Supreme Court of Canada
Rockert et al. v. R., [1978] 2 S.C.R. 704
Date: 1978-02-07
Harvey Rockert, Joseph Spring, Samuel Louis Slater, Harry Bergstein and Saul
Jack Bergstein (Plaintiffs) Appellants;
and
Her Majesty The
Queen (Defendant) Respondent.
1977: October 12; 1978: February 7.
Present: Laskin C.J. and Martland, Ritchie,
Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Criminal law—Gaming and Betting—Keeping
common gaming house—Definition—A place “kept or used” for the purpose of
playing games—Use of premises on one occasion—Criminal Code, s. 179(1).
Criminal
law—Statutes—Interpretation—Definition of common gaming house—Examination of
historical antecedents and development of offences relating to disorderly
houses—Criminal Code, s. 179(1).
Appellants were convicted on a charge of
unlawfully keeping a common gaming house. The trial proceeded on an agreed
statement of facts and the only question to be determined was whether the use
of the premises, an arena in Toronto, on one occasion, in the circumstances set out in the agreed
statement of facts, was sufficient to constitute the premises a common gaming
house within s. 179(1) of the Criminal Code. The trial judge held that
the definition in s. 179(1)(b)(i) applied and convicted the appellants.
The Court of Appeal agreed, concluding that such a single use of the premises
would bring the arena within the definition of a common gaming house so long as
the gaming activities were “carried on in a place in the way of a business by
those conducting such activities”.
Held (Ritchie
and Spence JJ. dissenting): The appeal should be allowed.
Per Laskin
C.J. and Martland, Pigeon, Dickson, Beetz, Estey and Pratte JJ.: The definition
of common gaming house as found in s. 179(1) has two parts, (a) and
(b). Section 179(1)(a) defines a common gaming house
as a place “kept for gain”. The Courts have interpreted kept as
connoting frequent or habitual activity. If the definition in s. 179(1)(b)
were to be interpreted in isolation and not in tandem with that of
s. 179(1)(a) the construction by the Court of Appeal would not have been
unreasonable. In the context of s. 179(1) it is unreasonable to import a
business purpose test into the definition in s. 179(1)(b) in the
face of the
[Page 705]
express words employed by Parliament in s.
179(1)(a), importing the closely related notion of gain.
Further, the words “used” and “kept” are not
employed to describe the frequency of the prohibited activity, but refer
instead to the type of activity carried on. A place is “kept” by a person who
allows others to use it for a prohibited purpose. A place is “used” by a person
conducting the forbidden activities.
The application of a definition of “used” as
referring to a single use to the circumstances of this case would be to put an
unnatural extension on the simple language used. The word “used” in
section 179(1)(b) connotes a practice of so employing the premises,
or at least a practice consisting of more than one use or occasion. This
conclusion as to the construction of the word “used” is reinforced both by
examination of certain other provisions of the Criminal Code and of the
historical antecedents and development of the offences relating to disorderly
houses.
Per Ritchie
and Spence JJ., dissenting: The analysis of the effect of the definition
of common bawdy-house, common betting house and common gaming house in s.
179(1) of the Criminal Code by Martin J.A. in the judgment of the Court
of Appeal correctly disposed of the issue. In particular the requirement of
frequent habitual use of the place before there could be a conviction for
keeping a “common bawdy-house” [Patterson v. The Queen, [1968]
S.C.R. 157] does not apply to a prosecution of keeping a “common gaming
house”.
[Weathered v. Fitzgibbon, [1925]
N.Z.L.R. 331; R. v. James (1903), 7 C.C.C. 196 (Ont. C.A.); R. v. Hoeltje (1932),
41 O.W.N. 69; R. v. Hynes (1919), 31 C.C.C. 293 (Ont. C.A.); R. v. Kerim, [1963] S.C.R.
125; Patterson v. The Queen, [1968] S.C.R. 157; Jenks v. Turpin (1864),
13 Q.B.D. 505; R. v. Patterson, [1967] 3 C.C.C. 39 referred to.]
APPEAL from a judgment of the Court of Appeal
for Ontario dismissing an
appeal by the accused from their conviction and sentences on a charge of
keeping a common gaming house. Appeal allowed, Ritchie and Spence JJ.
dissenting.
B. Clive Bynoe, Q.C., for the appellants.
E.G. Hachborn, for the respondent.
[Page 706]
The judgment of Laskin C.J. and Martland,
Pigeon, Dickson, Beetz, Estey and Pratte JJ. was delivered by
ESTEY J.—The Ontario Court of Appeal dismissed
an appeal from the conviction of the appellants on a charge of keeping a common
gaming house contrary to s. 185(1) of the Criminal Code. On the hearing
of the appeal therefrom, the argument in this Court was limited to the question
as to whether the interpretation of the term “common gaming house” by the
Ontario Appeal Court was right in law, that Court having interpreted the term
in such a way as to permit a conviction where the premises in question had been
used by the accused on only one occasion. Put in its simplest term, the
contention of the appellants was that a place could not be a common gaming
house in the absence of evidence that it was “kept” or “used” frequently or in
an habitual manner for purposes prohibited by the Criminal Code.
Section 179 of the Code defines a
common gaming house as follows:
“common gaming house” means a place that is
(a) kept for gain to which
persons resort for the purpose of playing games, or
(b) kept or used for the
purpose of playing games
(i) in which a bank is kept by one or more
but not all of the players,
(ii) 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,
(iii) 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
(iv) 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;
The facts are set out by Martin J.A., writing on
behalf of the Court of Appeal, reported at (1976), 14 O.R. (2d) 604, and need
not be repeated here.
The Courts in this country, and in dealing with
similar statutes, the Courts in the United Kingdom, Australia and elsewhere,
have interpreted the word “kept” as it is employed in subs, (a) of
the definition as connoting frequent or habitual activ-
[Page 707]
ity. The evidence before the learned trial judge
in these proceedings indicated a single use of the arena for gambling purposes.
Consequently, the Crown, in this circumstance, has argued that the arena was a
common gaming house within the meaning of that term as defined in subs, (b)
above, that is, that the arena had been “kept or used” for the specified prohibited
purposes.
Martin J.A., delivering judgment on behalf of
the Court of Appeal, concluded that such a single use of the premises would
suffice to bring the arena within the definition of a common gaming house so
long as the gaming activities were “carried on in a place in the way of a
business by those conducting such activities”. This is the crux of the
interpretative exercise performed by the Court of Appeal and with which, with
the greatest respect, I am unable to agree.
It must be conceded at once that if the second
definition of common gaming house (subs. (b) above) were to be
interpreted in isolation and not in tandem with subs. (a) above,
such a construction would not be unreasonable. The definition has two parts, (a)
and (b), the first of which defines a place “kept for gain”. In
construing the word “used”, Martin J.A. referred to a decision of Salmond J. in
Weathered v. Fitzgibbon. It
should be noted, however, that this decision was made in relation to a statute
(The Gaming Act, 1908) which did not include an alternate provision
comparable to the first part of the definition of a common gaming house, that
is, a place kept for gain.
It is unreasonable, in my opinion, to import a
business purpose test into the second definition in the face of the express
words employed by Parliament in the immediately preceding portion of the
definition which imports the closely related notion of gain. That requirement
has for many years been interpreted loosely as “kept for business purposes” (vide
R. v. James; R.
v. Hoeltje. More
importantly, other provisions in this part of the Criminal Code deal
expressly with the offences of engaging
[Page 708]
in the business of betting or placing or
agreeing to place bets on behalf of others. The interpretation of the word
“use” by the Court below in effect creates a new offence of engaging in the
business of gaming once the prohibited activities can be proven to have been
localized to the degree necessary to meet the definition of the word “place” in
the Code.
In addition, it should be observed that the
Courts have held, even in the case of the “business offences”, that there must
be a “course of conduct” amounting to the carrying on of a business in order to
justify a conviction for engaging in the business of betting and that, for
these purposes, an isolated act will not suffice (vide R. v. Hynes).
In view of the first definition of a “common
gaming house” in s. 179, and taking into account the specific offences related
to engaging in business activities in this field, it is difficult to conclude
that Parliament, in omitting any reference to “gain”, in the second or
alternative definition of “common gaming house” could have intended that the
meaning attributed to it by the Court of Appeal below should be imported into
this part of the definition section.
The second proposition fundamental to the
judgment of the Court of Appeal in interpreting the term “kept or used” as
employed by Parliament in the definition of “common gaming house”, is that some
meaning must be assigned to the word “used” other than that assigned to the
word “kept” which, as we have already noted, has been interpreted by the Courts
for many years as connoting an habitual or repeated act of gaming. Otherwise,
there would have been no reason for Parliament to have employed both words in
this alternative definition. The Court then concluded that “used” in contrast
to “kept” indicated a single or isolated use of the premises for the prohibited
purposes and, therefore, a single use would be sufficient to support a
conviction. Such an analysis depends, of course, on a preliminary determination
that the two words are referable to the same sort of activity and to the same
class of actor. Turning
[Page 709]
back to the question as to whether or not “used”
has been employed by the legislative draftsman in contradistinction to “kept”
(which latter term is based in the context of repeated or habitual use), it is
helpful to examine several related provisions of the Criminal Code which
indicate that the words “kept” and “used” have different meanings apart
altogether from plurality and singularity as assigned to them by the Court of
Appeal below.
“Keeper”, in s. 179 of the Code, is
defined so as to include a person who:
(a) is an owner or occupier
of a place,
(b) assists or acts on behalf
of an owner or occupier of a place,
(c) appears to be, or to
assist or act on behalf of an owner or occupier of a place,
(d) has the care or
management of a place, or
(e) uses a place permanently
or temporarily, with or without the consent of the owner or occupier;
In R. v. Kerim, Martland J., speaking also for
Ritchie and Cartwright JJ., held that a person may be convicted under what is
now s. 185(1) only where there is “…some act of participation in the wrongful
use of the place…” (at p. 131). The combined effect of the definition of
“keeper” in s. 179, and the interpretation of the word “keeps” in s. 185(1),
laid down in R. v. Kerim, supra, suggests that a place is “kept” by a
person who allows others to use it for a prohibited purpose. It is observed
that the definition of “keeper” employs the word “use” in connection with both
the words “permanently” and “temporarily”. That construction is reinforced by
s. 185(2)(b) which imposes a lesser liability on a “keeper” who does not
himself participate in (that is, use the premises for) the illegal activities
but merely “knowingly permits a place to be used” for the purposes of a common
gaming house.
Conversely, the word “used” in the definition of
a common gaming house is directed not at the person in control of the place who
makes it available to others, but rather at the person conducting
[Page 710]
the forbidden activities, whether or not he is a
“keeper” who keeps the place for the purposes condemned by s. 185(1).
Accordingly, one should not compare “kept” and “used” in an attempt to find a
difference in meaning based on frequency of use. The two words refer to
different activities which in some cases are carried on by different persons.
These words describe in their employment in connection with gaming activities,
two separate and distinct roles, the one being partly active and partly passive
(“kept”), and the other (“use”) being active.
It, therefore, follows in the interpretative
sequence that a Court must next determine whether the word “used” employed in
the above sense properly connotes either a single use or repeated, frequent, or
habitual use.
The words “used” and “kept” have, when assigned
the foregoing meanings, at least in some contexts, the same connotation in the
sense of a requirement of a repeated action. The word “used”, on the other
hand, may in some applications indicate a single use.
In the Oxford English Dictionary, “used”
is defined as follows:
“That is or has been made use of;
utilized.”
In ordinary speech, the past participle “used”
employed with the present tense of the verb ‘to be’ indicates a repeated use;
in contrast perhaps to the past and imperfect tenses. The definition of ‘common
gaming house’ employs the former:
“…means a place that is…used for the
purpose of playing games…”
Applying the dictionary terms mentioned, the
word “used” might be replaced with “that is made use of”. The plain meaning in
ordinary parlance requires a practice of so employing the premises, or at least
a practice consisting of more than one use or occasion in order to qualify
within the definition. In my view, the application of the definition to embrace
the circumstances of this case would be to put an unnatural extension upon the
simple language form used to describe the “place” which the accused must “keep”
under s. 185(1) in order to constitute the offence.
[Page 711]
This interpretation of s. 179(1) is reinforced
by other provisions of the Code relating to disorderly houses. The first
is the definition of a “common betting house”, which is defined in s. 179 of
the Code as follows:
“common betting house” means a place that
is opened, kept or used for the purposes of
(a) enabling, encouraging or
assisting persons who resort thereto to bet between themselves or with the
keeper, or
(b) enabling any person to
receive, record, register, transmit or pay bets or to announce the results of
betting.
It has been generally held by the Courts over
the years that ‘resorting’ connotes habitual or frequent activity; vide
Patterson v. The Queen, where
the expression is discussed at p. 162 with reference to a ‘common bawdy house’.
It is impossible to see how a place can be “used” (once) as a common betting
house for certain purposes by persons who “resort thereto” (frequently or
habitually). It is, of course, possible that the word “used” in the definition
of a common betting house was intended to have a different meaning than the
same word in the case of a common gaming house in the same subsection, but that
surely is highly unlikely.
The second provision of the Criminal Code which
reinforces the construction of ‘use’ as connoting frequent or habitual activity
is the charging section of the Code, (s. 185) which, in express
terms, makes it an offence not to ‘use’ a place, but rather provides that
“everyone who keeps a common gaming house…”, which word ‘keeps’, on authority,
as mentioned above, connotes frequent or habitual behaviour.
This conclusion as to the proper construction of
the word “used” as employed in the definition of ‘common gaming house’ in s.
179 of the Code is further reinforced by an examination of the
historical antecedents and development of the offences relating to disorderly
houses. These offences are collectively dealt with in Part V of the Code. This
task was ably carried out by the learned trial judge in the case at bar with
refer-
[Page 712]
ence to common gaming houses, and it is
sufficient in this regard to refer to that part of his reasons for judgment in
which he discussed this point:
Historically, the keeping of a common
gaming house was also a common or public nuisance, as distinct from a private
nuisance, and as such was also an offence, indictable as a misdemeanour, at
common law. Common gaming houses were said to be “detrimental to the public, as
they promote cheating and other corrupt practices; and incite to idleness and
avaricious ways of gaining property persons whose time might otherwise be
employed for the good of the community.” Bac. Abr. Tit. “Nuisances” (4);
1 Hawk. c. 75, s. 6; Russell on Crime, 12th ed., vol. 2, p. 1442.
The authorities leave little, if any, doubt that
the mischief to which these offences were directed was not the betting, gaming
and prostitution per se, but rather the harm to the interests of the
community in which such activities were carried on in a notorious and habitual
manner. (Vide Jenks v. Turpin.)
A similar historical analysis of the offence of
keeping a common bawdy house was carried out by Schroeder J.A. in R. v. Patterson, at p. 46 C.C.C., cited with approval by
this Court on appeal [1968] S.C.R. 157 at p. 161:
Viewed in historical perspective the
keeping of a brothel or a common bawdy-house was a common nuisance and, as
such, was indictable as a misdemeanour at common law. It was treated as a
public nuisance “not only in respect of its endangering the public peace by
drawing together dissolute and debauched persons but also in respect of its
apparent tendency to corrupt the manners of both sexes, by such an open
profession of lewdness”: Russell on Crime, 12th ed., vol. 2, p. 1440. It
consisted of maintaining a place to the disturbance of the neighbourhood or for
purposes which were injurious to the public morals, health, convenience or
safety. The maintenance of a nuisance of this character later became the
subject of legislation in England in 1752 when the Disorderly Houses Act, 1752
(U.K.), c. 36, was enacted and the offence is now embraced (sic) in the
provisions of the Sexual Offences Act, 1956 (U.K.), c. 69, s. 33, the
English counterpart of s. 168 (1) (b), (h) and (i) of our Criminal Code.
[Page 713]
For these reasons, I would allow the appeal, set
aside the conviction of the appellants, and direct the acquittal of the
appellants.
The judgment of Ritchie and Spence JJ. was
delivered by
SPENCE J. (dissenting)—This is an
appeal, by leave, from the judgment of the Court of Appeal for Ontario
pronounced on the 15th of September 1976 whereby that Court dismissed an appeal
from the judgment of Cannon, Prov. Court Judge, convicting the four appellants
upon a charge of keeping a common gaming house contrary to s. 185 of the Criminal
Code.
The reasons of Martin J.A., giving judgment for
the Court of Appeal for Ontario,
are reported in (1976), 14 O.R. (2d) 604, and contain a complete recital of the
agreed statement of facts which, therefore, need not be repeated here.
The single issue before the Court of Appeal for
Ontario and this Court was whether a place could be found to be a common gaming
house within the definition contained in s. 179(1) of the Criminal Code upon
proof of the use of such place for the purpose of gaming on only one occasion.
Neither in the Court of Appeal nor in this Court was any argument advanced that
the accused were others than keepers if the place could be found to be a common
gaming house within the section.
Section 179(1) of the Criminal Code defines
“common bawdy-house” and “common gaming house” in these words:
“common bawdy-house” means a place that is
(a) kept or occupied, or
(b) resorted to by one or
more persons for the purpose of prostitution or the practice of acts of indecency;
“common betting house” means a place that
is opened, kept or used for the purpose of
(a) enabling, encouraging or
assisting persons who resort thereto to bet between themselves or with the
keeper, or
(b) enabling any person to
receive, record, register, transmit or pay bets or to announce the results of
betting;
“common gaming house” means a place that is
[Page 714]
(a) kept for gain to which
persons resort for the purpose of playing games, or
(b) kept or used for the
purpose of playing games
(i) in which a bank is kept by one or more
but not all of the players,
(ii) 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,
(iii) 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
(iv) 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;
With respect, I am in complete agreement with
the analysis of the effect of these definitions outlined so clearly by Martin
J.A. in his reasons and I share his view that the requirement of frequent
habitual use of the place before there could be a conviction for keeping a common
bawdy-house as made by this Court in Patterson v. The Queen, does not apply to a prosecution
for keeping a common gaming house. As Martin J.A. points out, the
addition of the word “use” in para. (b) of the definition of
“common gaming house” must be significant and its appearance as an alternative
to “kept” may properly be interpreted as a legislative authorization of
conviction without proof of the frequent or habitual use required by the words
“kept” and “resort” in para. (a) of the definition of “common
gaming house” and “kept” in para. (b) thereof or the words
“kept” or “occupied” or “resorted to” in the definition of “common
bawdy-house”.
Martin J.A. saw the danger that the
interpretation of the word “use” as encompassing employment of the place on a
single occasion might bring within the prohibition in the section the case
of a few friends having a friendly game of say black jack and simply for
convenience or because of his skill leaving one of them to act as banker. The
learned justice on appeal took some encouragement from the words of Salmond J.
in Weathered v. Fitzgibbon, where,
interpreting the words
[Page 715]
“opened, kept or used” at p. 342, he repeated
his own words from an earlier decision:
A man does not keep an illegal
betting-house until and unless his betting transactions are so far generalized
as to the persons with whom he bets, and so far localized as to the place where
they are made, that he can properly be said to maintain a betting
establishment—that is to say, to carry on the business of betting on premises
which he owns, occupies, or keeps for that purpose.
I do not find it necessary to decide such an
issue in dealing with the present appeal. As long ago as 1875, Lord Russell of
Killowen when faced with such a situation said in R. v. Davies, at p. 202:
Those are in substance the facts of the
case, and, looking to the purpose of the Act under which this prosecution is
instituted, it is in my opinion monstrous to say that the case falls at all
within the mischief or within the provisions of the statute, which was intended
to prevent the user of a house as a gaming house.
However, as I have said, the issue does not
arise in the present appeal. The accused were not friends engaged in a quiet
game but were conducting a very business-like operation. Indeed, as Martin J.A.
infers, the accused might have been carrying out the very operation that the
legislators aimed at when they added the alternative word “used” to the word
“kept” in para. (b) of the definition of common gaming house. The
“floating crap game” is not a recent invention.
I would dismiss the appeal.
Appeal allowed, RITCHIE and SPENCE
JJ., dissenting.
Solicitor for the appellants: B. Clive
Bynoe, Toronto.
Solicitor for the respondent: Ministry of
the Attorney General of Ontario,
Toronto.
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