of tournament
professional golf, where a bad lie on a fairway 285 yards away from the tee and
quite imperceptible might cause difficulty to even the most skilful and
cautious player.
McLennan J.A., in giving the reasons for the
Court of Appeal, expressed the view that the element of chance caused
originally by the deal continued to affect the play of the game thereafter. In
short, that there was the same co-mingling of chance and skill as Mr. Murray
had pointed out would occur in a poker game. The learned justice in appeal
said:
The play of the hand follows the bidding.
The play consists of each of the players, in some order or other, which has not
been described in the evidence, placing a card on the table with one from the
exposed hand and such cards constitute a “trick”. As each player has 13 cards
to start with there must be 13 tricks, won or lost, following each deal. One
must assume, because it was not otherwise stated, that the play of 13 tricks
following a deal is an individual game or part of a game. It seems a reasonable
inference from the reference in Mr. Murray’s evidence to “bidding” and
“contract” that the partnership making the highest bid undertakes or contracts
to win a certain number of the 13 tricks. The winning of a trick must be based
upon some values determined either by certain differences between the cards or
some rule of the game giving values to groups of cards. It is obvious that such
values, and they may be the same or different values from the bidding values,
must determine whether a trick is won or lost, and since what particular cards
and the playing values thereof each player has is determined by the chance of
the deal, the play of the cards or the way in which they can be played are
substantially affected by chance. The defensive play, no doubt, refers to the
play of the cards by the partnership opposing the partnership making the
highest bid and defensive play would also be substantially affected by chance
for the same reasons as the play.
With respect, these conclusions do not seem to
be in accordance with the evidence given by Mr. Murray. Once the cards
were, by chance, dealt thirteen to each player, then it was the task of each of
those players by the exercise of his skill to inform his partner with a very
considerable degree of accuracy what thirteen cards, which had been so dealt to
him by chance, he held in his hand. It is also the part of each pair of
players, by the process of bidding, to deceive their two opponents as to the
values of the cards
[Page 799]
which they held in their hands. When the bidding
was completed, it was the part of each of the players to so play the thirteen
cards in his hand as to arrive, in the case of those successful in the bidding,
at the contract which they had declared and in the case of those who were
unsuccessful in the bidding to defeat that contract.
I am of the opinion that once the cards had been
dealt then in the progress of the play all element of chance disappears and any
chance thereafter can only result from the deal. In these circumstances,
therefore, I believe it must be taken as established that in the game of bridge
the only chance involved is the chance in the dealing of the cards and that
certainly the element of skill predominates in the playing of the game. It is
the submission of counsel for the appellants that on that basis the game of
bridge is not “a game of chance or mixed chance and skill”.
I am of the view that there is some aid in
interpretation in the submission made to us by counsel for the appellants that
in a very complete research of prosecution as to gaming in Canada and the
United Kingdom he had not found a single case where the playing of a game of
bridge had been the subject of prosecution. There is a series of cases dealing
with other games where remarks have been made, perhaps obiter, by the courts
indicating that in the view of those courts the game of bridge was a game of
skill or even of pure skill. So, in Woolf v. Freeman, Macnaghten J. remarked at p. 181:
It is certainly lawful to play bridge. In
playing games of cards some skill is required. Bridge is a game of skill, but
whether poker is a game of skill is more questionable.
In D’Orio v. Leigh & Cuthbertson Ltd., Ellis, Co. Ct. J., said at p. 156:
After the problem to be played is
determined by the method above stated, it appears that skill, if it is not
entirely necessary to win the game, predominates and the element of chance if,
not negligible, is a no greater factor than it is in any game of skill such as
bridge.
In re Betty Loeb Allen, Gibson C.J. said, at p. 281:
The rules of the game of bridge, which have
been established on an international basis, are set forth in encyclopedias and
other texts, and we are satisfied from the rules and from the many publications
on the subject that the game is predominantly one of skill.
[Page 800]
In Regina v. Thompson, Lewis J. said:
Bearing in mind that all games of cards are
made unlawful by statute and that the Gaming Act, 1845, did not repeal
specifically that part of the statute of 33 Hen. 8 which dealt with “carding”,
we are of opinion that the proper question for a jury, when dealing with a game
of cards, is: Is this a game of skill, i.e., a game in which the element of
chance is so slight as to render the game one which can properly be said to be
a game of mere skill?
(The underlining is my own.)
In my view, we are not assisted by a general
statement as to games of cards, such as made by Chancellor Boyd in The King
v. Laird:
Euchre is a well known game at cards,
imported from the States and it is a game of chance.
Nor that made by Harvey C.J., dissenting, in the
Supreme Court of Alberta, in Rex v. Ring Hoy:
The ordinary game of cards in which there
is a chance in the deal of the cards as to the value of the hands dealt to each
player is a game in which chance and skill are combined, and that is no doubt
what is meant by the expression “mixed game of chance and skill”.
It may be noted that the actual game involved in
this case was that of fan-tan which is surely a game of chance alone.
Counsel for the appellant stressed in his
argument to this Court a statement made by Wurtele J. in the Court of King’s
Bench, Appeal Side, in the Province of Quebec, in The King v. Fortier:
A game of chance is one in which hazard
entirely predominates; and a mixed game of chance and skill is one in which the
element of hazard prevails notwithstanding the skill and adroitness of the
gamesters and the combinations brought to bear by their understanding and
ability.
It is the submission of counsel that the
interpretation of the words in s. 168(1) of the Criminal Code “or mixed
chance and skill” should therefore be that in order to fall within such
classification the game must be one in which chance prevails over skill or predominates
and that, therefore, a game of bridge in which any element of chance ends with
the deal and where that element of chance is overcome and very much
subordinated by the exhibition of skill thereafter should not be classed as
such a mixed game.
[Page 801]
Although in the Fortier case the game of
bridge was not being considered at all, certainly the element of predominance
of one factor or the other was considered by the learned justice in appeal to
be a telling and important element. On the basis that there must be some chance
in every game, as Mr. Murray testified, I am of the opinion that the
statements made in the Woolf case, in the D’Orio case, and in the
Betty Loeb Allen case support the contention that the predominance of
skill in the game of bridge should indicate that it is not properly considered
a game of mixed chance and skill. Indeed in the Betty Loeb Allen case a
conviction for permitting an illegal game to be played was quashed by the
Supreme Court of California for that exact reason. I have come to this
conclusion much assisted by the test stated by Lewis J., giving judgment for
the Court of Criminal Appeals in R. v. Thompson, supra, when he put the
question “Is this a game of skill, i.e., a game in which the element of chance
is so slight as to render the game one which can properly be said to be a game
of mere skill?”
The question arises, of course, that if a game
is a game of chance, when although skill is present chance predominates, then
what is the necessity of the words in the statute “a game of mixed chance and
skill”. The explanation may well be found in the judgment of Salmond J. in Weathered
v. Fitzgibbon:
The term “game of chance” is, however,
ambiguous. It may be limited to games which are pure games of chance, or it may
also include games, such as most games of cards, which are games of chance and
skill combined. The question as to the true interpretation in this respect of
s. 10 of the Gaming Act was considered and determined by this Court in Scott
v. Jackson, [1911] N.Z.L.R. 1025. There, if I understand the decision
aright, it was held that the term “game of chance” as used in s. 10 of the
Gaming Act is limited to games of pure chance, and does not include games of
mixed chance and skill. This decision is chiefly based on the provisions in
pari materia of s. 163 of the Crimes Act, 1908, defining the indictable
offence of keeping a common gaming‑house, in which a distinction is drawn
by the Legislature between games of chance and games of mixed chance and skill.
It was held accordingly that the term “game of chance” as used in the
corresponding provisions of the Gaming Act was similarly used by the
Legislature as distinguished from games in which chance was combined with
skill. By a game of pure chance I understand to be meant a game in which there
is either no element of skill whatever, or an element of skill so unsubstantial
and unimportant that for all practical purposes the game is one of chance
exclusively. All such games are unlawful games within the meaning of s. 10 of the
Gaming Act. But this section has no
[Page 802]
application to games of mixed skill and
chance—that is to say, to games in which there exists a substantially operative
element of skill—for example, most games of cards.
The legislator, therefore, desiring to include
in the prohibition not only games of pure chance but games where, although a
degree of skill was present, the predominating element was chance, used the
words as they appear in the present statute. I am none the less of the opinion
that in the game of bridge, where the element of skill far outweighs any
element of chance and where in fact the element of chance is a mere
coincidental preliminary, it should not be considered as being within the words
of the statute “a game of mixed chance and skill”.
For these reasons, I would allow the appeal and
quash the conviction.
Appeal dismissed, SPENCE J. dissenting.
Solicitor for the appellants: G.A.
Martin, Toronto.
Solicitor for the respondent: The
Attorney General for Ontario, Toronto.
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