DATE: 2002-01-18 DOCKET: C34761

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. BALANCE GROUP INTERNATIONAL TRADING LTD. (Appellant)

BEFORE:

ROSENBERG, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Scott K. Fenton for the appellant Scott C. Hutchison for the respondent

HEARD:

January 8, 2002

On appeal from his conviction by Judge Charles H. Vaillancourt on July 20, 2000.

ENDORSEMENT

[1] Notwithstanding Mr. Fenton’s very able submissions, we have not been persuaded that there is a basis for interfering with the trial judge’s conclusion that the two crane games were games of mixed chance and skill, thus, falling within the prohibition in s. 206(1)(f) of the Criminal Code.[^1] The test to be applied as set out in cases such as Bailey v. The King (1938), 1938 387 (ON CA), 70 C.C.C. 342 (S.C.C.) and Rex v. Athonas (1931), 1931 488 (ON CA), 56 C.C.C. 146 (Ont. S.C. App. Div.) is whether the game, as intended to be played by the ordinary person likely to play it, is a game of skill or mixed chance and skill.

[2] In our view, the amount of control exercised by the ordinary player was so minimal that the game operated as one of chance or at best mixed chance and skill. The evidence established that the average player simply could not exercise sufficient skill to compensate for the other elements of the game that were wholly beyond the power of the player to influence. The ability of the player to control the crane’s lateral movement gave the appearance of an element of skill. In reality, however, as a matter of common sense the game would be played as a game of chance. The expert evidence adduced by the Crown and accepted by the trial judge demonstrated that there were too many other variables that were far more important than the positioning of the crane that would overcome what little skill the operator might bring to the game.

[3] We agree with the appellant that simply because a game has an increased level of difficulty does not necessarily mean the game will be viewed as one of chance or mixed skill and chance. We also accept that merely because some elements of the game are out of the control of the player does not make the game one of mixed chance and skill. Where, as in this case, however, virtually all of the elements of the game are out of the control of the player, it was open to the trial judge to conclude as he did that the game is one of mixed chance and skill. As the trial judge said, as a matter of common sense the games are “games of mixed skill and chance with an overwhelming degree of chance and merely a dash of skill”. This was not a case where there were some unpredictable elements that might occasionally defeat the player’s skill, but the systematic resort to chance: Ross, Banks and Dyson v. The Queen, 1968 21 (SCC), [1969] 1 C.C.C. 1 (S.C.C.) at 17.

[4] Accordingly, the appeal is dismissed.

SIGNED BY: "M. Rosenberg J.A." "S. T. Goudge J.A." "K. Feldman J.A."

[^1]: The exemption in s. 206(3) for annual fairs or exhibitions had no application.