R. v. Kent, [1994] 3 S.C.R. 133

Helen Marie Kent Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Kent

File No.: 23664.

1994: May 30; 1994: September 30.

Present: La Forest, Sopinka, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for nova scotia

Criminal law ‑‑ Keeping gambling devices ‑‑ Whether trial judge erred in law by requiring Crown to prove that devices were actually used for purpose of gambling ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 202(1)(b).

Criminal law ‑‑ Appeals ‑‑ Crown appeal ‑‑ Question of law ‑‑ Whether trial judge erred in law by requiring Crown to prove that devices were actually used for purpose of gambling ‑‑ Whether Court of Appeal erred in setting aside acquittal and ordering new trial ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 676(1)(a).

After three unlicensed video machines were seized from her convenience store, the accused was charged with knowingly allowing devices for gambling to be kept in a place under her control, contrary to s. 202(1)(b) of the Criminal Code. There was no evidence that the machines had actually been used for gambling. At the trial the Crown's expert witness testified that it was clear that "credits" accumulated by a successful player could be traded in for cash. He conceded, however, that the "knock‑off" switches which permitted the machine operator to erase accumulated credits when they were cashed in were not fully functional on two of the machines, and that he was unable to determine whether the third was functional. He also conceded that it may have been possible to use the machines for amusement only. The trial judge noted that the Crown had not adduced any evidence of an actual reward or pay‑out. He stated that the features identified by the expert witness were not conclusive, and expressed uncertainty about whether the machines were kept by the accused "for the purpose of gambling". He accordingly acquitted the accused. The Court of Appeal set aside the acquittal and ordered a new trial. It ruled that the trial judge had erred in his interpretation of s. 202(1)(b) of the Code by requiring the Crown to prove that the machines in question were actually being used "for the purpose of gambling".

Held: The appeal should be allowed and the accused's acquittal restored.

The trial judge clearly harboured a doubt about whether the machines found in the accused's possession were "machine[s] or device[s] for gambling" within the meaning of s. 202(1)(b). This doubt went to the sufficiency of the evidence, and in particular to the question of whether the machines offered a chance of reward. His subsequent statements about the purpose and use of the machines were simply part of his more general observation that it would have been easier for him to draw the inference that the machines were gambling devices had there been evidence of actual gambling. The Crown need not establish the purpose for which the machines were kept, but the trial judge did not at any point rule that the Crown was required to prove that the machines were in fact used for the purpose of gambling as a matter of law. In an appeal from an acquittal, an appellate court's jurisdiction is limited by s. 676(1)(a) of the Code to questions of law alone. The question of whether the proper inference has been drawn by a trial judge from the facts established in evidence is a question of fact, as is evidentiary sufficiency. The trial judge's refusal to draw the inference that the machines were in fact gaming devices was within his exclusive jurisdiction. Since there was no error of law with which the Court of Appeal could interfere in this case, it erred in setting aside the accused's acquittal.

Cases Cited

Disapproved: R. v. Smith (1985), 1985 96 (NB CA), 26 C.C.C. (3d) 53; R. v. Volante (1993), 1993 8519 (ON CA), 14 O.R. (3d) 682; referred to: R. v. Laniel Canada Inc. (1991), 1991 11729 (QC CA), 63 C.C.C. (3d) 574, leave to appeal refused, [1991] 3 S.C.R. ix; R. v. Kerim, 1963 5 (SCC), [1963] S.C.R. 124; R. v. Karavasilis (1980), 1980 2814 (ON CA), 54 C.C.C. (2d) 530; R. v. Gardiner (1971), 1971 1210 (AB SCAD), 2 C.C.C. (2d) 463; R. v. Greenberg (1942), 1942 391 (ON CA), 78 C.C.C. 145; R. v. Wilkes (1930), 1930 460 (ON CA), 55 C.C.C. 1; Roberts v. The King, 1931 81 (SCC), [1931] S.C.R. 417; Lampard v. The Queen, 1969 695 (SCC), [1969] S.C.R. 373; R. v. Warner, 1960 85 (SCC), [1961] S.C.R. 144.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 197(1), 202(1)(b), 676(1)(a).

APPEAL from a judgment of the Nova Scotia Court of Appeal (1993), 1993 NSCA 157, 122 N.S.R. (2d) 348, 338 A.P.R. 348, allowing the Crown's appeal from the acquittal of the accused on a charge of keeping gambling devices and ordering a new trial. Appeal allowed and acquittal restored.

Ralph W. Ripley, for the appellant.

John C. Pearson, for the respondent.

The judgment of the Court was delivered by

Major J. -- The appellant was acquitted by a judge sitting alone of keeping gambling devices contrary to s. 202(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. The Nova Scotia Court of Appeal set aside the acquittal and ordered a new trial.

The issue in this appeal as of right is whether the Court of Appeal properly exercised its jurisdiction to hear an appeal on "a question of law alone" in setting aside the judgment of acquittal: Criminal Code, s. 676(1)(a). In particular, it must be determined whether the trial judge erred in law by requiring the Crown to prove that the devices found in the appellant's possession were actually used for the purpose of gambling.

I. Facts

On May 7, 1992, three "Lucky Eight Line" video machines were seized from the appellant's convenience store in River Hebert, Nova Scotia. These machines were not licensed through the Atlantic Lottery Commission. The police also seized a chocolate bar box containing 28 rolls of quarters, five twenty dollar bills and one fifty dollar bill. The seizures were made pursuant to a valid search warrant.

The appellant was charged under s. 202(1)(b) of the Criminal Code with knowingly allowing to be kept in a place under her control, devices for gambling.

At her trial before Cole Prov. Ct. J. of the Provincial Court of Nova Scotia, the Crown's expert witness testified that various features of the machines indicated that they were gambling devices. He testified that it was clear from these features that "credits" accumulated by a successful player could be traded in for cash. As such, he concluded that the three essential attributes of a gambling machine -- consideration, chance and reward -- existed on the facts. However, the expert conceded that the "knock-off" switches -- i.e., the switches which permitted the machine operator to erase accumulated credits when they were cashed in -- were not fully functional on two of the machines. He was unable to determine whether the "knock-off" switch on the third machine was functional. He also conceded that it may have been possible to use the machines for amusement only. There was no evidence that the machines had actually been used for gambling.

II. The Courts Below

Nova Scotia Provincial Court

In an oral judgment, Cole Prov. Ct. J. noted that the Crown had not adduced any evidence of an actual reward or pay-out. He found that the machines had no independent feature to indicate that a successful player would receive a reward. He stated that the features identified by the expert witness were not conclusive, and expressed the view that "until somebody sees the stakes, it's pretty hard to know for sure, for moral certainty, which they're being used for". He therefore expressed uncertainty about whether the machines were kept by the appellant "for the purpose of gambling". Cole Prov. Ct. J. therefore acquitted the appellant.

Nova Scotia Court of Appeal (1993), 122 N.S.R. (2d) 348 (Jones, Hallett and Pugsley JJ.A.)

Hallett J.A. ruled that the trial judge had erred in his interpretation of s. 202(1)(b) of the Criminal Code by requiring the Crown to prove that the machines in question were actually being used "for the purpose of gambling". He stated that in the absence of evidence of how the machines were being used, the offence would be made out if the Crown proved beyond a reasonable doubt that the appellant "kept in the store devices designed to be gambling devices knowing the devices were gambling devices" (p. 350): R. v. Laniel Canada Inc. (1991), 1991 11729 (QC CA), 63 C.C.C. (3d) 574 (Que. C.A.), leave to appeal refused, [1991] 3 S.C.R. ix. Hallett J.A. ordered a new trial on the question of whether the "Lucky Eight Line" machines were gambling devices. He wrote (at p. 351):

Before the Court of Appeal may exercise its jurisdiction under s. 686(4)(b)(ii) and enter a conviction rather than order a new trial, it must be shown that all the findings necessary to support a verdict of guilty must have been made either explicitly or implicitly or not be in issue: R. v. Cassidy, 1989 25 (SCC), [1989] 2 S.C.R. 345. . . . There is no explicit or implicit finding by the trial judge that the Crown had proved beyond a reasonable doubt that the machines were gambling devices and that the respondent knew this fact. Accordingly the appeal ought to be allowed and a new trial ordered.

III. Issue

The only issue in this appeal is whether the Court of Appeal properly exercised its jurisdiction to entertain an appeal on "a question of law alone", when it overturned the appellant's acquittal: Criminal Code, s. 676(1)(a). Did the trial judge err in law by requiring the Crown to establish that the machines were actually used for the purpose of gambling?

IV. Analysis

Section 202(1)(b) of the Criminal Code makes it an indictable offence to keep a machine or device for gambling in a place under one's control. The section reads:

202. (1) Every one commits an offence who

(b) imports, makes, buys, sells, rents, leases, hires or keeps, exhibits, employs or knowingly allows to be kept, exhibited or employed in any place under his control any device or apparatus for the purpose of recording or registering bets or selling a pool, or any machine or device for gambling or betting; [Emphasis added.]

In order to obtain a conviction for the "keeping" offence in s. 202(1)(b), the Crown was required to prove (1) that the appellant kept devices in a place under her control (actus reus); (2) that these devices were gambling devices (actus reus); and (3) that the appellant knew that the devices were gambling devices and knowingly kept them (mens rea).

The Crown was not required to show that the machines were actually used for the purpose of gambling. The prohibition in s. 202(1)(b) is against the keeping of gambling machines ("machine or device for gambling or betting" or "une machine ou un dispositif de jeu ou de pari"), regardless of how they are used: R. v. Laniel Canada Inc., supra. The prohibition is analogous to a prohibition against possession: see s. 197(1) of the Criminal Code; R. v. Kerim, 1963 5 (SCC), [1963] S.C.R. 124; R. v. Karavasilis (1980), 1980 2814 (ON CA), 54 C.C.C. (2d) 530 (Ont. C.A.).

To the extent that the cases of R. v. Smith (1985), 1985 96 (NB CA), 26 C.C.C. (3d) 53 (N.B.C.A.), and R. v. Volante (1993), 1993 8519 (ON CA), 14 O.R. (3d) 682 (Ont. C.A.), application for leave discontinued, [1993] 4 S.C.R. vii, stand for the proposition that the Crown must establish the purpose for which the machines are kept, they can no longer be considered good law.

To say that the Crown was not required to establish that gambling actually occurred in order to make out the offence in s. 202(1)(b) is not to say that evidence of the use to which the machines were put was irrelevant. Evidence that the machines were actually used for gambling was relevant and probative on the issue of whether the machines in question were in fact gambling devices. As the court held in R. v. Laniel Canada Inc., supra, [translation] "[t]he issue of the purpose for which the machine is to be used arises in respect of the actus reus, that is whether the machine is truly designed for gambling" (p. 575). The case law demonstrates that courts will often look to the actual use of a device in order to determine whether it is a "machine or device for gambling" within the meaning of s. 202(1)(b) as an evidentiary matter. In R. v. Gardiner (1971), 1971 1210 (AB SCAD), 2 C.C.C. (2d) 463 (Alta. S.C.A.D.), the court held that nine decks of cards, standing alone, were equivocal, and that it was necessary to take into account "the surrounding circumstances" in order to convict an accused for the offence of keeping devices for gambling. In R. v. Greenberg (1942), 1942 391 (ON CA), 78 C.C.C. 145 (Ont. C.A.), the court ruled that it could not infer that machines which could be used either for gambling or for amusement were gambling devices, in the absence of evidence of their use or intended use.

In his judgment, the trial judge made reference to the purpose and use for which the machines were kept. These references would seem to support the Crown's position that the trial judge read an extra element of "purpose" into the offence. However, at other times in the judgment, the trial judge spoke of his uncertainty about whether the machines were inherently "machine[s] or device[s] for gambling" within the meaning of the Code. The confusion between these two concepts -- i.e., between the inherent nature of the machines and the purpose for which they are kept -- is manifest in the following passage:

. . . it is still a distinct possibility that I am in no position to rule out that the machine or machines could have been used for what they state on the front, or could be used for amusement only. For me to conclude beyond a reasonable doubt that the purpose and only purpose for which these machines were kept were for the purpose of gambling, I feel that the evidence would have to be stronger.

Certainly the evidence that was sighted [sic] to me or presented to [sic] leans in that direction -- that they are gambling devices, particularly the accounting feature and the lack of skill required to use them. But the accounting feature could still be used in order to split the take on the machine without the machines being a gambling device, but simply something for amusement. [Emphasis added.]

The ambiguities contained in the trial judgment can be resolved if the judgment is read in the whole context of the record at trial. As in the cases of Gardiner, supra, and Greenberg, supra, it is clear that the trial judge's concern throughout the trial was not with an external "purpose" requirement but rather with whether the machines were "machine[s] or device[s] for gambling" within the meaning of the Code. "Gambling" or "gaming" must involve a chance of gain and a risk of loss: R. v. Wilkes (1930), 1930 460 (ON CA), 55 C.C.C. 1 (Ont. C.A.), and Roberts v. The King, 1931 81 (SCC), [1931] S.C.R. 417. The expert evidence rested on the premise that credits obtained would be cashed in. However, this evidence about the features of the machine did not convince the trial judge that there was a chance of reward or gain. The expert conceded that the reward feature was not clear from an examination of the machine:

THE COURT: So as you stand and look at these machines in a vacuum, how do you know that the store owner's going to honour the credits?

A. As you look at the machine, there's no way of telling.

THE COURT: So if the store owner doesn't honour the credits, where's the problem in somebody pumping money into that thing?

A. It becomes, the problem becomes the design of the machines itself. It's designed to . . .

THE COURT: No, in terms of gambling. Where's the gambling? If, if somebody can pump money into the machine, get a bunch of credits, and there's no guarantee, nobody knows whether or not anybody's going to pay them any money or not for their credits.

A. Well, as I said earlier, what I maintain is that the credits have a value.

THE COURT: Uh-hmm.

A. Because they, at a winning number of credits . . .

THE COURT: But you don't know that from looking at the machine?

A. Not from looking at the machine, you have to pretty well play it. [Emphasis added.]

This passage makes it clear that the trial judge harboured a doubt about whether the machines found in the appellant's possession were "machine[s] or device[s] for gambling" within the meaning of s. 202(1)(b). This doubt went to the sufficiency of the evidence, and in particular to the question of whether the machine offered a chance of reward. His subsequent statements about the purpose and use of the machines were simply part of his more general observation that it would have been easier for him to draw the inference that the machines were gambling devices had there been evidence of actual gambling. In this regard, the trial judge stated:

As I said during argument, it might be a cumbersome, but it would still be a well recognized and simple matter, in order to prove a case of possessing gambling machines, to tender evidence that that's what they were used for, because then the inference would easily be drawn that that's what they were. The inference cannot so easily and conclusively be drawn when all you have is the machine itself and its features, and one of those features is not the ability, on its own, to pay the reward which is being alleged.

The trial judge did not at any point rule that the Crown was required to prove that the machines were in fact used for the purpose of gambling as a matter of law. Indeed, the trial judge rejected defence counsel's suggestion that he should follow the case of R. v. Smith, supra, where it was held that the Crown had to prove "purpose" in order to obtain a conviction under s. 202(1)(b). His response to counsel's reliance on Smith was as follows:

THE COURT: With all due respect to the New Brunswick Court of Appeal [in Smith], I think they're taking some liberties with the plain language of the statute, but in any event.

There was evidence from which the trial judge might have drawn the inference that the machines were "machine[s] or device[s] for gambling or betting". In particular, the expert evidence about the features of the machines supported such an inference. However, the expert's evidence had its weaknesses -- for example, the expert conceded that the knock-off switches on two of the machines were not fully functional, and that he was unable to ascertain whether the third functioned. In the end, the expert evidence failed to convince the trial judge that the machines offered a "chance of reward". He concluded that the evidence about the nature of the machines was equivocal, and that the machines might simply be amusement devices. After noting that evidence of actual gambling might permit him to draw the inference that the machines were gambling devices, the trial judge observed:

The Court shouldn't have to speculate and infer to the degree ... that it is necessary here. And I don't think the opinion of any expert, from experience with such machines, can take place of a reasonable interpretation of what the Court sees looking at it objectively. Again I say there may be many instances where machines having all these features are gambling machines and are used for that, but one can also conceive, with a little more difficulty, that they could be used for amusement only. And there's nothing to show for certainty here which is which.

There was, I should touch on it, considerable evidence given by way of expert evidence dealing with gaming versus amusement devices. The criteria established for doing that are not, in my opinion, legal criteria, but criteria set up by investigators and persons who have some experience with the machines. Those criteria may satisfy investigators in their area of expertise that what they're dealing with is, in most cases, a gambling device, but that does not mean it must satisfy the Court, because when one looks at it, one still comes to the conclusion, or this one does, that the machine is capable of two things.

The trial judge's refusal to draw the inference that the "Lucky Eight Line" machines were in fact gaming devices was within his exclusive jurisdiction. In an appeal from an acquittal, an appellate court has no jurisdiction to consider the reasonableness of a trial judge's verdict. Its jurisdiction is limited by s. 676(1)(a) of the Criminal Code to questions of law alone:

676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone; . . .

The question of whether the proper inference has been drawn by a trial judge from the facts established in evidence is a question of fact: Lampard v. The Queen, 1969 695 (SCC), [1969] S.C.R. 373. Evidentiary sufficiency is also a question of fact: R. v. Warner, 1960 85 (SCC), [1961] S.C.R. 144. As such, there was no error of law with which the Court of Appeal could interfere in this case. It therefore erred in setting aside the appellant's acquittal.

I would allow the appeal and restore the acquittal.

Appeal allowed and acquittal restored.

Solicitors for the appellant: Ripley, MacCuish, Sydney.

Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.