201

Keeping gaming or betting house

201 (1) Every person who keeps a common gaming house or common betting house is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.

Person found in or owner permitting use

(2) Every one who

(a) is found, without lawful excuse, in a common gaming house or common betting house, or

(b) as owner, landlord, lessor, tenant, occupier or agent, knowingly permits a place to be let or used for the purposes of a common gaming house or common betting house,

is guilty of an offence punishable on summary conviction.

Annotations | French

  • Section 201

     

  • The terms “common betting house” and “common gaming house” are defined in s 197(1), and an exception for the term “common gaming house” is described in s 197(2). According to s 197(3), the onus is on the accused to prove that a place is not a common gaming house.

     

  • The exception in s 197(2) applies to incorporated genuine social clubs. An incorporated club that operates a “common gaming house” that is open to the public does not fall under the exception. A social club that maintains a custom where the winning member donates a portion of the winnings to the club also does not fall under the exceptions under sections 197(2)(a) and 197(2)(b) (R v MacDonald, [1966] SCR 3; R v Iaconetti, 2001 ABPC 168).

     

  • The definitions of “common betting house” and “common gaming house” do not include places that are used on only one occasion for the prohibited activities because the terms “kept” and “used” require proof of frequent or habitual use. An exception to this is if the accused has used another place on another occasion for the prohibited activities, according to s 197(4) (R v Rockert, [1978] 2 SCR 704; R v Grainger (1978), 42 CCC (2d) 119 (Ont CA)).

     

  • The term “keeper” is defined in s 197(1).

     

  • The owner or manager of a place where the prohibited activity occurs is not necessarily “keeping” a gaming or betting house for the purposes of section 201(1). This offence requires the accused to participate in the operation of the prohibited activity in some way. Selling refreshments on the premises while the prohibited activity is taking place does not amount to participation in the activity itself. An owner or manager of a place who does not participate in the prohibited activity may be convicted under section 201(2)(b) (R v Kerim, [1963] SCR 124; R v Corbeil, [1991] 1 SCR 830 at 834).

     

  • Similarly, an employee of a place that is used for prohibited activity is not considered to be “keeping” a gaming or betting house if the employee does not have control over or management of the premises. An employee who does have some degree of control over the premises may be considered to be “keeping” a gaming or betting house (R v Corbeil, [1991] 1 SCR 830 at 834; R v Bragdon (1996), 112 CCC (3d) 91 (NB CA); R v Gardner, 2004 ONCJ 69).

     

  • The term “game” is defined in s 197(1) as a game of chance or mixed chance and skill.

     

  • The definition of “game” includes games where the element of chance is low and the outcome of the game depends more on the participants’ skills. For example, a card game that requires skill to play but the distribution of the cards depends on chance is considered a “game” for the purposes of this section (R v Ross, [1968] SCR 786; Play for Fun Studios Inc v Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648).

     

  • The Offences

     

  • Exceptions to the prohibited activity captured by this section are described in s 204.

     

  • This provision requires proof that the accused is keeping a place for financial gain that is used for the purpose of playing games of chance or games of mixed chance and skill, where participants can win or lose money by wagering on the outcome of the games. An arrangement where the loser of a wager buys the winner a drink is not sufficient to satisfy the final element (R v Di Pietro et al, [1986] 1 SCR 250 at 258, 262).

     

  • For the purposes of this section, a place is kept for financial gain if it is “run as a commercial enterprise for profit.” These gains can include indirect profits from drink sales, or direct profits from participating in the games (R v Turmel (1996), 109 CCC (3d) 162 (Ont CA); R v Di Pietro et al, [1986] 1 SCR 250).

     

  • While wagering is an essential element of the offence of keeping a gaming house, it is not necessary for the accused to receive or participate in the wager. The offence only requires that the accused enabled wagers to be made and evidence of the recording of bets is not necessary (R v Silvestro, [1965] SCR 155).
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