Supreme Court of Canada
Bampton v. The King, [1932] S.C.R.
626
Date: 1932-06-15
George
Bampton Appellant;
and
His Majesty
The King Respondent.
1932: April 26; 1932: June
15;
Present: Anglin C.J.C. and
Duff, Rinfret, Lamont and Smith JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR BRITISH COLUMBIA
Criminal law—Club—Benevolent
Societies Act, R.S.B.C., 1911, c. 19—Place " kept for gain"—Common
gaming house—Game of cards played—Criminal Code, section 226—The Societies Act,
R.S.B.C., 1914, c. 236.
The appellant was steward of a
bona fide club organized pursuant to the Benevolent Societies Act
(now the Societies Act) of British
Columbia.
[Page 627]
The club had a membership of
1,700 and provided all the regular facilities of a social club, including
meals, billiard rooms, reading rooms, various card games, etc.; it also leased
and operated a football field. Members contributed ten cents apiece to the
funds of the club for each half hour's play at the poker table, irrespective of
whether they were winning or losing. This money was not taken from the stakes
or the pot, but was collected by the appellant, as steward, from the players
and paid over to the club. Only members were allowed in the premises, a by-law
expressly forbidding the introduction of visitors to any part of the club
property. The appellant was convicted, under section 226 of the Criminal Code,
of unlawfully keeping a common gaming house; and the conviction was affirmed by
the appellate court.
Held, reversing the judgment of the Court of Appeal
([1932] 1 W.W.R. 154), that, upon the facts, the club was not "a house ***
kept *** for gain " within the meaning of section 226 Cr. C. and that the
appellant had been wrongly convicted.
R. v. Riley ( (1917) 23 B.C.R. 192 and R. v.
Cherry and Long ( (1924) 20 Alta. L.R. 400) approved; R. v.
Sullivan ( (1930) 42 B.C.R. 435) overruled.
APPEAL from the decision of
the Court of Appeal for British Columbia , maintaining the conviction of the appellant of
having kept a common gaming house.
The material facts of the case
and the questions at issue are stated in the above head-note and in the
judgments now reported.
J. W. de B. Farris K.C.
for the appellant.
E. F. Newcombe K.C. for
the respondent.
The judgments of Anglin C.J.C.
and Rinfret, Lamont and Smith JJ. were delivered by
ANGLIN C.J.C.—After careful
consideration of this appeal, I am satisfied that the order made by Newcombe J.
granting leave herein was providently made and that this court has jurisdiction
to entertain this appeal, on the ground of conflict between the decision of the
Court of Appeal for British Columbia in it and the decision of the
[Page 628]
same court in R. v.
Riley
, which, although impliedly overruled in R. v. Sullivan
, had in the meantime been followed in R. v. Cherry and Long,
decided by the Appellate Division of Alberta in 1924. No allusion was made by
the Court of Appeal, either in the Sullivan case
or in the present case, to R. v. Riley
or R. v. Cherry and Long
, although both were brought to the attention of the court, as appears in the report
of the Sullivan case at p.
436, and here in the appeal case and factums, probably because they had to do
with payments for refreshments and were thought, on that ground, to be
distinguishable.
We might have been disposed to
hold that this case fell within clause (b) (ii) of s. 226 of the
Criminal Code, but for the fact that the evidence does not shew that
the whole or any portion of
the stakes or bets or other proceeds at or from such games (i.e., games of
chance, or mixed games of chance and skill) (was) either directly or indirectly
paid to the person keeping such house, room or place.
In fact, the players would appear
to have paid this money to the steward out of their own pockets rather than
from any proceeds of the game. This appears from the evidence throughout the
case. On this point we adopt the view of Beck J.A. in R. v. Cherry
and Long
(at p. 407), where that learned judge says:
In my opinion, the only
reasonable interpretation of this clause ( (b) (ii) of s. 226 Cr. C.) is
that it refers, and refers only, to a payment made to the keeper out of one or
all of the "pots" under a rule, regulation, agreement or
understanding exacted by the keeper that such a payment shall be made as a rake-off,
commission or other form of profit to the keeper.
As to clause (a) of s. 226, we
find it difficult to say that the " house, room or place (was) kept ***
for gain." No doubt, the moneys paid by the players constituted largely
the revenue of the club and belonged to its members, playing being confined to
them.
The question really presented for
our determination is whether the decision of the Appeal Court of B.C. in R. v.
Sullivan
or that earlier delivered by the same court (then (1916) composed of Macdonald
C.J.A. and Martin and McPhillips JJ.A.) in Rex v. Riley
appeals to us as the better.
[Page 629]
In R. v. Riley (1),
Macdonald C.J.A. said:
In Halsbury's Laws of England, vol.
4, p. 406, (par. 860), a club is defined as
A society of persons
associated together for social intercourse, for the promotion of politics,
sport, art, science or literature, or for any purposes except the
acquisition of gain.
There is no finding that the
Pender Club was not a bona fide club; there is no suggestion that the
accused conducted the house under the name of the Pender Club for personal
gain, and apart from the finding as to the " rake-off" it is not
suggested that the Pender Club was conducted by the members thereof for gain.
The real question involved in the submission therefore turns on whether or not
the receipt by the club of moneys for refreshments, in the manner above set
out, proves a keeping of the club premises for gain.
The rake-off was not
compulsory; that was merely the method adopted by the players of paying for
their refreshments. Instead of each one paying for his own refreshments, or
treating in turn, they took from their common store from time to time
sufficient money to pay for all the refreshments which they consumed.
*****
I think the section is aimed
at the keeping of a house for gain to which persons come by invitation, express
or implied. The members of a bona fide club come as of right. This case
is analogous to the case of Downes v.Johnson,
where it was held that members of a bona fide club were not to be
considered persons who resorted to the club.
and Martin J.A. said :
It cannot properly be said,
on such facts (i.e., those in the case) that the house or place in question,
conducted by the hundred (here seventeen hundred) members of the social club
all equally interested (cf. Halsbury's Laws of England, Vol. 4, p. 406, par.
862) was "kept *** for gain" within the meaning of the section and as
defined by e.g., Rex v. James.
That learned judge concluded his
judgment as follows:
His Worship has found that
this benevolent club is only enabled to be kept open because of the gambling
that is admittedly going on there, its revenue being otherwise very
insufficient, but the correction of such an evil is for the legislature, and in
the circumstances the courts can do nothing to stop it.
In R. v. Cherry and Long
, Beck J.A., in delivering the judgment of the Appellate Division of Alberta
said,
There is a company, duly
incorporated under The Companies Act as "The Cooks and Waiters
Club." In the memorandum of association, the objects of the company are
stated as follows:
*****
(b) To carry on a
club for the use and recreation of cooks and waiters in Edmonton.
*****
The company was incorporated
on December 7, 1923. The company undoubtedly carried on a bona fide club
*** there was provision for admitting visitors or temporary members, on the
recommendation of two
[Page 630]
members, for thirty days,
after which period, if they desired to become permanent members they had to be
voted for. Persons who were not cooks or waiters could not become permanent
members; others could become visitors for thirty days.
*****
The club kept generally a
small stock of soft drinks, coca-cola, etc., " just ordinary refreshments
served in a club," but there was no restaurant in the club.***
There was evidence given by
the police, who watched the playing through the window on two occasions for a
very few minutes, that Cherry was seen taking, sometimes twenty-five and
sometimes fifty cents, from the "pot," on several occasions; that
Cherry put this in the outside pocket of his coat. It seems to me the natural
thing that, if provision was being made for paying for refreshments, the money
should be kept by one person. Cherry was evidently selected as that person. It
is not probable that he kept his own money in the outside pocket of his coat,
so that it is to be inferred that he was keeping this refreshment money
separate, to be used as occasion arose for the purpose intended.
It was suggested during the
argument that we should infer that Cherry, who was only a visiting member, had
in some way rented or got control of the use of the particular room in which he
was, for his own purposes and profit, but such an inference from the evidence
would, to my mind, be quite unreasonable. Long was a permanent member of the
club, and was voluntarily in charge on the occasion in question for a portion
of the time during which the play was going on.
*****
The first question for
decision *** is whether the place was being conducted " for gain."
As to whether a place is
kept for gain, if, from the stakes, bets or other proceeds at or from the game,
money is paid to a bona fide club, in whose premises the game is being
played, in payment for refreshments supplied by the club, I adopt the decision
of the Court of Appeal of British Columbia in R. v. Riley
, and hold that in such a case the club is not kept for gain within the meaning
of the statute.
*****
Such a payment is not made
to the keeper qua keeper, but as a seller of refreshments. Nor is the
money paid qua part of the pot, but is in reality a contribution by the
several players out of their own pockets, just as much as if they severally
contributed to the fund from their own pockets. It is paid for a purpose and
for a consideration in no way incident to the game as a game, and I think,
therefore, for the two reasons indicated, it is not the kind of payment which
is contemplated by the Act.
This view is strengthened by
two considerations: (1) The Act under consideration is criminal, and nothing is
to be found in it by intendment, but only what is clearly expressed ; and (2)
To hold otherwise would be to interfere with a harmless practice which is not
uncommon in what perhaps may be called high-class social clubs, those resorted
to by persons of divers callings, occupying the highest positions in the public
and social life of the country.
[Page 631]
The case at bar, in its facts,
seems to be clearly indistinguishable from R. v. Sullivan
. For instance, here, as there, the bona fide existence of the club is
conceded, the players, who sat at the poker table for a certain period of time,
all contributed (ten cents apiece for each half hour in this case), to the
funds of the Club; no profits were or could be distributed amongst the members,
although all the property of the Club and its revenues belonged to them (The
Societies Act, R.S.B.C., 1924, c. 236, s. 5) ; the steward collected this
money from the players and paid it over to the club; only members were allowed
in,—in fact, in the present case, by-law no. 18 expressly forbade the
introduction of visitors to any part of the club premises; the accused was
steward of the club. In all these features the case resembles R. v.
Sullivan
, where the decision was based on s. 226, 1 (a), of the Code, and the
Chief Justice, delivering the judgment of the court said,
The appellant swore that he
received nothing but his salary as steward. I think, however, that s. 69 of the
Criminal Code is applicable to the appellant, since it is apparent that the
club was a common gaming house.
From this passage and the rest of
the report, however, it would seem that the main question considered by the
court was the responsibility of the steward in the premises, rather than the
question now before us.
But, we agree with Martin J.A.,
where he said, in the case at bar,
This case cannot, in my opinion,
be distinguished in principle from our decision in R. v. Sullivan
. Indeed, in some respects it is a stronger case for conviction than that ***.
Not improbably the learned judge
here referred to the fact that, in the Sullivan case
, the club in question had, in addition to other features, a lunch counter
where patrons could buy meals, soft drinks, tobacco and cigars,—a feature which
was entirely lacking in the present case.
The same points made at bar in
the present case would appear to have been made in the Court of Appeal in the Sullivan
case , yet
the court there held that,
The appellant, therefore,
was properly convicted of being a keeper (of a common gaming house kept for
gain within clause (a) of s. 226).
The present case, however, would
seem to be a fortiori a case for conviction in that here the moneys paid
by the
[Page 632]
card players constituted a chief
source of revenue of the club.
After having given to this case,
and to the cases cited at bar, the fullest consideration, we prefer the
decisions and the reasoning put forward in the Riley case
and in R. v. Cherry and Long
to the decision and the reasons in support thereof given in the Sullivan
case . That
being so, it follows that the Sullivan case
must be overruled, the appeal herein allowed and the conviction against the
appellant must be quashed.
DUFF J.—The question is whether,
on the facts disclosed in evidence, the appellant could be lawfully convicted
of keeping a common gaming house, within the meaning of section 226 of the Criminal
Code. The relevant parts of the section are as follows:
Section 226. 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 at any mixed game of chance and skill; or
(b) a house, room or
place kept or used for playing at any game of chance, or any mixed game of
chance and skill in which
1. ***
2. The whole or any portion
of the stakes or bets or other proceeds at or from such game is either directly
or indirectly paid to the person keeping such house, room or place.
The appellant was the steward of
the club, which, admittedly, was a social club, incorporated under the Benevolent
Societies Act (now the Societies Act), which owned a club house, as
well as a football ground, and provided facilities for the social intercourse
and the amusement of its members. The indoor amusements consisted of billiards,
card games, including poker.
The point in controversy concerns
the manner in which poker games were conducted, and the particular fact upon
which the Crown relies is this: every half hour a member occupying a seat at a
table and engaged in playing poker was charged a certain sum. It is true also
that the respondent, the steward, provided chips to members for which no charge
was made, a circumstance, which, so far as 'I can see, has no bearing on the
question at issue.
[Page 633]
Members only were admitted to the
premises; and it is well perhaps to emphasize the fact already mentioned that
the club was not a proprietary club, but a club incorporated under the Societies
Act. I have no hesitation in holding that there is no evidence that this
club was " a house, room or place kept by any person for gain." There
is not the slightest evidence to indicate that the club was not precisely what
it purported to be—a club kept for the amusement and recreation, and solely for
that purpose, of the members. Fees and other contributions made by the members
were for the purpose of defraying the expenses.
The real question seems to be
whether or not the accused can be convicted under subsection (b) 2 of
section 226, i.e., whether or not the room in which poker was played was
a room or place kept or used
for playing therein at any game of chance or any mixed game of chance and skill
in which the whole or any portion of the stakes or bets or other proceeds at or
from such games as either directly or indirectly paid to the person keeping
such house, room or place.
It is argued by Mr. Farris that
the small fee charged for the use of the chair cannot be described as a
"gain," within the meaning of these words. I pass by that question
because my mind is perfectly clear upon this point, namely, that the payment of
this fee is not a payment of
the whole or any portion of
the stakes or bets or other proceeds at or from
the games. Admittedly, it is, of
course, not a payment from the bets or stakes. Is it a payment of "the
whole or any portion " or " other proceeds at or from such games
"? The word " proceeds" here must be read in connection with
bets and stakes, and I think we are justified in saying that the word is noscitur
a sociis, and that it is limited to the proceeds of a betting or gambling
game as such, and proceeds similar in character to bets and stakes. The broader
construction would lead to consequences which it is impossible to suppose could
have been contemplated. The section is aimed, I think, at the participation by
the owner of the place where the game is carried on, in the profits or other
proceeds accruing to members from the game itself.
No doubt where it is shewn that
gain is the real object of the keeping of the place, you have a case within
subsection (a). But, as I have said, no such case is made out
[Page 634]
here, and I think the argument
based upon subsection (b) fails also.
The appeal should be allowed and
the conviction quashed.
Appeal allowed.
Solicitor for the
appellant: T. B. Jones.
Solicitor for the
respondent: A. C. Bass.
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