The Supreme Court of Canada and Three-Card Monte
The Supreme Court of Canada recently rejected a class proceeding seeking damages arising from “inherently deceptive” video lottery terminal games. The claimants sought the disgorgement of profits made from the operation of these devices on the basis of “waiver of tort”, breach of contract and unjust enrichment.
The decision, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (CanLII) was released on July 24, 2020.
One of the claims advanced was that the video terminals were akin to the game of “three-card monte”, and thus unlawful.
Three-card monte is also known as “Find the Lady”. Three cards (usually two jacks and the queen of hearts) are placed face down by the dealer. The queen of hearts is shown to the player, and then placed face down again. The dealer then slides the cards around quickly. The player must then select the queen of hearts. If the player is correct, he or she wins. Betting is usually involved. The player puts up a bet. If the player wins, the player gets the bet back plus an equal amount from the dealer. If the player is incorrect, the dealer gets the player’s bet.
The game is often used as a con: a player is lured into playing, believing that the game is easy. The player often watches another player, a shill who is, unknown to the payer, working with the dealer, win lots of money. Sometimes the corner of the queen of hearts is bent, leading the player to believe that he or she has an unfair advantage. Through sleight of hand, the player usually loses.
Three-card monte and games similar to it are illegal under s. 206 of the Criminal Code. The Criminal Code defines “three-card monte”, as meaning “the game commonly known as three-card monte and includes any other game that is similar to it, whether or not the game is played with cards and notwithstanding the number of cards or other things that are used for the purpose of playing.
The Newfoundland and Labrador Court of Appeal held that expert evidence was required in order to determine the essence of three-card monte. The Supreme Court of Canada disagreed, holding that it was for the court to determine Parliament’s intention in prohibiting games similar to three-card monte. Referring to transcripts of the debate leading to the introduction of the law in 1921, they found that video lottery terminals were not similar to three-card monte. The law was directed at the “concrete attributes” of the game, and not “the abstract feature of deception”.
[Note to my kids: our weekly game of three-card monte is postponed indefinitely. You can keep your money, for now.]
Next week, I will discuss the Supreme Court of Canada’s comments on “waiver of tort” as a cause of action.
Thank you for reading.