DATE: 20011003 DOCKET: C33474
COURT OF APPEAL FOR ONTARIO
FINLAYSON, WEILER AND GOUDGE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Curt Flanagan And Tina Yuen for the appellant
Appellant
- and -
MARSHALL JOURDAIN
Donald R. Colborne for the respondent
Respondent
Heard: June 14, 2001
On appeal from the acquittal of Judge Ron Lester dated December 13, 1999.
GOUDGE J.A.:
[1] In 1998 Marshall Jourdain worked as the manager of a bingo hall on the Couchiching First Nation Reserve near Fort Francis, Ontario. As a result of activities conducted at the bingo hall, he was charged on June 9, 1998 with keeping a common gaming house. He was tried in June 1999 and was found not guilty in a decision dated December 13, 1999.
[2] This is the appeal by the Crown from that acquittal. It raises four issues. First, Mr. Jourdain moves to quash the appeal for delay. Second, he argues that the Crown’s appeal is not based on a question of law alone and therefore no appeal lies from his acquittal. Third, the Crown submits that in acquitting Mr. Jourdain the trial judge committed reversible error. Fourth is the question of the appropriate remedy if the appeal from acquittal is allowed.
[3] For the reasons that follow, I have concluded that the appeal should not be dismissed for delay and that it does raise a question of law alone. Further, I think the trial judge erred in law and that the acquittal must, therefore, be set aside. In the circumstances, the appropriate remedy is a new trial.
THE FACTS
[4] Prior to October 17, 1997 the Couchiching First Nation Bingo Palace (“Bingo Palace”) was licensed by the Province of Ontario, pursuant to the Gaming Control Act, S.O. 1992, c. 24 as amended, to carry on bingo and other gambling activities such as the sale of “break open tickets”. However, on that date its licence was suspended and subsequently revoked by the provincial regulator, the Alcohol and Gaming Commission.
[5] On March 18, 1998 the police served a notice on the Band Chief that the continued conduct of bingos and selling of “break open tickets” may result in increased enforcement action. Nevertheless, the Bingo Palace continued both activities. As a result, Mr. Jourdain, as manager of the facility, was charged with keeping a common gaming house contrary to s. 201(1) of the Criminal Code.
[6] At trial the defence argued that the Bingo Palace was not required to comply with the provincial gaming legislation, as the registration fee imposed by the legislation was in reality a tax, and therefore, inapplicable to the Bingo Palace pursuant to s. 87 of the Indian Act, R.S.C. 1985, c. I-5. Mr. Jourdain says he could not lawfully be convicted under s. 201(1) of the Code, because that law required him to give up his right to tax exemption in order to acquire protection from criminal prosecution. This position draws on the reasoning of the Saskatchewan Court of Appeal in R. v. Bob (1991), 1991 CanLII 7965 (SK CA), 3 C.R. (4th) 348.
[7] The position of the Crown at trial was that all gaming is illegal unless specifically exempted under the Criminal Code. As the Bingo Palace was not complying with the provincial regulatory scheme, it could not benefit from any Code exemptions and was therefore operating illegally.
[8] The trial judge did not address the arguments raised by the parties. Rather, he disposed of the case by following R. v. Boggs, 1981 CanLII 39 (SCC), [1981] 1 S.C.R. 49, (1981) 58 C.C.C. (2d) 7 (S.C.C.). The core of his reasons read as follows:
Issues to be Determined
(1) The issue as to whether the licensing scheme set up by the Province of Ontario is in reality a system of taxation and therefore inapplicable to the First Nations Territories was the focus of the greatest part of the submissions of counsel. It is an interesting issue and must in the court’s view be determined in the very near future to give certainty to those operating or seeking to operate similar facilities on or off First Nations Communities.
(2) It is my view that this case must be resolved on another ground, making the determination of the “Licensing or taxation” issue moot.
(3) The issue that concerns this court is whether the criminal law is being used here to enforce compliance with the Provincial regulatory scheme. It is noted that no Notice of Constitutional Question was served in this case and little time was spent in reference to it in argument. The court has not been asked to declare the gaming sections of the Criminal Code to be inoperative, and in the absence of that issue being raised in the appropriate manner, has no authority to do so.
(7) Similarly, it may seem that what is objected to here is the failure or refusal of the operators of the subject Bingo Palace to comply with the Provincial regulatory scheme, not that they are operating a gaming house from which the public needs the protection afforded by the application of the Criminal Code.
(8) On the facts of this case, I find that while the accused has not complied with the province’s licensing regulations, he is not subject to prosecution under the Criminal Code by reason of that non-compliance. I find him not guilty.
ANALYSIS
[9] The respondent’s motion to quash the appeal for delay is based on the following chronology. Mr. Jourdain was acquitted on December 13, 1999. The Crown served its notice of appeal on January 7, 2000. The transcripts were received on February 1, 2000. The time for perfection allowed by rule 18 of the Criminal Appeal Rules expired on May 3, 2000. The appeal was finally perfected on January 12, 2001.
[10] There is no doubt that there is a higher onus on the Crown than on the accused to comply with the rules of this court, particularly when it is appealing an acquittal. See R. v. Walsh, [1998] O.J. No.4356 (C.A.). The explanation offered for the delay, namely the complexity of the appeal, its potentially far reaching impact, and the need therefore to consult with other branches of government, does not carry the Crown very far. Nor does the Crown dispute that the respondent has suffered stress, anxiety and uncertainty as a result of the delay.
[11] On the other side of the scales there has been no effect on the respondent’s liberty, or on his ability to make full answer and defence given his fundamental position that he cannot be required to give up his right to tax exemption to avoid prosecution. Moreover, the respondent took no steps over this timeframe to hold the Crown to the required time lines. Finally, and most importantly, the issue raised by this case, namely, the application of the principles in R. v. Bob, supra, to these facts, is one of significant public importance. In all the circumstances, I am of the view that the draconian remedy of quashing the appeal is not warranted. The motion to quash is therefore dismissed.
[12] The respondent also argues that this appeal from acquittal does not involve a question of law alone as required by s. 676(1)(a) as of the Criminal Code. I disagree. The ultimate finding of the trial judge is that s. 201(1) of the Code does not extend to someone who simply fails or refuses to comply with the provincial scheme regulating gambling. The Crown challenges the correctness of this proposition of law in this appeal. The requirement of s. 676(1)(a) of the Code is clearly met since the appeal raises a question of law alone.
[13] Turning to the merits of the appeal, I agree with the Crown that the acquittal is founded on an error of law and therefore cannot stand. Although R. v. Boggs, supra, was not argued by either party at trial, the trial judge applied it to the case before him. In that case, the Supreme Court of Canada found that the Criminal Code provisions went too far in making it an offence to drive while disqualified even if the reason for disqualification was for a purely provincial purpose unrelated to public safety. Hence, the Code provision was found unconstitutional.
[14] The trial judge applied this principle and acquitted the respondent on the basis that he had simply breached the provincial regulatory scheme for gambling and that Parliament could not criminalize such activity. However, in R. v. Furtney, 1991 CanLII 30 (SCC), [1991] 3 S.C.R. 89, (1991), 66 C.C.C. (3d) 498, the Supreme Court of Canada decided otherwise. That court made clear that the scheme to prohibit gambling, except as provincially regulated, is valid criminal law, constitutionally unimpeachable, and is not an improper delegation to the provinces by Parliament of its constitutional law authority. More recently, this court put an end to any suggestion that the passage of time has made commercial gaming any less criminal an activity then it ever has been. See R. v. Andriopoulos, [1994] O.J. No. 2314 (C.A.). I therefore conclude that the trial judge based the acquittal of the respondent on an error of law when he concluded that the criminal law could not extend to someone who merely failed or refused to comply with the provincial scheme regulating gambling.
[15] With considerable ingenuity, Mr. Colborne offered two other arguments to sustain the decision of the trial judge.
[16] First, he argued that in determining that s. 201(1) of the Code did not apply to the respondent, the trial judge was simply reading down the legislation as a matter of statutory interpretation rather than constitutional analysis.
[17] I cannot agree. Although the trial judge said that he had not been asked to declare the gaming sections of the Code inoperative and had no authority to do so, his reliance on R. v. Boggs, supra, and his conclusion that the criminal law cannot punish the simple breach of a provincial regulatory scheme, in these circumstances, clearly reflects a constitutional analysis. The trial judge does not purport to reach his conclusion merely by interpreting the language of s. 201(1). Nor could any reasonable interpretation of the words of that section alone result in an acquittal in these circumstances, where the failure of the respondent to comply with the provincial regulatory scheme was beyond dispute.
[18] Mr. Colborne’s second argument was that the trial judge was doing no more than finding that the respondent lacked the requisite criminal intent or mens rea for the offence.
[19] Again I disagree. There is nothing in the reasons of the trial judge to suggest that he made such a finding or that such a finding was the basis of his decision. Nor could it have been, since the intention of the respondent to operate the bingo hall in violation of the provincial regulatory scheme was clear.
[20] Since the acquittal cannot stand there remains only the question of remedy. In their original factums both parties urged the court to adjudicate the issue placed before the trial judge, but which he by-passed – namely, whether the reasoning in R. v. Bob, supra, provided the respondent with a defence to this charge. In its reply factum the Crown altered its position and urged us not to do so.
[21] In my view the latter position is the appropriate one for this court to take in this case. The trial judge made none of the findings of fact that would be necessary to properly resolve this issue. Nor is the record sufficiently clear and complete that this court can do so. This issue is too important to be decided on the basis of factual guesswork at the appellate level. There must be a new trial.
[22] For these reasons therefore, I would allow the appeal, set aside the acquittal and direct a new trial.
Released: October 3, 2001 “GDF”
“S.T. Goudge J.A.”
“I agree G.D. Finlayson J.A.”
“I agree K.M. Weiler J.A.”