Legality of poker a matter of opinion, says lawyer

Legal advice should be sought: minister

There is still doubt in at least one lawyer’s mind if playing poker is “criminal” here in the province.

Scott Burden was the lawyer defending some of those charged following an undercover RNC bust of a Texas Hold ’em tournament in Corner Brook last year. While 20 people were charged in the incident, the bulk of the charges were withdrawn by the crown and two people received discharges after pleading guilty.

Despite the turn-out, Burden said he was well prepared to defend his clients in court, and was confident they had a chance of winning.

“I would say there was some room for argument as to whether what was being done was legal or not,” Burden told The Western Star on Monday. “For reasons unrelated to guilt or innocence, the decision to enter a guilty plea and move on was made.”

The Corner Brook lawyer said he discussed the matter with a colleague and researched it thoroughly.

“We had come to the conclusion that, in a perfect world, it would have been nice just to get a decision from a court,” he said. “It didn’t happen for other reasons, but this wasn’t as open-and-shut a case as I think many people would have thought in terms of whether the activity itself was legal or illegal.

“There was an argument there to be made. That doesn’t mean I am encouraging it or discouraging it or anything else. I am just saying that in some ways it would have been nice to have it litigated and for the court to make a decision.”

Burden said time and money are big factors into deciding whether or not to go to trial, but also the possibility of coming out with a criminal record weighs heavily on an individual. However, a court decision may have determined that poker could be played here, he said.

Burden suspects the RNC would have consulted with the Department of Justice, and the crown attorney’s office would have given an opinion that it was illegal.

He said that opinion is only as good as another lawyer’s opinion. Burden said arguments about its legality surround such things as whether a bank is kept or whether the establishment is taking a “rake” from the prize pool.

In the previous case in Corner Brook, he felt withdrawing the charges against the players was the right thing to do.

“I think the crown or Department of Justice, just asked themselves if there was a public interest in seeing these 16, 17, 18 people convicted and left with a criminal record for behaviour that in most people’s eyes is not criminal per se,” he said. “Most of them were young people just starting their careers or students even. I think the crown just made a wise decision that they didn’t want to have these people strapped with criminal records.”

Burden only reviewed the matter from a criminal perspective, not a regulatory one.

“If cops are saying this stuff is criminal, I don’t necessarily agree with that,” he said. “I’m not saying it is not, but it is arguable. As to the licensing issue, I wouldn’t know because we never looked at it.”

Playing Texas Hold ’em has become commonplace throughout the province. It came to light again recently after the city’s RNC warned a local establishment to stop poker games that have been played there for the last six months or so.

Local players are not pleased that the games are being policed here and not elsewhere — namely in St. John’s — where poker games are openly advertised. For example, tournament schedules and results, along with the buy-in costs, are posted on the Dooly’s St. John’s website. They have even posted photos of the winners.

A local player told The Star the RNC in St. John’s stopped a game at Dooly’s last week, but the game continued after the police left and the money confiscated was returned the next day.

He also said police came into the same place the next night for an unrelated matter, and the people playing poker there that night were not bothered.

Const. Paul Davis, media relations officer, didn’t return messages for an interview as of The Star’s deadline. A call to the manager of one of the Dooly’s establishments in St. John’s wasn’t returned either.

Meanwhile, Marcel Etheridge, president of the Beverage Association of Newfoundland and Labrador, was recently quoted in the media, asking police to allow the poker games to continue.

Justice Minister Jerome Kennedy wasn’t available for an interview Monday, but he did release the following statement which didn’t present a clear cut guideline to follow.

“As a general rule under the Criminal Code of Canada gaming is illegal,” Kennedy said. “There are, however, certain exceptions. Investigations for alleged violations are conducted by the police.

“Within Newfoundland and Labrador, gaming events held by charitable organizations such as service clubs, charities, sports groups, etc. are regulated by the Trade Practices Division of the Department of Government Services.

“If anyone is conducting or interested in conducting a game in a bar, pool hall or any other licensed establishment, they are advised to seek legal advice.”

The Western Star

News Added: 11 December, 2007

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