Docket: IMM-7846-14
Citation:
2015 FC 1192
Ottawa, Ontario, October 21, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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OFER COHEN
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Is the form of poker known as “No limit Texas Hold’em” more a game of skill or more
a game of chance? If more a game of skill, the deportation order issued by a
member of the Immigration Section of the Immigration and Refugee Board of
Canada against Mr. Cohen was unreasonable and must be set aside. He was found
to be inadmissible because he was instrumental in setting up an online poker
platform geared to the Israeli market, which in the member’s view was a
criminal offence there.
[2]
On his arrival to Canada as a visitor, Mr.
Cohen, an Israeli citizen, who is not a Canadian permanent resident, was noted
to be wanted in Israel on the following criminal charges:
a.
Prohibition of lottering and betting
b.
Prohibition of keeping or managing a place of
lottering and betting
c.
Conspiracy to commit a felony
d.
Conspiracy to commit a misdemeanour
e.
Prohibition of money laundering
f.
Prohibition of performing a prohibited
transaction with property
[3]
He was deemed inadmissible to Canada on the
grounds of serious criminality, criminality and for being a member of organized
crime. This was not an extradition hearing.
[4]
The relevant portions of the Immigration and
Refugee Protection Act are found in Division 4 thereof, titled “Inadmissibility”. Section 33 provides that facts are
assessed on whether “there are reasonable grounds to
believe that they have occurred, are occurring or may occur”. Serious
criminality and criminality are covered by s 36 and organized criminality by
s 37. They are annexed hereto. Distinctions are drawn between permanent residents
and foreign nationals; whether the act or acts in question were committed in
Canada or, if not, whether the applicant was convicted in the foreign
jurisdiction. If convicted outside Canada, the issue is simply whether the acts
would have constituted an offence in Canada.
[5]
Mr. Cohen had not been convicted in Israel and
so the first step in a two-step process was for the member of the Immigration
Division to determine if the acts constituted an offence in Israel. If so, the
second step was to determine whether those acts if committed in Canada would
constitute an offence here.
[6]
The Member concluded that Mr. Cohen’s acts
constituted an offence in Israel and, had they been committed in Canada, would
have offended sections 202 and 207 of the Criminal Code. Section 202
sets out 10 circumstances in which recording or registering bets, and pools and
the like constitute an offence, while section 207 deals with unlicensed
lotteries.
[7]
The Federal Court of Appeal has set out various
approaches in considering what the equivalent offence would have been had the
acts been carried out in Canada. See Hill v Minister of Employment and
Immigration, [1987] FCJ No 47 (QL) and Li v Minister of Citizenship
and Immigration, [1996 FCJ No 1060 (QL)]
[8]
In my opinion, it is not necessary to consider
whether Mr. Cohen’s acts would have constituted a criminal offence, if
committed in Canada. I am satisfied that his acts, which relate to online
gambling, were not criminal in Israel. Thus, I need not consider Mr. Cohen’s
submission that the acts were not carried out in Israel because the server was
in Germany. In so deciding, I have reviewed the member’s decision on the
standard of reasonableness.
I.
The Facts
[9]
Mr. Cohen, who apparently is very knowledgeable
in IT matters, was developing an internet online poker platform. He needed
financing and came to make an arrangement with two other Israelis, Sharon
Alaluf and Uri Luzon. Through them, he obtained additional financing in order
to get his platform up and running. Parts of the arrangements were that the
platform was to meet Messrs. Alaluf and Luzon’s specifications, and the
platform was to be leased to them for a period of time.
[10]
The poker game in question was “No limit Texas Hold’em”. The website was operational
from about July until September 2009. Following the arrest of Mr. Luzon on
unrelated drug charges in September 2009, the website was shut down. Messrs.
Alaluf and Luzon were charged and pleaded guilty to various offences relating
to the online gambling website. Once Mr. Cohen’s involvement came to light, a
warrant for his arrest was issued by the Israel authorities. However, he had
already left the country.
II.
Analysis
[11]
Although poker is, without question, a form of
gambling, gambling as such is not illegal in Israel. Section 225 of the Israeli
Penal Law provides that if a person who has organized or conducted a “prohibited game” or a lottery or betting may be liable
to three years imprisonment.
[12]
A prohibited game is defined in s 224 as a game
in which the outcome depends “more on chance than on
understanding or ability”. A lottery is an arrangement in which by drawing
lots or otherwise there is an opportunity to win money, the win depending again
more on chance than on understanding or ability. Betting is defined is an
arrangement whereby it is possible to win money based on a guess.
[13]
Before the Immigration Division, Mr. Cohen filed
an affidavit from Professor Randal Heeb, PhD, an economist with impressive
credentials, who has taught techniques in game theory and the application thereof
to business problems. He has been trained in econometrics, the branch of
mathematics and statistics involving the application of statistical techniques
to economic data. His opinion that “No limit Texas
Hold’em” poker is best characterized as a game of skill, rather than a
game of chance, is based on over 25 years of personal poker play at the highest
level of international tournament competition, as well as his expertise as a
statistician and econometrician. In preparing a report for a US court, he
reviewed some 415 million actual hands of online “No
limit Texas Hold’em” poker.
[14]
“Texas Hold’em” begins with each player being dealt two cards facedown (the hole). Then
three cards are dealt face up (the flop), followed by a fourth card (the turn)
dealt face up. Finally, a fifth card (the river) is also dealt face up. Each
deal is followed by a betting round as in other poker games, players may check,
raise or hold during each betting round. The best five-card poker hand is
selected from cards in the hole or those face up.
[15]
Professor Heeb noted that tournament play is
more skilful than internet play in that in addition to reading the cards, one
may read one’s opponents and find a “tell”, a
facial expression or movement which would indicate a particularly good hand or
a bluff.
[16]
He pointed out that there are a great many
variables. He assessed 241 variables related to strategy and game tactics, in
both unlimited and limited stakes. Higher skilled players came ahead in at
least 60% of all simulations. He concluded that “No limit
Texas Hold’em” is a game in which skill clearly predominates over
chance.
[17]
On the other hand, the Minister produced
evidence that Messrs. Alaluf and Luzon had pleaded guilty, and that there was a
warrant out for Mr. Cohen’s arrest. Strictly speaking, he has not even been
charged as he first must be arrested and arraigned in court. It is unreasonable
to conclude that because Messrs. Alaluf and Luzon pleaded guilty Mr. Cohen
committed the same offences. There may well have been plea bargaining as Mr.
Luzon was already in jail on unrelated drug charges, and Mr. Cohen’s
involvement may have been peripheral.
[18]
The crucial finding on the member’s part is that
she preferred an article in a book filed by the Minister titled “Gaming Law,
Jurisdictional Comparisons”, written by the Israeli law firm of Herzog Fox
and Neeman. In that article, the authors state that the Israel courts have held
that “certain forms of poker constitute “prohibited
games” as defined in s 224 of the Law.” They went on to say:
Poker – poker is not defined by any Israeli
legislation. Nevertheless, in several decisions (few of them rendered many
years ago) Israeli courts opined that certain forms of poker constitute a ‘prohibited
game’ as defined in section 224 of the Law.
[19]
It is to be noted that the Israeli courts have not
held that all forms of poker are prohibited games. There has not been a blanket
condemnation of poker as such, and the article contains not one word about Texas
Hold’em.
[20]
Findings as to foreign law are findings of fact,
albeit facts of a somewhat special nature. In court, a judge usually decides
what foreign law is after considering expert opinion from lawyers in the
foreign jurisdiction in question. However, rules of evidence are more relaxed
in administrative tribunals.
[21]
The standard of review is reasonableness. Thus,
it is not for me to assess the evidence directly, but rather to decide whether
or not the decision was reasonable. The Minister emphasizes that the only legal
opinion as to Israeli law is from Israeli lawyers. However, that opinion is in
a legal article and was not geared to Mr. Cohen’s particular situation. More to
the point, nowhere does it say that any Israeli court has ever held that Texas
Hold’em is a prohibited game. Consequently, there was nothing for the member to
compare, and so the decision must be considered unreasonable and be set aside.
It is not necessary to refer the matter back to another member as Mr. Cohen has
left the country and the alleged purpose of his visit to Canada, i.e. to
visit a friend, is long gone. However, his situation was not moot in that he
could have been prevented from ever returning here.
[22]
In closing, as the Gambler said:
'If you're gonna play the game, boy
You better learn to play it right'
You got to know when to hold 'em
Know when to fold 'em
Know when to walk away […]
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